carbonTRACK Terms and Conditions of Sale
These Terms together with the relevant Sales Confirmation and the Warranty constitute the entire Contract between carbonTRACK and the Purchaser, unless otherwise expressly agreed to in writing by carbonTRACK, and subject to any Prescribed Terms. No party can otherwise rely on an earlier document or anything said or done by or on behalf of another party before these Terms were agreed, delivered, executed or otherwise incorporated in to the Contract.
- Any instructions received by carbonTRACK from the Purchaser for the supply of Goods and/or the Purchaser’s acceptance of Goods supplied by carbonTRACK shall constitute acceptance of the Terms contained herein. These Terms shall then, without further notice and together with the Warranty and each relevant Sales Confirmation, apply to all future transactions between carbonTRACK and the Purchaser in relation to the sale and purchase of Goods, whether or not this document is delivered or executed in the course of the transaction.
- carbonTRACK recommends the Purchaser and/or End User keep a copy of the Terms for future reference.
- All Purchase Orders supplied by the Purchaser are subject to acceptance by carbonTRACK and no Contract between carbonTRACK and the Purchaser comes into existence until carbonTRACK issues a Sales Confirmation, in relation to the Purchase Order.
- No amendment, alteration, variation, waiver, abrogation or cancellation of these Terms shall be effective unless agreed to in writing by carbonTRACK.
Pricing and Charges
Subject to clause 2c), the price payable by the Purchaser for the Goods is the price stated in the Sales Confirmation issued by carbonTRACK.
- All prices are quoted in Australian Dollars, unless otherwise specified in writing, and are exclusive of GST if applicable.
- All quotations are based on current costs of production and are subject to amendment to meet any cost variation between the date of the quotation and the date of completion of the Purchase Order. In the event an amendment to costs is necessary after acceptance of a quotation, carbonTRACK will notify the Purchaser if the amendment results in an increase of the quotation by more than 10%.
- The Purchaser agrees that the price may be amended as per clause 2c) by up to 10% and/or to the maximum extent permitted by law.
- Reference to any Installations provided by carbonTRACK are references to Standard Installations unless otherwise specified.
- Unless otherwise specified, the price of carbonTRACK Goods includes subscription to a GSM, GPRS or UMTS network for a period of 24 months, after which, the Purchaser will be required to pay a subscription fee for continued access to the GSM, GPRS or UMTS network and/or use of the carbonTRACK Goods and/or access to or use of the User Interface.
- carbonTRACK may charge the Purchaser additional amounts for services provided, including but not limited to: changes to account details; changes to account structures; commencing or transferring services; data corrections; additional reports or analysis which are not currently provided via the user interface; repairs and maintenance that are not covered under warranty; and installation, or repair of the installation, of carbonTRACK products and/or peripherals. Prices and charges for these services are available on carbonTRACK’s price list and if not listed, are available on request from carbonTRACK.
carbonTRACK may choose at its absolute discretion to provide its regular Purchasers with a percentage discount off the list prices for its Goods and/or Services. This discount will be provided in writing and is subject to the following:
- Discount is applied to the list price excluding GST.
- The Purchaser must add GST at time of purchase to their Purchase Order.
- The discount only applies to items listed as standard in carbonTRACK’s published price list and does not apply to transport, service, spare parts or specially quoted or custom items.
- carbonTRACK reserves the right to change or withdraw the discount at any time.
- For orders of up to or equal to 3 units of Goods or Services, carbonTRACK may accept verbal and written Purchase Orders from a Purchaser or End User.
- Verbal Purchase Orders may be made in person or via telephone. Purchase Orders made in person will be verified by carbonTRACK in writing with a tax invoice and/or email confirmation. Telephone Purchase Orders may be verified by carbonTRACK in writing with a tax invoice and/or email confirmation.
- In circumstances where a Purchaser purchases Goods under a Contract, which constitutes an unsolicited consumer agreement under the Act, the Purchaser is entitled to a cooling off period of 10 Business Days during which it may cancel the Purchase Order in writing. The cooling off period commences from the day after receipt by the Purchaser of the Sales Confirmation, a copy of these Terms and the Warranty. During the Cooling off period, carbonTRACK must not require payment for any Goods or Services and must not provide any Goods or Services.
- For orders of four or more units of Goods and/or Services, the Purchaser must provide a written Purchase Order addressed to carbonTRACK (Aust) Pty Ltd setting out the following:
- Detailed description of the Goods and/or Services required;
- The quantity of Goods and/or Services required;
- The price of each of the Goods and/or Services required; and
- Details of any special instructions, including the date by which the Goods and/or Services are required and the means of delivery.
