GENERAL DEALINGS WITH OnTrak 4x4 & CONTRACTS OF SALE
2 DESCRIPTION OF SERVICESOnTrak 4x4 is a next-generation online marketplace Platform that utilizes the latest web, mobile, and social networking technologies to allow you to find and order from your favourite automotive parts, services, and much more. Although you are able to place orders through the Services: OnTrak 4x4 itself does not sell the products contained in your order in all cases, is not a party to any such transaction, and has no control over the quality or safety of the products. Your order, including an order placed through the ONTRAK 4X4 marketplace, is between you and the supplier of products and services which you order. In addition, suppliers may state recommendations, advisory and fitment standards through the Services. We do not investigate or verify the product instructions, composition, handling methods, manufacturing standards, or any descriptions, statements, or representations made by the suppliers. Therefore, if you or anyone else who will be buying and using any item from an order has any issues, you are strongly advised to contact the supplier/manufacturer directly to address your specific needs by using the Services. You agree that you understand that OnTrak 4x4 is not responsible for any statements or omissions concerning the products contained in your order. Also, please be advised that your use of payment methods such as: PayPal, Stripe, Bank transfer Methods with your respective banking entities, Android Pay or Apple Pay is subject to the terms and conditions, including the privacy policies, of Google and Apple, respectively.
2.1 WHO ACCESS IS AVAILABLE TOWe provide Visitors and Registered Users with access to the Services as described in this Agreement.
2.1.1 OnTrak 4x4 open information website visitors: No login is required for Visitors to the open information websites. Visitors to can (a) view all publicly-accessible content, (b) e-mail us, and (c) chat us.
2.1.2 Registered Users. Login is required for all Registered User services. Registered Users can do all the things Visitors cannot do, and also (a) place orders, (b) search for products and services based on location and type, (c) research a particular product or service, (d) sign up for alerts and other notifications, and (e) blog about products and services, including posting to your Facebook and social media walls. OnTrak 4x4 is under no obligation to accept any individual as a Registered User, and may accept or reject any registration in its sole and complete discretion.
3 COMMUNITY GUIDELINESOnTrak 4x4’s community, like any community, functions best when its people follow a few simple rules. By accessing and/or using the Services, you hereby agree to comply with these community rules and that:
3.1 RULES FOR COMMUNITY EXCHANGES
3.1.1 You will not use the Services for any unlawful purpose, including any fraudulent activity, or to engage in any commercial activities, including, without limitation, raising money; advertising or promoting a product, service, or company; or engaging in any pyramid or other multi-tiered marketing scheme;
3.1.2 You will not access or use the Services to collect any market research for a competing businesses;
3.1.3 You will not upload, post, e-mail, transmit, or otherwise make available any content that:
188.8.131.52 infringes any copyright, trademark, or other proprietary rights of any person or entity; or
184.108.40.206 is threatening, tortious, defamatory, libelous, indecent, obscene, pornographic, invasive of another’s privacy, or promotes violence; or
220.127.116.11 discloses any personal information about another person, including that person’s name, e-mail address, postal address, phone number, credit card information, or any similar information;
3.1.4 You will not impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity;
3.1.5 You will not use automated means, including spiders, robots, crawlers, data mining tools, or the like to download or scrape data from the Platform, directly or indirectly, except for Internet search engines (e.g., Google) and non-commercial public archives (e.g., archive.org) that comply with our robots.txt file;
3.1.6 You will not create multiple accounts for yourself for any reason, including, without limitation, in order to obtain the same promotion multiple times; and
3.1.7 You will not interfere with or attempt to interrupt the proper operation of the Services through the use of any virus, device, information collection or transmission mechanism, software or routine, or access or attempt to gain access to any data, files, or passwords related to the Services through hacking, password or data mining, or any other means. We reserve the right, in our sole and absolute discretion, to deny you (or any device or IP address) access to the Services, or any portion of the Services, without notice.
4 RESTRICTIONSThe Services are available for individuals aged 15 years or older. If you are 15 or older, but under the age of 18, you should review this Agreement with your parent or guardian to make sure that you and your parent or guardian understand it. You may not use the Services to purchase any product or service unless you and the recipient meet the minimum age requirements under applicable state or provincial laws and present a valid photo identification verifying your age at the time you pick up or receive delivery of your order if so required at such time.
