Terms and Conditions
YOU SHOULD READ THESE TERMS AND CONDITIONS CAREFULLY BEFORE ORDERING OR USING CYTRACK SOFTWARE OR SUPPORT SERVICES.
- PROCEEDING WITH AN ORDER FOR GOODS (INCLUDING SOFTWARE) OR SERVICES, OR OTHERWISE USING ANY OF THE GOODS OR SERVICES AFTER RECEIVING A COPY OF THIS DOCUMENT (EITHER IN HARD COPY, ELECTRONICALLY OR BY BEING PROVIDED WITH A HYPERLINK TO THEM);
- CLICKING “I Accept” (OR SIMILAR) WHEN PRESENTED WITH THESE TERMS AND CONDITIONS DURING INSTALLATION, REGISTRATION OR LOGGING IN TO ANY SOFTWARE OR SERVICES; OR
- EXECUTING AN AGREEMENT (EITHER ELECTRONICALLY OR IN HARD COPY) THAT REFERENCES OR INCLUDES A HYPERLINK TO THESE TERMS AND CONDITIONS,
YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THESE TERMS AND CONDITIONS AND AGREE TO BE BOUND AND ABIDE BY THEM.
These Terms and Conditions apply to all goods and services provided by Cytrack Intelligence Systems Pty Ltd ABN 95 159 509 949 (‘Cytrack’, ‘we’, ‘us’) to you (‘you’, ‘customer’ or ‘Licensee’), and all offers made by Cytrack in relation to Cytrack’s goods and services, including software provided by Cytrack (‘Software’), Software as a service (SaaS) and support services relating to Software and our SaaS product offerings.
Cytrack’s failure to object to any term or condition contained in any communication, whether written or oral, from you, shall not mean those conditions/items are accepted.
- These Terms and Conditions incorporate by reference the following standard agreements (‘Standard Agreements’), as applicable:
- Cytrack’s Outright Purchase Software Agreement, if you order or use Software provided for download or on a disc or other media for installation on your hardware;
- Cytrack’s Subscription Service Software Agreement, if you order or use Software provided on a SaaS basis (‘Subscription Service Software’), which requires an ongoing subscription to use and generally requires internet access but may also require some setup on your hardware;
- Cytrack’s Support Services Terms and Conditions, if you order or procure services not provided under the above agreements (‘Support Services’).
- Cytrack’s Customer Cloud Hosted Software Agreement, if you order or use software provided by Cytrack (‘Software’) that will be hosted by the Customer on your own cloud environment (‘Cloud Environment’)
- These Terms and Conditions incorporate by reference the following flow-down agreements (‘Flow-down Terms’), as applicable:
- Cytrack’s SMS Services Terms if you order or use our SMS services;
- Cytrack’s CyCX Web Connect Services Terms if you order or use our CyCX Web Connect services;
- The above ‘Standard Agreement’ and ‘Flow-down Terms’ will prevail to the extent of any inconsistency with these Terms and Conditions. To the extent of any inconsistency between the Flow-down Terms and the Standard Agreement, the Flow-down Terms will prevail. Unless the context indicates otherwise, a reference to these “Terms and Conditions” includes the ‘Standard Agreement’ and ‘Flow-down Terms’ as may be amended from time to time.
- Any separate agreement executed by you and Cytrack (by an officer or other duly authorised representative) will prevail to the extent of any inconsistency with these Terms and Conditions or any of the above Standard Agreements.
- General terms:
- You agree to pay the fees and charges set out in the relevant order, proposal or separate agreement referred to in clause 3 that you enter into with Cytrack for the minimum committed term specified in that document, together with any additional charges (if any) set out in these Terms and Conditions.
- Where an order is paid for electronically, Cytrack will use reasonable endeavours to ensure the confidentiality of such payment details such as your name of the user, the amount of the invoice and the credit card number offered.
- Cytrack must be notified in writing of any change of address/or ownership of your company or business.