- For account customers, this purchase will be processed under the Purchaser's credit account (subject to the account still being open and within their credit terms). For non- account customers, the purchase will be processed in accordance with these Terms.
- carbonTRACK will check the details of the Purchase Order and if all is in order, will issue a Sales Confirmation. carbonTRACK reserves the right at its sole discretion to accept, reject or cancel a Purchase Order at any time.
- Unless the Purchaser raises an objection to the Sales Confirmation, in writing, within 48 hours of transmission of the Sales Confirmation, carbonTRACK will proceed with the Purchase Order according to the Sales Confirmation issues. Failure to question pricing or delivery conditions at this time will void the Purchaser's right to claim credit or alter conditions for the items ordered pursuant to the Purchaser Order in question.
- carbonTRACK will process each Purchase Order as soon as possible and will endeavour to deliver the Goods or provide the Services in accordance with the delivery instructions provided. However, carbonTRACK provides no guarantees as to delivery times, nor does it provide any assurances that quoted delivery times can be met.
- Unless otherwise agreed by the parties in writing,
- Purchasers without an account or credit facilities with carbonTRACK: must pay for Goods and/or Services in full, at the time of submitting a Purchase Order.
- Purchasers with account and/or credit facilities subject to the account still being open and within their credit terms): payment shall be made in accordance with the terms set out in the Account or Credit Application approved in writing by carbonTRACK, or if there are no terms set out in the Account or Credit Application, payment terms shall be 50% payable on provision of a Purchase Order and 50% payable within 30 days of delivery of the Goods and/or Services. Where the Purchaser is not within their credit terms, the Purchaser must pay for Goods and/or Services in full, at the time of submitting the Purchase Order.
Time for payment of the price of the Goods shall be of the essence of the Contract. If the Purchaser fails to pay the price when due, carbonTRACK will give 7 days’ written notice of the default. If payment is not received by the expiry of the 7 days, carbonTRACK has the absolute discretion to:
- treat the Contract as repudiated by the Purchaser; and/or
- suspend delivery of the Goods which are the subject of the Contract for which payment has not been received by the due date, or the subject of any other Contract between carbonTRACK and the Purchaser without any liability whatsoever arising as a consequence of the suspension of delivery.
Further, if the Purchaser fails to pay carbonTRACK in accordance with these Terms, the Purchaser will be liable to pay carbonTRACK any costs and expenses it incurs in taking steps to recover payment of the unpaid price (including any legal costs associated with taking such steps) and interest at the penalty rate fixed under the Penalty Interest Rate Act 1983 (Vic).
- A surcharge of not more than 1% plus GST may be applied to all payments by credit card. carbonTRACK accepts MasterCard and Visa only.
- Notwithstanding any rights of lien to which carbonTRACK may otherwise be entitled, the Purchaser acknowledges and accepts that carbonTRACK shall have a specific lien (including a right of sale) over the Goods the subject of the Contract and any Goods the subject of any other Contract with the Purchaser until the price of the Goods has been paid in full. The Purchaser shall not be entitled to make any deduction from the price of the Goods in respect of any off-set or counter claims.
- The Purchaser is required to pay the delivery charges incurred by carbonTRACK for delivery of Goods to the Purchaser’s nominated location. carbonTRACK may also charge a handling fee of up to 10% of the delivery cost.
- The Purchaser acknowledges and accepts that any time or date named and accepted by carbonTRACK for completion, delivery, despatch, shipment or arrival of the Goods or for tender of any documents is an estimate only and does not constitute a condition of the Contract or part of the description of the Goods and is not of the essence of the Contract.
- carbonTRACK shall advise the Purchaser of any anticipated delay upon it becoming apparent to carbonTRACK.
- The Purchaser shall notify carbonTRACK within 7 days of delivery of any short fall in or loss or damage to Goods delivered. If the Purchaser does not notify the Purchaser of any short falls in, or loss or damage to any of the Goods delivered, the Purchaser is deemed to have accepted the Goods and confirmed that they are in order and in accordance with the Purchase Order. Subject to the requirements of any Prescribed Terms, the Purchaser is not entitled to seek any remedy in respect to any shortage, loss or damage to Goods if it does not give notification to carbonTRACK as outlined in this clause.
- In the event that the Purchaser fails to take delivery of the Goods, for whatever reason, carbonTRACK may charge an additional fee equal to the delivery charge to the Purchaser for each failed delivery.