5 PAYMENT REFUNDS, EXCHANGES & CREDITSYou pay for orders via the Services. You agree that OnTrak 4x4 may immediately authorize your credit card (or other approved facility) for payment for any order made under your Password (as defined below). As set forth more fully in this agreement, you must keep your Password strictly confidential. You are responsible for all activities and charges that occur under your Password. Your liability for such charges shall continue after termination of this Agreement. If you have a question about a transaction on your credit card statement, please use the “Contact Us” section of the information Website, or “Support Centre” of the Framework Web Application to contact customer service. All refunds are subject to the refund policies of the manufacturers/supplier of products and services from which you order. If you contact us seeking a refund, we cannot – and will not – process any refund until we receive the approval from the applicable manufacturer/supplier. We will use reasonable efforts to request and obtain refunds when appropriate for your best, fairest and reasonable interests. In certain circumstances at our sole discretion under what is fair and reasonable at the time we may offer an exchange. Such exchange may include added costs and deductions for handling and re-stocking. The fees for re-stocking can be between 20% - 50% depending on the nature of the products. In certain circumstances at our sole discretion under what is fair and reasonable at the time we may offer an account credit. This is monies credited to your ONTRAK 4X4 Marketplace account, which you can apply for future purchases for other products and services. Such account credit resultant amount, may include added costs and deductions for handling and re-stocking. The fees for re-stocking can be between 20% - 50% depending on the nature of the products. All products that require assembly must be returned in their pre packed condition with all packaging intact, and in a state that was present when such products were delivered. 6 DISPUTES, RESOLUTIONS AND ASSISTANCE WITH SUPPLIERS AND MANUFACTURERS. We may offer you assistance with any disputes, warranty claims and resolutions sought with any disputes with suppliers of products and services on the ONTRAK 4X4 Marketplace. At such instance, where we are called to mediate, we are no able to fully guarantee outcomes from such processes, however we will do the best we can to make sure all matters are adhered too and handled in the most fair and amicable manner. We do not take any responsibility for providing a result in light of a dispute or claim with a manufacturer/suppliers by you, however we will do our utmost to provide the best suggestions to respective parties, in order to facilitate the best and most satisfactory outcomes for all sides. In such instances we are indemnified of any legal actions, and also do not act in any legal capacity for any side.
7 DELIVERIESSuppliers, products and services available through the Services do not deliver to every location. If we currently do not deliver to your area, but you would like us to, please let us know. We are expanding the reach of our Services, so we recommend that you create an account. In instances, we use third-party delivery companies to deliver your orders. If you are not at the delivery location when your order arrives, the delivery person will leave the package for you at your door, or, if applicable, with the doorman or at the delivery center nominated by you and based on any instructions entered by you on the order in the deliveries section. You will be charged the applicable fee for delivery on the order. Anyone at the delivery address who receives the delivery is conclusively presumed to be authorized to receive the delivery. In the case of inclement weather, your order will be delivered as soon as reasonably possible when the conditions permit. OnTrak 4x4, NOT BEING THE DELIVERY SERVICE OR ITS AGENT, MAKES NO EXPRESS OR IMPLIED WARRANTY OF ANY KIND WHATSOEVER WITH RESPECT TO THE DELIVERY SERVICES AND DISCLAIMS ANY SUCH WARRANTIES THAT MIGHT OTHERWISE EXIST.
8 SIGN-IN NAME, PASSWORD, UNIQUE IDENTIFIERSDuring the registration process for Registered Users, we will create for you [Admin account creation] or ask you to create an account [public form account creation], which includes a unique sign-in name (“Sign-In Name”), password (“Password”), and perhaps certain additional information that will assist in authenticating your identity when you log-in in the future (“Unique Identifiers”). When creating your account, or setting up your account after an admin creation of an account for you; you must provide true, accurate, current, and complete information. Each Sign-In Name and corresponding Password can be used by only one Registered User. You are responsible for the confidentiality and use of your Sign-In Name, Password, and Unique Identifiers. You will promptly inform us of any need to deactivate a Password or Sign-In Name, or change any Unique Identifier. We reserve the right to delete or change your Password, Sign-In Name, or Unique Identifier at any time and for any reason.
9 INTELLECTUAL PROPERTYThe Services contain material, such as software, text, graphics, images, sound recordings, audio-visual works, and other material provided by or on behalf of OnTrak 4x4 (collectively referred to as the “Content”). The Content may be owned by us or by third parties. The Content is protected under both Australian and foreign laws. Unauthorized use of the Content may violate copyright, trademark, and other laws. You have no rights in or to the Content, and you will not use the Content except as permitted under this Agreement. No other use is permitted without prior written consent from us. You must retain all copyright and other proprietary notices contained in the original Content on any copy you make of the Content. You may not sell, transfer, assign, license, sublicense, or modify the Content or reproduce, display, publicly perform, make a derivative version of, distribute, or otherwise use the Content in any way for any public or commercial purpose. The use or posting of the Content on any other website or in a networked computer environment for any purpose is expressly prohibited. If you violate any part of this Agreement, your permission to access and/or use the Content and the Services automatically terminates and you must immediately destroy any copies you have made of the Content. The trademarks, service marks, and logos of OnTrak 4x4 (“ OnTrak 4x4 Trademarks”) used and displayed on the Services are registered and unregistered trademarks or service marks of OnTrak 4x4, Inc. Other company, product, and service names located on the Services may be trademarks or service marks owned by others (the “Third-Party Trademarks”, and, collectively with OnTrak 4x4 Trademarks, the “Trademarks”). Nothing on the Services should be construed as granting, by implication, estoppel, or otherwise, any license or right to use the Trademarks, without our prior written permission specific for each such use. Use of the Trademarks as part of a link to or from any site is prohibited unless establishment of such a link is approved in advance by us in writing. All goodwill generated from the use of OnTrak 4x4 Trademarks inures to our benefit. Elements of the Services are protected by trade dress, trademark, unfair competition, and other state and federal laws and may not be copied or imitated in whole or in part, by any means, including but not limited to the use of framing or mirrors. None of the Content may be retransmitted without our express, written consent for each and every instance.