- Credit Application and Credit Terms:
- Your completion of Cytrack’s Application for Credit Terms shall be deemed an authority for Cytrack to check references as supplied by you as applicable. A credit account will only be considered after relevant information has been supplied to Cytrack. An application for credit does not necessarily mean a credit account will be granted immediately and all applications are subject to approval by Cytrack at its discretion.
- Where credit terms have been extended by Cytrack, Cytrack retains the right to vary or withdraw credit facilities at any time. The company will bear no liability for damage caused by the withdrawal of the credit facility. If accounts are overdue no further goods or services will be supplied on credit until all outstanding accounts are fully paid.
- Interest, collection costs and right to suspend:
- If you fail to pay an amount that is due to Cytrack by the due date for payment, then interest of 3% above the Reserve Bank of Australia cash rate per annum may be charged on the balance of all outstanding amounts calculated from the due date until the overdue amount (and interest) is paid in full. The interest will accrue and compound on a calendar monthly basis until the outstanding amount is paid in full.
- If you fail to pay an invoice when due, you are also liable for and must pay Cytrack for any and all costs (including all legal costs on a full indemnity basis and any collection agency costs and commissions) incurred by Cytrack in connection with or in relation to recovery of the overdue amount.
- If at any time you are in default of any payment obligations (whether to us or to our resellers) or credit terms or you otherwise fail to rectify a breach of these Terms and Conditions within 10 business days’ notice from us to do so, without limiting Cytrack’s other rights and remedies:
- Cytrack may cease any deliveries of goods and suspend the provision of any services; and
- to the extent permitted by law, Cytrack is not liable to you or any other person for damages or any other loss caused by such cessation or suspension.
- Cytrack will issue an invoice for any goods or services provided in advance of payment.
- Where any part of an invoice is in dispute the balance not in dispute must be paid in accordance with the account terms. You must immediately identify any disputed amount in writing to Cytrack. You must pay all amounts due in full without any set-off, counterclaim, deduction or withholding.
- Unless otherwise stated, any amount specified as the consideration payable for any taxable supply does not include any GST, or other goods and services or value added taxes, payable in respect of that supply.
- If a party (‘Supplier’) makes a taxable supply, then the recipient of the taxable supply (‘Recipient’) must also pay, in addition to the consideration for that supply, the amount of GST payable in respect of the taxable supply at the time the consideration for the taxable supply is payable.
- Notwithstanding the foregoing, the Recipient is not obliged to pay the amount of any GST payable until the Supplier provides it with a valid tax invoice for the taxable supply.
- If an adjustment event arises in relation to a taxable supply made by a Supplier, the amount paid or payable by the Recipient pursuant to clause 8.2 will be amended to reflect this and a payment will be made by the Recipient to the Supplier or vice versa as the case may be.
- If a third party makes a taxable supply and these Terms and Conditions require a party to these Terms and Conditions (‘payer’) to pay for, reimburse or contribute to (‘pay’) any expense or liability incurred by the other party to that third party for that taxable supply, the amount the payer must pay will be the amount of the expense or liability plus the amount of any GST payable in respect thereof but reduced by the amount of any input tax credit to which the other party is entitled in respect of the expense or liability.
- This clause 8 does not merge on completion and will continue to apply after expiration or termination of this these Terms and Conditions.
- Words or expressions used in this clause 8 that are defined in A New Tax System (Goods and Services Tax) Act 1999 have the same meaning given to them in that Act.
- You might provide Cytrack with information about your business activities via Cytrack’s website. Cytrack shall only use that information as part of its business operations and those of its related companies. Cytrack will not pass this information to unrelated companies.
- We implement reasonable security measures when collecting and using credit card information you provide, including by utilising encryption standards. If you choose not to pay this way please call, and we will assist you.
- All prices quoted verbally or written are exclusive of GST unless otherwise stated.
- Unless otherwise specified by Cytrack in writing at the time of providing a quotation:
- all quotations are valid for a period of thirty (30) days from the date issued; and
- a quotation is a mere invitation to treat and not a binding offer.
- By placing an order, you are making an offer to acquire goods or services from Cytrack. Orders for goods and services, and the price charged for same, are only binding once accepted by Cytrack in writing.