- Delivery times cannot be guaranteed under normal terms of delivery. If the Purchaser requires a specific delivery time, a surcharge may apply and be payable in full prior to delivery. This surcharge will vary according to delivery costs.
- The Purchaser acknowledges that it shall not be entitled to any damages (liquidated or otherwise) in respect of any delay whatsoever.
- carbonTRACK will choose the method and/or the carrier (transport company) with whom the freight is forwarded. Should the Purchaser require the freight to be delivered using a particular carrier, then the Goods will be supplied free on board to the Purchaser’s transport company from carbonTRACK’s warehouse, such that the Purchaser assumes ownership and risk of the Goods once its transport company collects the Goods in question from cabonTRACK's warehouse. It should be noted that carbonTRACK will only agree to provide Goods free on board if the Goods have been paid for in full prior to collection of same by the Purchaser's nominated transport company.
- 1. For deliveries to a Reseller:
- Unless otherwise agreed in writing by carbonTRACK, carbonTRACK may make partial deliveries or deliveries by instalments in any amounts it may determine and each such partial delivery or delivery by instalments shall be deemed to be a separate Contract and these Terms shall apply to each partial delivery or delivery by instalments.
- carbonTRACK may deliver up to 5% more or less of the amount specified for delivery, subject only to an appropriate adjustment to the price payable, in full satisfaction of carbonTRACK's obligations pursuant to the Contract.
- Goods deliveries are to ground floor level, kerbside or loading dock area only.
- The Purchaser acknowledges that it is responsible for providing labour and equipment for unloading and positioning the Goods on site at its own expense.
- The Reseller will be deemed to have accepted delivery and liability for the Goods immediately once carbonTRACK notifies the Reseller that they are ready for collection or when they are delivered to a carrier or to the Reseller’s business premises or site whether attended or not.
- Insurance for Goods in transit is not included in the purchase price. If insurance is required by the Purchaser, it must be arranged by the Purchaser either directly with the carrier or their insurance agent. This clause is subject to clause 13.
- Purchase price or delivery fees do not include unpacking, placement or positioning of equipment or connection to services or removal of rubbish and packing crates.
- Advanced and Held Orders
carbonTRACK cannot guarantee to hold stock of pre-orders for longer than two (2) weeks. If the Purchaser delays delivery for whatever reason by more than two (2) weeks, carbonTRACK reserves the right to reallocate stock to other Purchase Orders as it sees fit.
- Should the Purchaser cancel, for any reason, a Purchase Order for Goods which were especially procured for the Purchaser, custom ordered, imported, manufactured or made to order by carbonTRACK or which were of a particular nature not normally stocked by carbonTRACK, the Purchaser must pay carbonTRACK in full for those Goods.
- Should the Purchaser cancel a Purchase Order for any Goods not of the kind described in clause 8a) above for any reason, the Purchaser will incur a 20% restocking fee to cover costs of Purchase Order processing, despatch, delivery and re-warehousing.
- Warranty and Exclusion of Liability subject to the Prescribed Terms.
Please refer to the carbonTRACK Warranty (Australia) which is incorporated into and forms part of these Terms. The carbonTRACK Warranty (Australia) can be found at www.carbonTRACK.com.au/legal
Return of Goods
- Goods supplied to the Purchaser are not returnable except as provided in the Warranty.
- If the Goods are in accordance with the Warranty and all Prescribed Terms and have otherwise been provided in accordance with the Contract, carbonTRACK may from time to time under exceptional circumstances and in its absolute discretion, choose to accept the return of Goods from the Purchaser. A cancellation fee of up to 20% will apply and the Purchaser will also reimburse carbonTRACK for all costs associated with the delivery and return of the Goods.
- General Maintenance and Repairs
Goods must be repaired and maintained by a qualified technician. carbonTRACK technicians and carbonTRACK Authorised Service Agents are experienced technicians who understand the Goods and carry commonly used spare parts. Contact carbonTRACK’s national service number (1300 288 648) for details of your nearest carbonTRACK authorised service agent.
Service and Spare Parts
- While carbonTRACK will use reasonable commercial endeavours to have all necessary spare parts available for the purpose of repair or service, carbonTRACK is not liable for delays in the sourcing of parts not commonly required, or due to circumstances beyond the control of carbonTRACK.
- All carbonTRACK Goods are designed and manufactured to the highest standards of quality and durability. However, should a repair become necessary, carbonTRACK original spare parts shall be available for many years following the end of series production, to ensure that any possible problem relating to the parts can be resolved.