10 COMMUNICATIONS TO OnTrak 4x4Although we encourage you to e-mail us through conventional email, or through the “Support Centre” [still referred to in this agreement as an email activity], we do not want you to, and you should not, e-mail us any content that contains confidential information. With respect to all e-mails you send to us, including but not limited to, feedback, questions, comments, suggestions, and the like, we shall be free to use any ideas, concepts, know-how, or techniques contained in your communications for any purpose whatsoever, including but not limited to, the development, production, and marketing of products and services that incorporate such information. You retain all copyrights and other intellectual property rights in and to anything you post to the Services. You do, however, grant us an irrevocable, non-exclusive, worldwide, perpetual, royalty-free license to use, modify, copy, distribute, publish, perform, sublicense, and create derivative works from all submissions you provide to us in any media now known or hereafter devised and for any purpose. Any person or party that uses such content created by you that violates any copyright is not subject to our operations, and in no way are we to be held legally liable in any way.
11 OnTrak 4x4 DOLLARSIf you are special type of user, you may be eligible to earn “ OnTrak 4x4 Bucks” in connection with our referral programs and/or various promotions that we may run from time to time, as described on the Website and elsewhere. OnTrak 4x4 Bucks, once accrued, are automatically applied towards your future orders using our Services for products and services on ONTRAK 4X4 Marketplace. OnTrak 4x4 Bucks may never be redeemed or exchanged for real money or used outside the scope of the Services. OnTrak 4x4 has the right to regulate, modify, and/or eliminate OnTrak 4x4 Bucks in its sole and absolute discretion at any time and without notice to you. We shall have no liability in connection with the exercise of this right.
12 NO WARRANTIES/LIMITATION OF LIABILITYALTHOUGH WE TAKE OUR CUSTOMERS’ SATISFACTION VERY SERIOUSLY, IF YOU HAVE ANY PROBLEMS WITH YOUR PRODUCT OR SERVICES ORDERED, INCLUDING ANY DELIVERY SERVICES, PLEASE CONTACT THE MANUFACTURER/SUPPLIER DIRECTLY. YOUR PURCHASE IS BETWEEN YOU AND THE MANUFACTURER/SUPPLIER FROM WHOSE PRODUCT OR SERVICE YOU ORDERED, AND OnTrak 4x4 IS NOT AN ACTUAL PARTY TO ANY SUCH SUPPLY ARRANGEMENT IN RELATION TO PRODUCTS AND SERVICES. THE CONTENT AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND. WE DISCLAIM ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE WARRANTY OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTIES’ RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. IN CONNECTION WITH ANY WARRANTY, CONTRACT, OR COMMON LAW TORT CLAIMS: (I) WE SHALL NOT BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION RESULTING FROM THE USE OR INABILITY TO ACCESS AND USE THE PRODUCTS, SERVICES OR THE CONTENT, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (II) ANY DIRECT DAMAGES THAT YOU MAY SUFFER AS A RESULT OF YOUR USE OF THE SERVICES OR THE CONTENT SHALL BE LIMITED TO THE MONIES YOU HAVE PAID US IN CONNECTION WITH YOUR USE OF THE SERVICES DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE CLAIM. THE SERVICES AND/OR THE CONTENT MAY CONTAIN TECHNICAL INACCURACIES, TYPOGRAPHICAL ERRORS, OR OMISSIONS, INCLUDING WITH RESPECT TO USAGE INFORMATION AND/OR MANUFACTURING/SERVICE STANDARDS. WE ARE NOT RESPONSIBLE FOR ANY SUCH TYPOGRAPHICAL, TECHNICAL, PRICING, OR OTHER ERRORS LISTED ON OR OMITTED FROM THE PRODCUTS/SERVICES AND/OR THE CONTENT. THE PRODUCT/SERVICES AND THE CONTENT CONTAIN INFORMATION ON OUR ACCESSIBLE PRODUCTS/SERVICES, NOT ALL OF WHICH ARE AVAILABLE IN EVERY LOCATION. A REFERENCE TO A PRODUCT OR SERVICES OR IN THE CONTENT DOES NOT IMPLY THAT SUCH PRODUCT/SERVICE IS OR WILL BE AVAILABLE IN YOUR LOCATION. WE RESERVE THE RIGHT TO MAKE CHANGES, CORRECTIONS, AND/OR IMPROVEMENTS TO THE SERVICES AND THE CONTENT AT ANY TIME WITHOUT NOTICE. WE RESERVE THE RIGHT TO CANCEL OR MODIFY AN ORDER WHERE IT APPEARS THAT A CUSTOMER HAS ENGAGED IN FRAUDULENT OR INAPPROPRIATE ACTIVITY OR UNDER OTHER CIRCUMSTANCES WHERE IT APPEARS THAT THE ORDER CONTAINS OR RESULTED FROM A MISTAKE OR ERROR. IN ADDITION, WE RESERVE THE RIGHT TO REPORT ANY FRAUDULENT OR INAPPROPRIATE CONDUCT TO APPROPRIATE AUTHORITIES AT OUR DISCRETION.