- Prices are subject to change without notice. Freight charges shall be additional.
- Any errors in an invoice or in delivery must be notified to Cytrack within 7 days of receiving the invoice or delivery. Cytrack will not grant credits for overcharges if Cytrack is not notified within 7 days unless otherwise required by law.
- To the extent permitted by law and without limiting any rights you may have under the Australian Consumer Law (see clauses 25 to 27):
- all orders for goods and services (including software licences) are non-cancellable and fees paid are non-refundable; and
- you are not able to cancel an order for goods or services accepted by us if you change your mind or if you do not use or open any goods or services you have purchased.
- When returning goods, for ease of processing we request that you telephone or email to firstname.lastname@example.org to obtain a Return Authorisation (RA) number, and return the goods within 14 working days of the RA number being issued (‘Returns Process’).
- If, notwithstanding clause 17, we agree in our absolute discretion to provide a refund to you for goods that are fault free in return for a credit with Cytrack of the applicable invoice charge, you must:
- comply with the Returns Process above;
- ensure the goods are returned at your cost with the original packing and with original accessories and in “as new” condition.
- Cytrack reserves the right to charge a re-stocking fee of up to 20% of the applicable invoice charge with regard to returns of fault-free goods.
- With regard to faulty goods, for ease of processing Cytrack requests that you:
- notify Cytrack within 14 days of purchase that the goods are faulty; and
- comply with the Returns Process above; and
- return the goods with the original packing and with original accessories.
- If on inspection by Cytrack the goods are found not to be faulty, they will be returned to you and there will be an additional inspection, postage and handling service fee of AUD $60 (or such other amount as we quote to at the time of organising the return).
- It is the responsibility of the customer to inform Cytrack of any proposed:
- change to the computer, machine, device or peripheral the Software or any SaaS products and related services are used or to be used on (‘Hardware’), including but not limited to any upgrades, replacements, repairs or change in the location of any Hardware;
- change to the operating system or environment used on the Hardware (‘Environment’), including but not limited to any upgrades or settings changes; or
- work affecting the Software, Hardware or Environment.
- If any work or changes of the kind described in clause 23 are carried out by non-Cytrack approved or trained personnel without Cytrack’s prior agreement:
- Cytrack accepts no responsibility or liability for any disruption in access to the Software or provision of services resulting from such work or changes; and
- the customer will be liable for additional charges for any work required to restore operation of the Software and/or services.
- In these Terms and Conditions:
- “Australian Consumer Law” means schedule 2 of the Competition and Consumer Act 2010 and any equivalent state or territory legislation; and
- “Consumer” has the meaning given in the Australian Consumer Law; and
- “Consumer Guarantee” means a right or guarantee under Part 3-2 (Division 1) of the Australian Consumer Law that cannot lawfully be excluded.
- The Australian Consumer Law provides Consumers with a number of Consumer Guarantees that cannot be excluded or limited. The limitations of liability set out in these Terms and Conditions are therefore subject to, and will not apply to the extent that they limit or exclude any Consumer Guarantees that may apply to you if you are a Consumer. However where the Australian Consumer Law permits us to limit the remedies for a breach of such Consumer Guarantees we do so in accordance with clause 27.
- Subject to clause 26, Cytrack’s liability to you in connection with these Terms and Conditions and the supply of goods and provision of services by Cytrack (including in respect of any breach of or failure to comply with any applicable Consumer Guarantee) is limited to any one or more of the following as Cytrack determines in its absolute discretion:
- in relation to goods:
- replacing or repairing the goods;
- supplying an equivalent item of the goods;
- paying the cost of replacing or repairing the goods; or
- paying the cost of acquiring equivalent goods; and
- in relation to services:
- supplying the services again; or
- the payment of the cost of having the services supplied again.
- in relation to goods:
- Cytrack strongly recommends You regularly backup Your data to an independent storage facility to guard against catastrophic loss of data. Cytrack does not warrant or guarantee that any data backups maintained by the Software or in connection with any services provided by Cytrack, including those managed by third-party providers, will be fail-safe or effective in any given situation.