- Goods situated outside of carbonTRACK’s service region may incur additional fees (such as travel and transportation) in respect of service or repair, details of which will be provided to the Purchaser prior to the entry into any agreement relating to such service or repair.
Risk and Title
- Unless the Goods are provided "free on board", risk in and liability for the Goods supplied by carbonTRACK passes to the Purchaser upon delivery even though title in the Goods has not passed to the Purchaser at that time.
- Title in the Goods supplied by carbonTRACK to the Purchaser will remain with carbonTRACK until all amounts owning by the Purchaser to carbonTRACK have been paid in full. Until that time, the Purchaser shall store the Goods, including Goods into which the supplied Goods have been mixed, in such a manner as to show clearly that they are the property of carbonTRACK and shall, upon carbonTRACK's demand, deliver up such Goods to carbonTRACK. In default of such delivery, the Purchaser grants permission to carbonTRACK and its servants and agents to enter the Purchaser's premises (whether owned by it or otherwise) at any time without notice to repossess the Goods.
- Subject to the PPSA, until such time as the Goods have been paid for in full, the Purchaser is at liberty to sell the Goods, including Goods into which carbonTRACK‘s Goods have been mixed, in the ordinary course of its business, and the Purchaser shall hold the proceeds thereof in trust for carbonTRACK and promptly account to carbonTRACK for those proceeds in payment of the purchase price for the Goods.
- The Purchaser and carbonTRACK agree that the provisions of this clause apply notwithstanding any agreement between the parties under which carbonTRACK grants credit to the Purchaser.
Personal Property Securities Act 2009
- The terms "Collateral", "Debtor', "Financing Change Statement", "Financing Statement", "Grantor", "Proceeds", "Secured Party", "Security Agreement" and "Security Interest" have the meanings given in the PPSA.
- The Purchaser acknowledges and agrees that by accepting these Terms, which form part of the Contract, and constitute a Security Agreement that covers the Collateral for the purposes of the PPSA.
- carbonTRACK holds (as Secured Party) a Security Interest over all of the present and after acquired Goods supplied by carbonTRACK to the Purchaser and any Proceeds of the sale of those Goods
- The PMSI granted herein will continue to apply to any Goods coming into existence or proceeds of sale of Goods coming into existence.
- carbonTRACK will continue to hold a Security Interest in the Goods in accordance with and subject to the PPSA, notwithstanding that the Goods may be processed, commingled or become an accession with other Goods.
- Any carbonTRACK Security Interest will be a continuing and subsisting interest in the Collateral with priority to the fullest extent permitted by law over all over registered or unregistered Security Interest.
- Until title in the goods pass to the Purchaser, it will keep all Goods supplied by carbonTRACK free, and ensure all such Goods are kept free, of any charge, lien or Security Interest and not otherwise deal with the Goods in a way that will or may prejudice any rights of carbonTRACK under the Contract or the PPSA; and
- In addition to any other rights under these Terms or otherwise arising, carbonTRACK may exercise any and all remedies afforded to it as a Secured Party under Chapter 4 of the PPSA including, without limitation, entry into any building or premises owned, occupied or used by the Purchaser, to search for and seize, dispose of or retain those Goods in respect to which the Purchaser has granted a Security Interest to carbonTRACK.
- The Purchaser agrees to:
- Sign any further documents and provide such information which carbonTRACK may reasonably require to register, amend or update a Financing Statement or Financing Change Statement in relation to a Security Interest on the PPS Register.
- Indemnify and upon demand reimburse carbonTRACK for all expenses incurred in registering a Financing Statement or Financing Change Statement on the PPS Register or releasing any Security Interests.
- Not register or permit to be registered a Financing Change Statement in the Collateral without the prior written consent of carbonTRACK; and
- Provide carbonTRACK not less than 7 days prior written notice of any proposed change in the Purchaser's name, address, contact numbers, business practice or such other change in the Purchaser's details registered on the PPS Register to enable carbonTRACK to register a Financing Change Statement if required.
- carbonTRACK and the Purchaser agree that sections 96, 125 and 132(3)(d) and 132(4) of the PPSA do not apply to the Security Agreement created under this Contract.
- The Purchaser hereby waives its rights to received notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
- The Purchaser waives its rights as a Grantor and/or a Debtor under sections 142 and 143 of the PPSA.
- Unless otherwise agreed in writing by carbonTRACK, the Purchaser waives its right to receive a Verification Statement in accordance with section 157 of the PPSA.
- The Purchaser shall unconditionally ratify any actions taken by carbonTRACK under this clause 15.