13 EXTERNAL SITESThe Services may contain links to third-party websites (“External Sites”). These links are provided solely as a convenience to you and not as an endorsement by us of the content on such External Sites. The content of such External Sites is developed and provided by others. You should contact the site administrator or webmaster for those External Sites if you have any concerns regarding such links or any content located on such External Sites. We are not responsible for the content of any linked External Sites and do not make any representations regarding the content or accuracy of materials on such External Sites. You should take precautions when downloading files from all websites to protect your computer from viruses and other destructive programs. If you decide to access linked External Sites, you do so at your own risk.
14 INDEMNIFICATIONYou agree to defend, indemnify, and hold us and our officers, directors, employees, successors, licensees, and assigns harmless from and against any claims, actions, or demands, including, without limitation, reasonable legal and accounting fees, arising or resulting from your breach of this Agreement or your misuse of the Content or the Services. We shall provide notice to you of any such claim, suit, or proceeding and shall assist you, at your expense, in defending any such claim, suit, or proceeding. We reserve the right to assume the exclusive defence and control of any matter that is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting our defence of such matter.
15 COMPLIANCE WITH APPLICABLE LAWSThe Services are based in Australian. We make no claims concerning whether the Content may be downloaded, viewed, or be appropriate for use outside of Australia. If you access the Services or the Content from outside of Australia, you do so at your own risk. Whether inside or outside of Australia, you are solely responsible for ensuring compliance with the laws of your specific jurisdiction.
16 TERMINATION OF THE AGREEMENTWe reserve the right, in our sole discretion, to restrict, suspend, or terminate this Agreement and your and any device’s access to all or any part of the Services, at any time and for any reason without prior notice or liability. We reserve the right to change, suspend, or discontinue all or any part of the Services at any time without prior notice or liability.
17 DIGITAL MILLENNIUM COPYRIGHT ACTOnTrak 4x4 respects the intellectual property rights of others and attempts to comply with all relevant laws. We will review all claims of copyright infringement received and remove any Content or user submissions deemed to have been posted or distributed in violation of any such laws. Our designated agent under the Digital Millennium Copyright Act (the “Act”) for the receipt of any Notification of Claimed Infringement which may be given under that Act is as follows: If you believe that your work has been copied on the Services in a way that constitutes copyright infringement, please provide our agent with notice in accordance with the requirements of the Act, including (i) a description of the copyrighted work that has been infringed and the specific location on the Services where such work is located; (ii) a description of the location of the original or an authorized copy of the copyrighted work; (iii) your address, telephone number, and e-mail address; (iv) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; (v) a statement by you, made under penalty of perjury, that the information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf; and (vi) an electronic or physical signature of the owner of the copyright or the person authorized to act on behalf of the owner of the copyright interest.
18 DOWNLOADING THE APPS FROM THE APP STOREThe following terms apply when you download the OnTrak 4x4 App and/or any of the OnTrak 4x4 created Apps (collectively, the “Apps”) from Apple’s App Store, or Google Play Store. These terms are in addition to all other terms contained in the Agreement.
18.1 DOWNLOADS FROM APPLE APP STORE OR GOOGLE PLAY
18.1.1 You acknowledge and agree that (i) the Agreement is concluded between you and OnTrak 4x4 only, and not Apple/Google; and (ii) OnTrak 4x4, not Apple/Google, is solely responsible for the Apps and content thereof. Your use of the Apps must comply with the App Store Terms of Service.
18.1.2 You acknowledge that Apple/Google has no obligation whatsoever to furnish any maintenance and support services with respect to the Apps.
18.1.3 In the event of any failure of any of the Apps to conform to any applicable warranty, you may notify Apple/Google, and Apple/Google will refund the purchase price, if any, for the applicable App to you and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App. As between OnTrak 4x4 and Apple/Google, any other claims, losses, liabilities, damages, costs, or expenses attributable to any failure to conform to any warranty will be the sole responsibility of OnTrak 4x4.
18.1.4 You acknowledge that, in the event of any third-party claim that the Apps or your possession and use of an App infringes that third party’s intellectual property rights, as between OnTrak 4x4 and Apple, OnTrak 4x4, not Apple, will be solely responsible for the investigation, defence, settlement, and discharge of any such intellectual property infringement claim to the extent required by the Agreement.
18.1.5 You acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Agreement as related to your license of the Apps, and that, upon your acceptance of the terms and conditions of the Agreement, Apple, will have the right (and will be deemed to have accepted the right) to enforce the Agreement as related to your license of the Apps against you as a third-party beneficiary thereof.
