5. Content Of Web Pages And Undertakings
5.1 The Client is solely responsible for the content of the web page. The RealTrack is not responsible for proofreading any content unless specifically agreed in writing.
5.2 The RealTrack makes no representations to the Client on the functionality or content of the Web site.
5.3 The Client is solely responsible for dealings with persons accessing the data or webpage and the Client warrants that they will not refer complaints or inquiries to such data to the RealTrack.
6. Web Hosting
6.1 If the Client selects to organise their own web hosting arrangements, final exported sites will be uploaded to your preferred host company or supplied on disc as per the quoted price. Construction files of the site can supplied on request and at the RealTrack’s sole discretion may incur a fee.
6.2 The RealTrack accepts no responsibility for down times, delays, breakdowns or data loss caused by Internet Service Providers.
7. Risk
7.1 If the RealTrack retains ownership of the Goods/Services nonetheless, all risk for the Goods/Services passes to the Client on delivery.
8. Title
8.1 The RealTrack and Client agree that ownership of the Goods/Services shall not pass until:
(a) The Client has paid the RealTrack all amounts owing for the particular Goods/Services; and
(b) The Client has met all other obligations due by the Client to the RealTrack in respect of all contracts between the RealTrack and the Client.
8.2 Receipt by the RealTrack of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then the RealTrack’s ownership or rights in respect of the Goods/Services shall continue.
8.3 It is further agreed that:
(a) Where practicable the Goods/Services shall be kept separate and identifiable until the RealTrack shall have received payment and all other obligations of the Client are met; and
(b) until such time as ownership of the Goods/Services shall pass from the RealTrack to the Client the RealTrack may give notice in writing to the Client to return the Goods/Services or any of them to the RealTrack. Upon such notice the rights of the Client to obtain ownership or any other interest in the Goods/Services shall cease; and
(c) the RealTrack shall have the right of stopping the Goods/Services in transit whether or not delivery has been made; and
(d) if the Client fails to return the Goods/Services to the RealTrack then the RealTrack or the RealTrack’s agent may enter upon and into land and premises owned, occupied or used by the Client, or any premises as the invitee of the Client, where the Goods/Services are situated and take possession of the Goods/Services; and
(e) the Client is only a bailee of the Goods/Services and until such time as the RealTrack has received payment in full for the Goods/Services then the Client shall hold any proceeds from the sale or disposal of the Goods/Services on trust for the RealTrack; and
(f) the Client shall not deal with the money of the RealTrack in any way which may be adverse to the RealTrack; and
(g) the Client shall not charge the Goods/Services in any way nor grant nor otherwise give any interest in the Goods/Services while they remain the property of the RealTrack; and
(h) the RealTrack can issue proceedings to recover the Price of the Goods/Services sold notwithstanding that ownership of the Goods/Services may not have passed to the Client; and
(i) until such time that ownership in the Goods/Services passes to the Client, if the Goods/Services are converted into other products, the parties agree that the RealTrack will be the owner of the end products.
9. Client’s Disclaimer
9.1 The Client hereby disclaims any right to rescind, or cancel any contract with the RealTrack or to sue for damages or to claim restitution arising out of any misrepresentation made to the Client by the RealTrack and the Client acknowledges that the Goods/Services are bought relying solely upon the Client’s skill and judgment.
10. Defects
10.1 The Client shall inspect the Goods/Services on delivery and shall within seven (7) days of delivery (time being of the essence) notify the RealTrack of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford the RealTrack an opportunity to inspect the Goods/Services within a reasonable time following delivery if the Client believes the Goods/Services are defective in any way. If the Client shall fail to comply with these provisions the Goods/Services shall be presumed to be free from any defect or damage. For defective Goods/Services, which the RealTrack has agreed in writing that the Client is entitled to reject, the RealTrack’s liability is limited to either (at the RealTrack’s discretion) replacing the Goods/Services or repairing the Goods/Services. Where the Client is a consumer as defined in the Trade Practices Act 1974 or the Fair Trading Acts, then the Client shall be entitled to either a refund, repair or replacement of the Goods/Services.
10.2 Goods/Services will not be accepted for return other than in accordance with 10.1 above.
11. The Commonwealth Trade Practices Act 1974 (“TPA”) and Fair Trading Acts (“FTA”)
11.1 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the TPA or the FTA in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.
12. Warranty
12.1 Subject to the conditions of warranty set out in clause 12.2 the RealTrack warrants that if any defect in any workmanship of the web site provided by the RealTrack becomes apparent and is reported to the RealTrack within one (1) months of the date of delivery (time being of the essence) then the RealTrack will either (at the RealTrack’s sole discretion) replace or remedy the workmanship.
12.2 The conditions applicable to the warranty given by clause are:
(a) the warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
(i) failure on the part of the Client to properly maintain any Goods/Services; or
(ii) failure on the part of the Client to follow any instructions or guidelines provided by the RealTrack; or
(iii) any use of any Goods/Services otherwise than for any application specified on a quote or order form; or
(iv) the continued use of any Goods/Services after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or
(v) fair wear and tear, any accident or act of God.
(b) the warranty shall cease and the RealTrack shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without the RealTrack’s consent.
(c) in respect of all claims the RealTrack shall not be liable to compensate the Client for any delay in either replacing or remedying the workmanship or in properly assessing the Client’s claim.
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