- This clause 15 will survive the termination of the Contract to the extent permitted by law.
- To the extent permissible at law (including under the Act), carbonTRACK is not bound by any Warranty (and the Purchaser agrees not to make any claim against carbonTRACK in relation to any Warranty) in respect of Goods or Services unless all Goods and Services have been paid for in full without set-off or deduction of any kind.
- Without limiting any other provision of these Terms, if the Purchaser makes a payment to carbonTRACK at any time whether in connection with the supply of Goods or otherwise, carbonTRACK may, at its absolute discretion, apply that payment to first satisfy obligations that are not secured, then obligations that are secured, but not by a purchase money security interest, in the order in which those obligations were incurred, and then obligations that are secured by a purchase money security interest in the order in which those obligations were incurred.
The Purchaser shall keep carbonTRACK indemnified against all costs, claims, demands, expenses and liabilities of whatsoever nature, including, without prejudice to the generality of the foregoing, claims of death, personal injury, damage to property and consequential loss (including loss of profit) which may be made against carbonTRACK or which carbonTRACK may sustain, pay or incur as a result of or in connection with the Purchaser's sale, export, import or use of the Goods, unless such costs, claim, demand, expense or liability is directly and solely attributable to any breach of contract or guarantee or Warranty by, or negligence of, carbonTRACK or its duly authorised employee or agent.
Licenses, Duties, etc.
The Purchaser is solely responsible for the payment of any taxes and for obtaining and maintenance any necessary export or import licenses, authorisations or consent in respect of the Goods. carbonTRACK (Aust) Pty Ltd is under no liability whatsoever in respect of:
- Goods that are exported or imported without a necessary licence, authorisation or consent; or
- The exporting or importing of Goods without any necessary licence, authorisation or consent.
Health and Safety
It is the Purchaser's responsibility to ensure that all applicable health and safety regulations are observed and other appropriate steps taken in relation to the storage, handling and the use of the Goods and, where information is supplied to the Purchaser on potential hazards relating visitors and customers. Without prejudice to the foregoing, it is also the Purchaser's responsibility to provide safe facilities for the reception of Goods into storage.
In the event of a product recall, the Purchaser must give carbonTRACK such assistance as carbonTRACK reasonably requires in relation to that recall.
Goods and Services Tax (GST)
The parties agree that unless stated otherwise, all dollar amounts that appear in these Terms are exclusive of GST.
- Amounts otherwise payable do not include GST
To the extent that a party makes a taxable supply in connection with these Terms, except where express provision is made to the contrary, and subject to this special condition the consideration payable by a party under these Terms represents the value of the taxable supply for which payment is to be made.
Liability to pay GST
Subject to clause 19b, if a party makes a taxable supply in connection with these Terms for a consideration which, under clause 19b represents its value, then the party liable to pay for the taxable supply, must also pay at the same time and in the same manner as the value is otherwise payable, the amount of any GST payable in respect of the taxable supply.
A party's right to payment under clause 19c is subject to a valid tax invoice being delivered to the party liable to pay for the taxable supply.
Intellectual Property Rights
- The Goods and Services and all worldwide copyrights, trade marks, trade secrets and all and any other intellectual property rights in respect of the Goods and Services are the exclusive property of carbonTRACK or its licensors. The Purchaser does not acquire ownership of copyright, trade, trade secrets and other intellectual property rights in any part of the Goods and Services by virtue of these Terms.
- Except for any licence rights expressly granted to the End User under the End User Licence Agreement, the Purchaser and/or End User does not obtain and will have no intellectual property rights in carbonTRACK Goods and/or Services, including but not limited to hardware, software, firmware, middleware, peripherals, documentation, enclosures, packaging, methods of installation, maintenance and/or repair, trademarks or other mark, or anything else provided by and/or associated with carbonTRACK.
- The Purchaser shall not alter, remove or in any way tamper with the internal hardware, firmware, middleware, any other intellectual property, and any of the trade or other marks or numbers of carbonTRACK attached to or placed upon the Goods.
- All suggestions, feedback provided to the Purchaser by carbonTRACK with respect to the Goods and Services shall be carbonTRACK’s property. carbonTRACK may use, use, copy, modify, publish or redistribute the suggestions, feedback and /or suggestions and its contents for any purpose and in any way without compensation to the Purchaser. The Purchaser agrees that carbonTRACK does not waive any rights to use similar or related ideas previously known to carbonTRACK, developed by its employees, or obtained from other sources.