19 BINDING ARBITRATIONIn the event of a dispute arising under or relating to this Agreement or the Services or any other products or services provided by us (each, a “Dispute”), either party may elect to finally and exclusively resolve the dispute by binding arbitration governed by the respective Federal Arbitration Acts of Australia (“FAA”). Any election to arbitrate, at any time, shall be final and binding on the other party. IF EITHER PARTY CHOOSES ARBITRATION, NEITHER PARTY SHALL HAVE THE RIGHT TO LITIGATE SUCH CLAIM IN COURT OR TO HAVE A JURY TRIAL. DISCOVERY AND APPEAL RIGHTS MAY ALSO BE LIMITED IN ARBITRATION. All disputes will be resolved before a neutral arbitrator, whose decision will be final except for a limited right of appeal under the FAA guidelines. Any court in Australia may enforce the arbitrator’s award. The arbitration shall be administered by the Arbitration and Mediation Services of the respective state of Australia in which it is filed to any set forth Arbitration Rules and Procedures, if applicable, or otherwise pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules. Such disputes will be resolved by the arbitrator as determined under Arbitration Rules. The arbitration may be conducted in person, through the submission of documents, by phone or online. If conducted in person, the arbitration shall take place in the state of Victoria Australia. The parties may litigate in court to compel arbitration, to stay proceeding pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator. In addition, we may bring an action for injunctive relief in any court of competent jurisdiction.
20 CLASS ACTION WAIVERYou agree that any arbitration or proceeding shall be limited to the Dispute between us and you individually. To the full extent permitted by law, (i) no arbitration or proceeding shall be joined with any other; (ii) there is no right or authority for any Dispute to be arbitrated or resolved on a class action-basis or to utilize class action procedures; and (iii) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons. YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST US ONLY IN YOUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
PART II: OnTrak 4x4 ONLINE ACCOUNT USERS
Subject to the conditions set forth herein, OnTrak 4x4 may, in its sole discretion, amend this Agreement and the other Terms of Service at any time by posting a revised version on the Site and will provide reasonable advance notice of any amendment that includes a Substantial Change. If the Substantial Change includes an increase to any usage fees charged by OnTrak 4x4, OnTrak 4x4 will provide at least 30 days’ advance notice of the change, but may not provide any advance notice for changes resulting in a reduction in Fees or any temporary or promotional Fee change. Any revisions to the Terms of Service will take effect on the noted effective date or when posted if there is no noted effective date (each, as applicable, the “Effective Date”). Your continued use of the Site or the Site Services after the Effective Date of a revised version of this Agreement or of any other Terms of Service constitutes your acceptance of and agreement to be bound by the Terms of Service as revised. In the event of a conflict between this Agreement and the other Terms of Service, this Agreement will control unless the other Agreement explicitly states that it controls. Capitalized terms are defined throughout this Agreement and in Section 23 (Definitions).
YOU UNDERSTAND THAT BY USING THE SITE OR SITE SERVICES AFTER THE EFFECTIVE SIGN ON DATE, YOU AGREE TO BE BOUND BY THE TERMS OF SERVICE, INCLUDING THE MANDATORY BINDING ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION IN SECTION 21.4 OF THIS AGREEMENT. IF YOU DO NOT ACCEPT THE TERMS OF SERVICE IN ITS ENTIRETY, YOU MUST NOT ACCESS OR USE THE SITE OR THE SITE SERVICES AFTER THE EFFECTIVE DATE. IF YOU AGREE TO THE TERMS OF SERVICE ON BEHALF OF AN ENTITY, OR IN CONNECTION WITH PROVIDING OR RECEIVING SERVICES ON BEHALF OF AN ENTITY OR OWNER/OPERATOR ACCOUNT SUB USER, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY OR OWNER/OPERATOR ACCOUNT SUB USER TO THE TERMS OF SERVICE. IN THAT EVENT, “YOU” AND “YOUR” WILL REFER AND APPLY TO THAT ENTITY OR OWNER/OPERATOR ACCOUNT SUB USER.
22 DIGITAL SIGNATUREIn connection with the Terms of Service, you may be entitled to receive certain records from OnTrak 4x4 or our Affiliates, such as contracts, notices, and communications, in writing. To facilitate your use of the Site and the Site Services, you give us permission to provide these records to you electronically instead of in paper form.
23 CONSENT TO USE ELECTRONIC RECORDSCookies do lots of different tasks, like helping us understand how the Site is being used, letting you navigate between pages efficiently, remembering your preferences, and generally improving your browsing experience. Cookies can also help ensure marketing you see online is more relevant to you and your interests.
23.1 YOUR CONSENT AND YOUR RIGHT TO WITHDRAW CONSENT
23.1.1 By registering for an Account, or accessing an account to which the administrator registered you, and you use, you consent to electronically receive and access, via email or the Site, all records and notices for the services provided to you under the Terms of Service that we or our Affiliates would otherwise be required to provide to you in paper form. However, we reserve the right, in our sole discretion, to communicate with you via email and other third-party email mail services using the address under which your account is registered. Your consent to receive records and notices electronically will remain in effect until you withdraw it. You may withdraw your consent to receive further records and notices electronically at any time by contacting Customer Support [support@Xedosoft.com]. If you withdraw your consent to receive such records and notices electronically, we will revoke your access to the Site and the Site Services, and you will no longer be permitted to use the Site or the Site Services. Any withdrawal of your consent to receive records and notices electronically will be effective only after we have a reasonable period of time to process your request for withdrawal. Please note that your withdrawal of consent to receive records and notices electronically will not apply to records and notices electronically provided by us to you before the withdrawal of your consent becomes effective.
23.2 KEEPING YOUR ADDRESS AND EMAIL ADDRESS CURRENT WITH US
23.2.1 In order to ensure that we are able to provide records and notices to you electronically, you agree to notify us immediately of any change in your email address by updating your Account information on the Site or by contacting Customer Support. In addition, so that we may communicate with you via the email Services and other third-party email mail services, you agree to notify us immediately of any change in your email address.