- To the maximum extent permitted by law and without limiting your rights and our obligations under the Australian Consumer Law (which are subject to clauses 26 and 27):
- Cytrack shall not be responsible for any costs, loss or damage associated with loss or corruption of data, recreating data, substitute equipment or programs, and any claims by third parties or similar costs relating to any of the foregoing;
- Cytrack will not be liable, in any respect, for any claim, liability, cost, loss or damage resulting from or arising directly or indirectly from:
- any disruption to, or limitations of, the Licensee’s internet connection;
- any disruption to Cytrack’s internet connection beyond Cytrack’s reasonable control;
- any disruption to telecommunication networks or the internet generally;
- any changes or works of the kind described in clause 23 carried out without Cytrack’s prior agreement;
- any changes to Software made by or on behalf of the Licensee, whether or not carried out with Cytrack’s prior agreement;
- any breach by the Licensee of these Terms and Conditions or any other agreement with Cytrack; or
- any negligence on the part of the Licensee.
- any acts or omissions of any third party (including without limitation any of Cytrack’s upstream service providers and suppliers)
- by using the relevant goods or services provided by or on behalf of Cytrack, you agree to accept all risk associated with their use. You also agree to release Cytrack from and indemnify Cytrack, its related bodies corporate, their suppliers and any of their respective employees, directors and agents (those indemnified) against any Loss suffered or incurred by those indemnified arising from any allegation or claim by a third party against those indemnified:
- in connection with the Licensee’s or any of its Affiliates’ use of the goods or services (whether caused by misuse, use in breach of these Terms and Conditions, negligence or otherwise); or
- in connection with the Licensee’s or any of its Affiliates’ breach of these Terms and Conditions; or
- that the receipt, use or processing of any materials, data or information provided by or on behalf of the Licensee you connection with these Terms and Conditions or the goods or services infringes the rights of any third party (including intellectual property rights or privacy rights) or breaches any laws.
In this sub-clause: ‘Affiliates’ means the related bodies corporate of the Licensee and the employees, agents and customers of the Licensee and its related bodies corporate; and ‘Loss’ means all loss, damage and expense (including legal costs) suffered or incurred by those indemnified in relation to the relevant allegations or claims;
- Cytrack excludes:
- any term, condition or warranty that may otherwise be implied by custom, law or statute;
- any liability for loss caused by the negligence of Cytrack;
- any liability for any indirect or consequential loss or damage suffered or incurred by you or any other person; and
- any liability for any loss of revenue, loss of income, loss of business, loss of profits, loss of goodwill or credit, loss of business reputation, loss of use, loss of time, loss of interest, damage to credit rating or loss or denial of opportunity, suffered or incurred by you or any other person; and
- in respect of any liability which is not otherwise excluded under these Terms and Conditions:
- Cytrack’s liability to you for any one claim (or series of claims relating to the one event) relating to a particular good or service is limited to and shall not exceed the amount which is equal to the fees paid by you to Cytrack for the specific good or service to which the claim relates; and
- Cytrack’s maximum aggregate liability to you for all claims under or in connection with these Terms and Conditions is equal to and shall not exceed an amount that is equal to the total fees paid by you to Cytrack under these Terms and Conditions in the 6 months prior to the date of a claim,
whether such liability arises under contract, in tort (including negligence), statue or otherwise.
- Some countries and states do not allow the exclusion of implied warranties, terms or conditions, so the above exclusions may not apply to you if and to the extent not permitted under those laws.
- Some of our goods and services may be subject to additional terms (such as those in the Standard Agreements) that provide additional exclusions and limitations on liability (for example, those imposed on us by third party suppliers). Those additional exclusions and limitations on liability apply in addition to those outlined above, to the extent permitted by law.