- a) carbonTRACK shall not be liable whatsoever for any delay or failure on its part to perform any obligation under the Contract when due, whilst and to the extent that such failure or delay is due directly or indirectly to any event of force majeure. Without limiting the generality of the foregoing, this includes any liability whatsoever for any delay in completion, delivery, despatch, shipment or arrival of the Goods or in the tender of any documents or the like.
- b) “Event of force majeure” includes any acts of God, war, riots, strikes, lock outs, industrial disputes (whether involving the workforce or any other party), fires, break downs, mechanical failures, interruptions of transport, Government action or any other cause whatsoever, whether or not of a like nature to those specified above, outside the reasonable control of carbonTRACK.
- c) If there is an event of force majeure, carbonTRACK will notify the Purchaser of the event and the likely impact on its performance under the Contract. If the event affects the capacity of carbonTRACK to complete its material obligations under the Contract in a timely manner, carbonTRACK may by notice to the Purchaser terminate the Contract, and the Purchaser acknowledges and accepts without any liability whatsoever on its part arising from such termination.
A notice required or permitted to be given by one party to another under these Terms must be in writing and is treated as being duly given if it is delivered, sent by pre-paid mail, facsimile or email to that other party's postal address, facsimile number or email address as follows:
- carbonTRACK (Aust) Pty Ltd
Level 1, 58 Burwood Road
Hawthorn VIC 3122
or as notified in writing from time to time.
- Purchaser: the postal address, facsimile number or email address as noted in their last Purchase Order and/or Account or Credit Application.
Service of Notice
A notice given to a party in accordance with clause 22.1 is treated as having been received:
- (if delivered at that party's address) when delivered;
- (if sent by pre‑paid mail) on the third Business Day after posting;
- (if sent by facsimile) on the date it was sent if sent prior to 5pm on a Business Day, otherwise the following Business Day, provided the sender's facsimile machine issues a report confirming the transmission was sent in full;
- (if sent by email) on the date it was sent if sent prior to 5pm on a Business Day, otherwise the following Business Day, provided no message was received by the sender suggesting the email bounced or there was any other error or delay in sending.
The Purchaser may not assign or transfer or purport to assign or transfer the Terms or any of its rights or obligations under or in connection with these Terms to any other person or corporation whatsoever.
carbonTRACK reserves the right to sub-contract the performance of any Contract or part thereof to any other party or person or corporation it may determine.
- If the Purchaser commits or is involved in any act of insolvency, it will be deemed to be in default under these Terms.
- An act of insolvency includes bankruptcy, liquidation, receivership, administration or the like and failure to pay in accordance with these Terms. Each of the following is an Event of Default:
- any event occurs or circumstances arise which, in the reasonable opinion of carbonTRACK, is likely materially and adversely to affect the ability of the Purchaser to perform all or any of its obligations under or otherwise to comply with the Terms;
- the Purchaser suspends payment of its debts;
- a warranty given by the Purchaser in these Terms is materially incorrect;
- it becomes unlawful for the Purchaser to perform its obligations under these Terms;
- where the Purchaser is a body corporate:
- the Purchaser becomes an externally-administered body corporate under the Corporations Act 2001 (Cth);
- steps are taken by any person towards making the Purchaser an externally-administered body corporate;
- a controller (as defined in section 9 of the Corporations Act 2001 (Cth)) is appointed of any of the property of the Purchaser or any steps are taken for the appointment of such person;
- the Purchaser is taken to have failed to comply with a statutory demand within the meaning of section 459F of the Corporations Act 2001 (Cth); or
- a resolution is passed for the reduction of capital of the Purchaser or notice of intention to propose such a resolution is given, without the prior written consent of carbonTRACK; or
(f) where the Purchaser is a natural person and:
- authorises a registered trustee or solicitor to call a meeting of his or her creditors or proposes or enters into a deed of assignment or deed or arrangement or a composition with any of his or her creditors;
- a person holding a security interest in assets of the Purchaser enters into possession of or takes control of any of those assets or takes any steps to enter into possession of or take control of any of those assets; or
- the Purchaser commits an act of bankruptcy.
Proper Law and Jurisdiction
All Contracts made between carbonTRACK and the Purchaser are governed by the laws of Victoria, Australia. The Purchaser agrees to submit to the non-exclusive jurisdiction of the Courts of Victoria.
If a dispute arises out of or relates to these Terms or Contract, except where urgent interlocutory relief is sought, neither party may commence legal proceedings unless:
- The Party claiming a dispute has given written notice of the Dispute to the other; and
- The Parties endeavour, in good faith, to resolve the dispute expeditiously by any means upon which they mutually agree.