23.3 HARDWARE AND SOFTWARE YOU WILL NEED TO USE THE SITE SERVICES FOR YOUR BUSINESS
23.3.1 To access and retain the records and notices we provide to you electronically, you will need: (a) a valid email address; (b) a computer system that operates on a platform like Windows or Mac, or a mobile device; (c) a connection to the Internet; (d) Current Versions of the software, browsers, plug-ins, or other computer applications and programs identified on the Site (Users utilizing other browsers may experience compatibility difficulties); (e) a Current Version of a program that accurately reads and displays PDF files, such as the Current Version of Adobe Acrobat Reader; (f) a computer or device and an operating system capable of supporting all of the above; and (g) a printer to print out and retain records and notices in paper form or electronic storage to retain records and notices in an electronic form. By “Current Version”, we mean a version of the software that is currently being supported by its publisher. We may change these requirements from time to time and will update this Agreement accordingly. You should retain a copy of all of the records and notices we send to you electronically.
23.3.2 By accepting and agreeing to this Agreement and the other Terms of Service electronically, you represent that (1) you have read and understand the above consent to receive records and notices electronically; (2) you satisfy the minimum hardware and software requirements specified above; and (3) your consent will remain in effect until you withdraw your consent as specified above.
24 OnTrak 4x4 ACCOUNTS
24.1 3.1 ACCOUNT ELIGIBILITY
24.1.1 To use the Site and certain Site Services, you must register for an Account, or accept the registration of your account by a system administrator. Once you login, from the latter scenario outlined, this constitutes an acceptance of all the terms and conditions of the User Agreement in relation to the www.Ontrak4x4.net Site. OnTrak 4x4 offers the Site and Site Services for your business purposes only, and not for personal, household, or consumer use.
24.1.2 To use the Site and Site Services, you must have, and hereby represent that you have, an independent business (whether it be as a self-employed individual/sole proprietor or as a corporation or other entity) and further represent that you intend to use the Site and Site Services for your business purposes only, unless you use the Site and Site Services solely as an employee and Owner/Operator Account Sub User Member of a registered Owner/Operator Account Sub User Account. You understand that you must comply with any licensing or registration requirements with respect to your business, and you represent that you comply with all such requirements.
24.1.3 To register for an Account, you must be, and hereby represent that you are, a legal entity or an individual 18 years or older who can form legally binding contracts. By registering for an Account, by using the Site or Site Services after the Effective Date if you had an account on the Effective Date, or by clicking to accept the Terms of Service when prompted on the Site, you agree to: (a) abide by this Agreement and the other Terms of Service; (b) be financially responsible for your use of the Site and the purchase or delivery of Business Services; and (c) perform your obligations as specified by any Service Contract that you enter into, unless such obligations are prohibited by applicable law or the Terms of Service. OnTrak 4x4 reserves the right, in our sole discretion, to refuse, suspend, or revoke your access to the Site and Site Services upon discovery that any information you provided on any form or posted on the Site is not true, accurate, or complete, or such information or other conduct otherwise violates the Terms of Service, or for any other reason or no reason in OnTrak 4x4’s sole discretion.
24.1.4 You represent that you are not: (1) a citizen or resident of a geographic area in which access to or use of the Site or Site Services is prohibited by applicable law, decree, regulation, treaty, or administrative act; (2) a citizen or resident of, or located in, a geographic area that is subject to Australian, or other sovereign country sanctions or embargoes; or (3) an individual, or an individual employed by or associated with an entity, identified on the Australian Governments Denied Persons or Entity List, the Australian Governments Specially Designated Nationals or Blocked Persons Lists, or the Australian Governments Debarred Parties List or otherwise ineligible to receive items subject to Australian export control laws and regulations or other economic sanction rules of any sovereign nation. You agree that if your country of residence or other circumstances change such that the above representations are no longer accurate, that you will immediately cease using the Site and Site Services.
24.2 ACCOUNT REGISTRATION, PROFILE
24.2.1 By registering for an account, or being registered for usage of an account by a system administrator, you must complete a User profile (“Profile”), which you consent to be shown to other Users and, unless you change your privacy settings, the public. If you are a contractor, unless you use the Site solely as an employee and Owner/Operator Account Sub User Member of a registered Owner/Operator Account Sub User Account, you represent and warrant that you use your Profile to market your business to others for the purpose of entering into independent contractor relationships with Wine Dine 99, or other Users. You agree to provide true, accurate, and complete information on your Profile and all registration and other forms you access on the Site or provide to us and to update your information to maintain its truthfulness, accuracy, and completeness. You agree not to provide and to correct any information about your location, your business, your skills, or the services your business provides that is or becomes false or misleading. You agree not to register for more than one Buyer Account, one Team Member/Contractor Account, and one Consultant/User Account, without express written permission from us (except that you may register as an Owner/Operator Account Sub User Member of other Accounts as provided below I such instances should such instances arise). You agree not to ask or allow another person to create an Account on your behalf, for your use, or for your benefit
24.3 IDENTITY VERIFICATION
24.3.1 When you register for an Account and from time to time thereafter, your Account will be subject to verification, including, but not limited to, validation against third-party databases or the verification of one or more official government or legal documents that confirm your identity and your ability to represent your business on the OnTrak 4x4 web platform, if it is a separate legal entity. You authorize OnTrak 4x4, directly or through third parties, to make any inquiries necessary to validate your identity and confirm your ownership of your email address, identity or financial accounts, subject to applicable law. When requested, you must provide us with information about you and your business.