- Cytrack will not be liable or deemed to be in default of any of its obligations under the Terms and Conditions or any other agreement with the Licensee for any default, failure or delay resulting directly or indirectly from a Force Majeure event. “Force Majeure” means any circumstance beyond the control of Cytrack whereby Cytrack is unable to perform an obligation either at all or at any time or from time to time including:
- Internet access failure caused by, amongst other things, any third party action that results in denial of service or access;
- any regulation, law, restriction, action or inaction of any governmental agency;
- industrial action or labour disturbance;
- interruption, suspension or cancellation of any telecommunications service provider;
- any act of God or act of nature, requirement or restriction of governmental authorities, inability or delay in the grant of governmental or other approvals, consents, permits, licences or authorities;
- acts of terrorism, pandemics and epidemics; and
- any act or omission of a third party (including without limitation any of Cytrack’s upstream service providers and suppliers) which affects the provision of the relevant goods or services
- Cytrack may from time to time offer advice or assistance in regards to product specification, performance and implementation. To the maximum extent permitted by law, Cytrack accepts no liability for the accuracy, currency or completeness of such information (whether provided in verbal, written or any other form), and you rely on this information at your own risk.
- Where you have entered into an agreement that references or incorporates these Terms and Conditions and Cytrack collects or holds data you have uploaded or otherwise generated in the course of utilising our goods and services including any of our SaaS services (each a “relevant agreement”):
- it is your sole responsibility to log in to the relevant service and download a copy of any of the data (including call recordings) we hold in relation to the relevant agreement (or contact us to provide you with access to such data, if self-service download is not available), prior to the termination or expiry of that relevant agreement;
- if you have not paid any amounts due and payable to Cytrack under the relevant agreement or under any other agreement you have with Cytrack, Cytrack may suspend your rights to access or download your data until all such outstanding amounts been paid to Cytrack in full;
- on termination or expiry of the relevant agreement, you agree that Cytrack is entitled to permanently delete any of your data (including any personal information and call recordings) that it holds in connection with the relevant agreement, whether or not you have arranged to download the data prior to termination or expiry; and
- you acknowledge that nothing in the relevant agreement or these Terms and Conditions requires Cytrack to delete any data which CyTrac is required by applicable law to retain.
- Cytrack reserves the right to amend, revise or replace these Terms and Conditions from time to time (each a “change notification”). The revised Terms and Conditions will be published on our website at https://www.cytrack.io/terms-conditions/. By:
- placing an order with Cytrack for new, modified or additional goods or services after receiving notice of or a copy of the amended Terms and Conditions (whether provided in hard copy, electronically or by being provided with a hyperlink to them); or
- expressly accepting the amended Terms and Conditions in writing or via the Software or services,
you acknowledge that you have read, understand and agree to be bound by the amended Terms and Conditions. Amendments, revisions and replacements will be effective sixty (60) days after posting the change notification, or on a later effective date specified in the change notification (“change effective date”). If you believe any amendments in a change notification adversely impact any existing agreements you have with Cytrack and which reference or incorporate these Terms and Conditions (a “relevant agreement”), for example the changes increase your risk or liability, or diminish your rights or our obligations, then you may notify Cytrack that you object to the proposed change in writing within 30 days after receipt of the change notification. Unless Cytrack agrees in writing to your objection (and, for example, confirms in writing that the change notification in its entirety or one or more specific changes in the change notification will not apply to you in respect of the relevant agreement), then you have the right, within 30 days after receipt of the change notification, to elect to terminate the relevant agreement on 14 days’ written notice to Cytrack. If you elect to terminate the relevant agreement pursuant to this clause, then Cytrack will provide you with a pro-rata refund of pre-paid fees that relate to the period following the effective date of termination.
- These Terms and Conditions shall be governed and construed in accordance with the laws of Australia and the State of Queensland. Furthermore it is understood that these Terms and Conditions shall be treated as though they were executed in Queensland and the parties agree that any action relating to these terms and conditions shall be instituted and prosecuted in the courts of the competent jurisdiction of the State of Queensland.
- If for any reason, a court of competent jurisdiction finds any provision or portion of these Terms and Conditions unlawful, void, or for any reason unenforceable, it shall be deleted and shall in no way affect the enforceability of any other provisions of these Terms and Conditions.
Payments and accounts
Internet and your privacy
Prices and orders
Refunds and returns
Australian consumer law
Limitation of liability
Your data on termination
Governing law and severability