AGREEMENT FOR THE SUPPLY OF GOODS AND SERVICES

1. AGREEMENT

The original licensed end user purchaser (the “Customer”) agrees to purchase from Tracking Solutions Pty Limited (the “Company” or “Tracking Solutions”), and Tracking Solutions agrees to sell to the Customer, hardware goods (“Goods”) if and as selected in the attached order form (“Order Form”), which constitutes part of this Agreement.
The Customer agrees to receive from the Company, and the Company agrees to provide to the Customer, the MARCUS® vehicle tracking services (the “Service”) if and as selected in the Order Form.
Where this Agreement is also for the purchase of services and/or for the use of software applications, this Agreement incorporates an End User Licence Agreement.

2. TERMS OF PAYMENT

For purchases of Goods:

If the Customer has been pre-approved for credit by the Company, then all amounts due to The Company for the purchase of hardware shall be paid in full by the Customer no later than thirty (30) days from the date of delivery.
If the Customer has not been pre-approved for credit by the Company, then the Customer will pay all invoices for the purchase of Goods in advance and the Company will have the right to ship the items only when payment from the Customer becomes available to the Company.

For the purchase of Service, the Customer agrees that the Company will invoice the Customer monthly in advance, with the first invoice issued at the time in which the completed Order Form is received by the Company.
The Company will retain at all times the right to change the payment terms extended to the Customer or to cancel the order if the Company, at its exclusive and absolute discretion, determines that the Customer’s financial condition or previous payment record warrants such a change.
The Customer agrees to the Company invoicing a $5 late fee for every payment which is not completed within the term stated in the invoice issued by the Company.

3. LICENCE

In consideration for the payment of the fees detailed in the Order Form, and as per this End User License Agreement, the Company grants to the Customer a personal, non-transferable, nonexclusive licence to execute the computer programs on the Goods in machine-readable form only (the “Software”). The Customer shall not reverse engineer, decompile or disassemble the Goods or the Software, or any other licensed Products.

4. LIMITED WARRANTY

Goods

The Company warrants to the Customer only that the Goods purchased hereunder will be free from defects in workmanship and materials (“Limited Warranty”) for a period of one (1) year from the date of purchase (the “Warranty Period”).
This Limited Warranty does not apply to normal wear and tear and does not cover repair or replacement of Goods damaged by tampering, misuse, accident, abuse, neglect, inadequate installation, misapplication, alteration of any kind, disaster or defects due to repairs or modifications made by anyone other than the Company or its authorised service representative. The Goods do not contain any end user serviceable parts, and any opening or attempted opening of the Goods shall constitute a breach of this Agreement by the Customer. All Goods are shipped in working condition. It is the Customer's responsibility to verify that Goods are working properly upon receipt; The Customer WAIVES ALL CLAIMS FOR DEFECT, DAMAGE, SHORTAGE, OR OTHERWISE UNLESS MADE IN WRITING TO THE COMPANY WITHIN 10 DAYS OF RECEIPT. The Company, at its sole discretion, will repair or replace the Goods in accordance with the terms of this Limited Warranty and of the Company’s Return Policy as defined in Clause 8 of this Agreement.
To the full extent permitted by applicable legislation, repair or replacement by The Company as stated above is your exclusive remedy under this Limited Warranty. The Company shall not be liable for any special, incidental, consequential or exemplary damages for breach of this Limited Warranty. The Company disclaims to the full extent permitted by applicable legislation all other warranties, whether express or implied of merchantability, fitness for a particular purpose or any warranty arising out of any proposal, specification or sample. Any Software provided with the Goods is provided “as is” without warranty. this Limited Warranty gives you specific legal rights and you may also have additional rights under Commonwealth or State/Territory Legislation, such as the Trade Practices Act 1974.

ASP Application

The Company warrants, for the Customer’s benefit alone, that the Internet-based application that the Company makes available to the Customer via the Internet for use with the Service (the “ASP Application”) conforms in all material respects to the specifications for the current version of the ASP Application. The Company has no control over Internet performance or access, or over suppliers of services essential for the delivery of the Service, such as the Global Positioning System (GPS) satellite network and the wireless data networks that the Company utilises and therefore disclaims all performance warrantees related to such services. Under some transient conditions (e.g. the mobile assets pass under bridges, through tunnels, etc.) erroneous data, such as speed, location, direction or operational status, may be transmitted. If the Customer purchased the Device(s) from a Dealer, then the Dealer will provide telephone support for the Device and the Service to the Customer based on the support program offered by the Dealer. The Dealer or the Company, as applicable, will provide telephone support only to Customers through the support telephone numbers and during the support hours designated by Dealer or the Company.

5. LIMITATION OF LIABILITY

Goods

The total liability of the Company with respect to any and all claims, regardless of the form of action, whether in contract, tort (including negligence and product liability) or otherwise, arising out of or in connection with this End User License Agreement or use of any Products OR Software shall not exceed the price paid to the Company allocable to the actual item which gave rise to the claim. In no event shall the Company be liable for any special, consequential, incidental, indirect or exemplary damages, including, but not limited to, loss of profit or revenues, loss of use of the Goods, loss of data, cost of capital, cost of substitute goods, facilities, services or replacement power, downtime costs or claims of Customers for such damages, even if the Company knew of or should have known of the possibility of such damages.
The Company shall have no liability whatsoever to the Customer for any claims of patent, copyright or other intellectual property right infringement and/or misappropriation of trade secrets, made against the Customer in connection with the Customer’s purchase and/or use of the Goods and/or of any software.