24.4 USERNAMES AND PASSWORDS
24.4.1 When you register for an Account, you will be asked to choose a username and password for the Account, the username will be your email ID or your mobile phone number, based on the country you are registered in. If you have had an account initiated by a system administrator, they will enter your email ID and mobile phone number, but the system will generate a unique password to which you will be notified in your welcome email. Each User and any Owner/Operator Account User Account Administrator will also be asked to choose the initial username [which is the email ID] and phone number for any Owner/Operator Account Sub User Account that is added to the Account, if they have registered the account, or through the initiation of he account registration by a system administrator resulting in a welcome notice with a unique password assigned by the system (and can change the password for the Owner/Operator Account Sub User Account at any time).
24.4.2 You are entirely responsible for safeguarding and maintaining the confidentiality of your Account or Owner/Operator Account Sub User Account username and password. You authorize OnTrak 4x4 to assume that any person using the Site with your username and password, either is you or is authorized to act for you. You agree to notify us immediately if you suspect or become aware of any unauthorized use of your Account or Owner/Operator Account Sub User Account or any unauthorized access to your password or the password of any User of your Account (or any related Owner/Operator Account Sub User Account). You further agree not to use any username, or password of another User of the Site that you are not authorized to use, and not to allow others who are not authorized to do so to use your Account or Owner/Operator Account Sub User Account at any time.
24.5 MARKETPLACE FEEDBACK
24.5.1 You acknowledge and agree that feedback benefits the marketplace, all Users, and the efficiency of the Site and you specifically request that OnTrak 4x4 post composite or compiled feedback about Users, including yourself, on User Profiles and elsewhere on the Site. You acknowledge and agree that feedback results for you, including your Rating, if any, will consist of comments, ratings, reviews, indicators of User satisfaction, and other feedback left by other Users.
24.5.2 You further acknowledge and agree that OnTrak 4x4 will make feedback results available to other marketplace Users, including composite or compiled feedback. OnTrak 4x4 provides this feedback system as a means through which Users can share their opinions publicly and OnTrak 4x4 does not monitor or censor these opinions.
24.5.3 You agree not to use the ratings and reviews features, to make any employment, credit, credit valuation, underwriting, or other similar decision about any other User.
24.5.4 OnTrak 4x4 does not investigate any remarks posted by Users for accuracy or reliability but may do so if a User requests that OnTrak 4x4 do so. You may be held legally responsible for damages suffered by other Users or third parties as a result of your remarks if such remarks are legally actionable or defamatory.
24.5.5 OnTrak 4x4 is not legally responsible for any feedback or comments posted or made available on the Site by any Users or third parties, even if that information is defamatory or otherwise legally actionable. In order to protect the integrity of the feedback system and protect Users from abuse, OnTrak 4x4 reserves the right (but is under no obligation) to remove posted feedback or information that, in OnTrak 4x4’s sole judgment, violates the Terms of Service or negatively affects our marketplace.
24.5.6 You acknowledge and agree that you will notify OnTrak 4x4 of any error or inaccurate statement in your feedback results, including the ratings and reviews, and that if you do not do so, OnTrak 4x4 may rely on the accuracy of such information. This also applies to any social media platforms on which comments or marketplace feedback is posted on social media site sections managed and regulated by OnTrak 4x4.
25 PURPOSE OF THE SITE AND SITE SERVICESThe Site is a marketplace where Buyers, Marketplace Consultant/Users, Project administrators and Contractor/Supplier of Services/Products can identify each other and communicate in relation to the availability, supply and sale of automotive products and services along with relevant matters online. Subject to the Terms of Service, OnTrak 4x4 provides the Site Services to Users, including hosting and maintaining the Site, enabling the formation of calculations, representation of data, product/service availability, communication, and coordinating work related to product/services, their costing’s analysis and calculations. If Users agree on trade with providers of products and services from manufacturers/suppliers of such, to carry out supply or works a Service Contract is formed directly between such Users and the manufacturers/suppliers of such products and services, subject to the provisions set forth in Section 18.104.22.168 (Contractual Relationship Between Customer user and Manufacturer/Supplier). When a User enters a Service Contract, the User uses the Site to engage, communicate, and manage project relevant details with the supplier of such services and products.
25.1 4.1 CONTRACT SERVICE/PAYMENT THROUGH ACCOUNTS
25.1.1 OnTrak 4x4 Contracts, provides payments/services to manufacturers/suppliers and buyer Users to deliver, hold, or receive services/supply for orders, and to pay service, membership and payment processing and administration fees for orders made by a buyer through the platforms operated by OnTrak 4x4 (“Payment for Product/Services”). OnTrak 4x4 Payments for Products/Services are only for trade of automotive products and services.