- If the dispute remains unresolved within 14 days after notice has been given under 22, the Parties shall attend mediation with a mutually appointed mediator. If the Parties cannot agree on a mediator, a mediator shall be appointed by the President of the Law Institute of Victoria or his/her nominee and the Parties. The costs of the mediation shall be born equally between the Parties.
- If the dispute is not resolved via mediation, either party may institute legal proceedings concerning the subject matter of the dispute.
- Any provision in these Terms which is invalid or unenforceable is to be read down, if possible, to such an extent as is reasonable in the circumstances so as to be valid and enforceable, and is otherwise capable of being severed to the extent of the invalidity or unenforceability, without affecting the validity of the remainder of these Terms or the enforceability of that provision in any other jurisdiction.
- These Terms shall be binding on the executors, administrators, successors, substitutes and permitted assigns of each of the Parties.
A provision of these Terms which can and is intended to operate after completion of any transaction contemplated by it remains effective.
Where a provision of these Terms has the effect of requiring anything be done on or by a day which is not a Business Day, it must be interpreted as if it required it to be done on or by the next Business Day.
A provision or any part of a provision in these Terms must not be construed to the disadvantage of a party merely because that party was responsible for the preparation of these Terms and/or the inclusion of the provision or part of the provision.
Each party must do, at its own expense, everything reasonably necessary (including executing documents) to give full effect to these Terms and any transactions contemplated by it.
Each party must bear its own costs in relation to entrance into these Terms.
Where these Terms contemplate that a Party may agree or consent to something (however it is described), that Party may:
- agree or consent, or not agree or consent, in its absolute discretion; and
- agree or consent subject to conditions, unless these Terms expressly contemplate otherwise.
None of the conditions or provisions of these Terms shall be held to have been waived by any act or knowledge on the part of either party, except by an instrument in writing by a duly authorised officer or representative of the parties. Further, the waiver by either party of any right hereunder or the failure to enforce or at any time any of the provisions of these Terms, or any rights hereunder or any breach or failure of performance of the other party.
- In these terms and conditions of sale (Terms);
- Account means an arrangement between the Purchaser to purchase Goods and/or Services from carbonTRACK on terms that do not require the Purchaser to effect payment in full for said Goods and/or Services;
- Account Application has the same meaning as Credit Application;
- Act means the Competition & Consumer Act 2010 (Cth);
- Business Day means a day that is not a Saturday, a Sunday or a public holiday in the place concerned;
- carbonTRACK means carbonTRACK (Aust) Pty Ltd (ACN 162 220 662) and its successors, assigns and nominees which accepts the Purchaser's order by the issue of a Sales Confirmation;
- Claim includes a claim, notice, demand, action, proceeding, litigation, investigation, judgment, damage, loss, cost, expense or liability however arising, whether present, unascertained, immediate, future or contingent, whether based in contract, tort or statute and whether involving a third party or a party to this Agreement;
- Collateral has the meaning given under the PPSA and in particular for the purposes of this Contract, the personal property that is not used predominately for personal, domestic or household purposes as identified in clause 6 hereof to which the Security Interest has attached;
- Contract means these Terms, together with the Warranty and a Sales Confirmation issued by carbonTRACK to the Purchaser;
- Credit Application means an application by the Purchaser to purchase Goods and/or Services from carbonTRACK on terms that do not require the Purchaser to effect payment in full for said Goods and/or Services;
- Electrical System consists of any and all of the components used to supply, transmit and use electric power including but not limited to switch boards, distribution boards, meters, circuit breakers, fuses, wiring, cabling, conduits, housing, locks, latches, fasteners and fixings.