ASP Application

The Customer’s sole remedies for breach of this Agreement by the Company, for loss or damage, whether direct or indirect, caused by partial or total failure, inability to use or non-performance of the ASP Application, regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise, shall not exceed the total charges paid by the Customer during the month preceding the Customer’s claim.

6. TITLE

Full title to the Goods sold to The Customer hereunder shall remain with the Company until the total of all payments due hereunder shall have been made. The Customer agrees to do all acts necessary to maintain the Company’s title and to perfect a security interest in the Goods in favour of the Company.

7. DELIVERY AND RISK OF LOSS

Any shipping dates are approximate and are based upon prompt receipt of all necessary information. The Company will use reasonable efforts to meet the delivery dates requested by the Customer but will have no liability whatsoever for delays in delivery for any reason. The Company reserves the right, in its sole discretion, to allocate hardware product shipments among all of the Customers of the Company. Unless otherwise specified by the Company, delivery will be made F.O.B. point of shipment to the Customer. The risk of loss passes to the Customer upon delivery to the carrier.

8. LIMITED RETURN POLICY

The following 10-day Return Policy applies only to sales of new Goods:

Goods purchased as new and which are returned to the Company within 10 days of the original sale and found to be unused, never installed, in good conditions and in the original packaging will be accepted for return with a 15% restocking fee. Shipping and handling fees and any activation fees will not be refunded. All returns must be accompanied with a Return Authorisation number issued in writing by the Company and will not be accepted otherwise.

POLICY ON NON-REFUNDABLE ITEMS:

There will be no refund for any Goods that are purchased as used equipment. All used equipment is sold as is, and all sales of used equipment are final. There will be no refund for any new or used equipment purchased as part of an exchange involving a previously returned item.

9. TERM OF AGREEMENT

Where the Agreement includes the purchase This End User License Agreement shall have a three (3) year term and can be renewed at expiry by mutual consent of the parties.
During the term of this Agreement, any party shall have the right to terminate this Agreement by giving 14 days notice to the other party.

10. EXPORT

The Customer will not export the Goods, directly or indirectly, from Australia.

11. ASSIGNMENT

The Company may assign in whole or in part its rights or duties under this Agreement without prior notice to the Customer and upon such assignment, the Company shall be released from all liability hereunder. The delegation or assignment by the Customer of any or all of its duties or rights hereunder without the Company’s prior written consent shall terminate this Agreement and the Customer shall be subject to all Cancellation Fees and penalties outlined in Clause 9 of this Agreement.

12. GENERAL

This Agreement shall be governed by the laws of the Australian Capital Territory.
The invalidity, in whole or in part, of any provision of this Agreement shall not affect the validity of the remainder of the Agreement.
The failure of either party to enforce at any time any of the provisions of this Agreement shall not constitute or be construed to be a waiver of such provisions or of the right of such party thereafter to enforce any such provisions.
The terms and conditions of this Agreement that by their sense and context are intended to survivehg the performance by the Company and/or the Customer shall survive completion of performance or termination of this Agreement.
The Customer is solely responsible for complying with any Commonwealth, State, Territory or local government legislation or regulations applicable to the purchase, installation and operation of the Goods.
The provisions of this Agreement are for the benefit of the parties hereto and not for any other person. The delegation or assignment by the Customer of any or all of its duties or rights hereunder without the Company’s prior written consent shall be void.
The Company shall not be deemed in default hereof for delay, failure in performance or loss or damage due to any force majeure event occurring beyond the Company’s reasonable control, including the interruption by third parties of the supply of goods and services required by the Company for the performance of this Agreement.
This Agreement constitutes the entire understanding between the Customer and the Company concerning the purchase of Goods and/or Service. Any other prior or concurrent written or oral representation, promise, understanding, proposal, agreement, order, warranty, course of dealing or trade usage not expressly contained or referenced herein is superseded by the terms hereof and shall not be binding on the Company unless agreed to in writing by an authorised representative of the Company.
Any modification or waiver of any provision of this Agreement must be in writing and signed by authorised representatives of both parties.
The Company does not assume and hereby expressly disclaims any obligations or liabilities in connection with the sale of products other than those expressly stated in this Agreement, and does not authorize any person (including the Company’s representatives and authorised Dealers) to assume for the Company any other obligations or liabilities.
In the event that the Customer receives the Goods under a trial arrangement as specified by the Company, the Customer shall be liable for all costs associated with repair or replacement of the Goods due to: loss, damage by tampering, misuse, accident, abuse, neglect, misapplication, alteration of any kind, defects due to repairs or modifications made by anyone other than the Company or its authorised service representative and physical damage of any nature whatsoever to the surface of the display. The Customer agrees that the Goods received under a trial arrangement shall be returned to the place of purchase in the same condition as when they were provided to the Customer.
This Agreement shall be subject to acceptance by an authorised officer of Tracking Solutions Pty Limited.