- End User means a Purchaser who buys or has agreed to buy Goods from carbonTRACK for their own use;
- Goods means any item of whatsoever nature which is sold or to be sold by carbonTRACK to the Purchaser;
- GST means goods and services tax under A New Tax System (Goods and Services Tax) Act 1999 (Cth) and any legislation substituted for, replacing or amending that Act, and any words and expressions used in these Terms that are defined in that Act have the same meaning in these Terms;
- PMSI means the Purchase Money Security Interest as defined by the Personal Property Securities Act 2009 (Cth);
- PPSA means the Personal Property Securities Act 2009 (Cth) and any regulations made pursuant to it as amended;
- PPS Register means the personal property securities registered established under section 146 of the PPS;
- Prescribed Terms means any terms, conditions, guarantees and warranties which the Act and any other law expressly provides may not in respect of the Contract be excluded, restricted or modified, or may be excluded, restricted or modified only to a limited extent;
- Purchase Order means the verbal order from the Purchaser or written order signed by the Purchaser constituting the Purchaser’s offer to purchase the Goods to which these Terms apply;
- Purchaser means the person or corporation, including but not limited to End user and Reseller, who buys or has agreed to buy the Goods from carbonTRACK;
- Reseller means a Purchaser who buys or has agreed to buy the Goods from carbonTRACK or an Authorised carbonTRACK Reseller for resale to other persons or corporations and is authorised by carbonTRACK to resell Goods to other persons or corporations (also referred to as an Authorised carbonTRACK Reseller);
- Sales Confirmation means the document so titled issued by carbonTRACK that formally accepts the order for Goods from the Purchaser;
- Security Interest has the meaning given under the PPSA;
- Service Agent means a Licensed Electrician who has been trained to install, maintain and repair carbonTRACK Goods and is authorised by carbonTRACK to install, maintain and repair carbonTRACK Goods (also referred to as an Authorised carbonTRACK Service Agent or carbonTRACK Service Agent);
- Services means any services of whatsoever nature which is sold or to be sold by carbonTRACK to the Purchaser;
- Standard Installation means the installation of carbonTRACK Goods, in accordance with carbonTRACK’s Installation Instructions and/or Manual at a location within an Australian mainland capital city metropolitan area, no more than 1.8 meters above ground level, to an Electrical System which meets all applicable regulatory standards and does not require any modification, repair or replacement, using 60 Ampere current clamps/transformers supplied by carbonTRACK and calibrated to carbonTRACK Goods and connected around cables which are no more than 12 mm in diameter, and the installation takes no more than 2 hours for one person who is an Authorised carbonTRACK Service Agent to complete in one session using procedures/techniques which meet all applicable safety requirements.
- Standard Specifications means carbonTRACK’s standard specification for the Goods current at the time the Goods are delivered to the Purchaser. Copies of the Standard Specifications are available on request from carbonTRACK;
- Terms means these carbonTRACK Terms and Conditions of Sale (Australia)
- User Interface means the user portal located at my.carbontrack.com.au and the carbonTRACK smart phone applications.
- The headings in these Terms are provided for convenience only and do not affect the interpretation.
- Words in the singular include the plural and vice versa;
- Words importing a natural person include corporations, firms unincorporated associations, bodies corporate, authorities and agencies;
- A reference to a person includes the person’s executors, administrators, successors, substitutes and permitted assigns and agents;
- A reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, reenactments or replacements of any of them occurring at any time;
- A reference to any party where that party is made up of more than one person, includes each of them severally;
- A reference to the whole of a thing includes a reference to a part of that thing;
- The words “include” or “including” are to be construed without limitation;
- Where a word or phrase is given a defined meaning another grammatical form of that word or phrase has a corresponding meaning;
- Words importing a gender include all genders; and
- An agreement, representation, covenant or warranty made by two (2) or more persons is in favour of then jointly and severally.
- An agreement, representation, covenant or warranty in favour of two (2) or more persons is in favour of then jointly and severally.
Credit Line, Facility and/or Limits
carbonTRACK can vary or withdraw any credit facility or limit it at any time at its discretion and without any liability to the Purchaser or any other party.
Credit Information and Privacy Act 1988 (Cth):
Where carbonTRACK collects personal information that carbonTRACK is likely to disclose to a CRA or CRB please note:
- i) The CRA or CRB may include that information in reports provided to carbonTRACK to assist it to assess the Purchaser’s creditworthiness;
- ii) If the Purchaser fails to meet payment obligations in relation to consumer credit or commits a serious credit infringement, carbonTRACK may be entitled to disclose this to the CRA or CRB;
iii) The Purchaser may access this information for the purpose of requesting carbonTRACK to correct the information and make a complaint to carbonTRACK;
- iv) The Purchaser warrants to carbonTRACK that it has (where it is a company) obtained the consent of its directors for carbonTRACK to carry out the searches specified in subclause (a) and (b) above.
Changes to the Terms and Conditions of Sale
From time to time we may need to update these Terms of Sale. If we do so, we will post the updated version on our website www.carbonTRACK.com.au/legal. Any updates to the Terms will be effective from the date on which they appear on carbonTRACK’s website. The Purchaser should read the Terms regularly to ensure it is aware of the current terms and conditions applicable.
AUSTRALIAN CONSUMER LAW WARRANTY
Our Goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the Goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.