25.1.2 You hereby authorize and instruct OnTrak 4x4 to act as a service/payment agent in connection with the products/services you require and the payment, holding, and receipt of funds for each Engagement and other specified purposes (the “Transactions”) in accordance with the Terms of Service and the applicable Transaction Instructions.
26 CONTRACTUAL RELATIONSHIP BETWEEN BUYER AND CONTRACTOR/SUPPLIER OF SERVICES/PRODUCTS
26.1 SERVICE CONTRACTS
26.1.1 You represent that you are not: (1) a citizen or resident of a geographic area in which access to or use of the Site or Site Services is prohibited by applicable law, decree, regulation, treaty, or administrative act; (2) a citizen or resident of, or located in, a geographic area that is subject to Australian, or other sovereign country sanctions or embargoes; or (3) an individual, or an individual employed by or associated with an entity, identified on the Australian Governments Denied Persons or Entity List, the Australian Governments Specially Designated Nationals or Blocked Persons Lists, or the Australian Governments Debarred Parties List or otherwise ineligible to receive items subject to Australian export control laws and regulations or other economic sanction rules of any sovereign nation. You agree that if your country of residence or other circumstances change such that the above representations are no longer accurate, that you will immediately cease using the Site and Site Services.
26.1.2 For services that entail the supply of services entailing Hourly Engagements, Bonus Payments, or Expense Payments; If Users choose hourly compensation, and/or if the customer makes bonus or expense payments, to the supplier of services, then the Users agree that they will be bound by, and OnTrak 4x4 Payments will follow, the Hourly, Bonus and Expense Payment Agreement with Payment Instructions as set out in the relevant purchase of such services.
26.2 NON CIRCUMVENTION26.2.1 A Contractor/Supplier of Services/Products may not deal direct with a buyer with the exclusion of OnTrak 4x4 in any manner not given consent to by OnTrak 4x4, and vice versa. This applies for all instances where the buyer has been put in touch with the Contractor/Supplier of Services/Products, through the site and vice versa.
26.2.2 Should this happen, then the Contractor/Supplier of Services/Products, would be liable to payment of a fee upwards of $2000 + GST, and buyer would be liable for payment of a fee upwards of $500 + GST to OnTrak 4x4.
27 PAYMENT TERMS
27.1 SERVICE FEE
27.1.1 When a Buyer pays OnTrak 4x4 for services of a Contractor/Supplier of Services, or when funds related to an Engagement are otherwise released to OnTrak 4x4 for a Contractor/supplier of services/products as required by the applicable Service Instructions, OnTrak 4x4 will credit the Contractor/Supplier of Services/Products Banking/Pay System [PayPal, Stripe etc] Account for the full amount paid or released, and then subtract and disburse to OnTrak 4x4, Contractor/Supplier of Services/Products, a service fee in the amount specified in the OnTrak 4x4 Contractor/Supplier of Services/Products Agreement (the “Service Fee”).
27.1.2 The Buyer in respect to receiving the services of a Contractor/Supplier of Services/Products, assigned to their account by OnTrak 4x4, agrees to pay OnTrak 4x4 the Service Fee for using the Site’s communication, reporting, tasking, dispute resolution and electronic services, for works carried out by a Contractor/Supplier of Services/Products, as well any other fee’s, should this arrangement exist, in a supported account for the user.
27.2 6.2 INSTANCES OF BUYER FEES
27.2.1 The Buyer will subscribe to different levels of participation and privileges on the Site, by payment of monies for orders placed as described in and subject to the terms of a Service Agreement, with the Buyer in relation to the use of the Site and its facilities by the User of the account, and also for the provision of any fee’s payable to OnTrak 4x4 Contractor/Supplier of Services/Products who provide products/services to the buyers account, as may be revised from time to time upon such notice as may be appropriate.
27.3 FEE FOR INTRODUCING OR FOR FINDING ENGAGEMENTS
27.3.1 OnTrak 4x4 may introduce Buyers to Contractor/Supplier of Services/Products and does help Contractor/Supplier of Services/Products secure Engagements, in all instances.
27.3.2 OnTrak 4x4 merely makes the Site Services available to enable Contractor/Supplier of Services/Products to carry out work for buyers on buyer accounts. Therefore, OnTrak 4x4 may charge a fee when a Contractor/Supplier of Services/Products finds a suitable buyer or finds an Engagement, and vice versa should the instance occur.
27.3.3 However, a buyer and a Contractor/Supplier of Services/Products are obligated to use the Site to pay and receive payment for their work together if they identified each other through the Site, as detailed in Section 26.2 & Section 28 (Non-Circumvention), above and below.
27.3.4 In addition, OnTrak 4x4 does not charge any additional fee or dues for posting public feedback and composite or compiled feedback, including ratings and reviews, to enable Contractor/Supplier of Services/Products, to choose each other should this instance ever arise.
27.4 DISBURSEMENTS TO DESIGNATED SUPPLIERS
27.4.1 Under the relevant Payment Instructions, OnTrak 4x4 disburses funds that are payable to a Contractor/Supplier of Services/Products for the Engagement (less any applicable OnTrak 4x4 fees) to Contractor/Supplier of Services/Products within 90 days after the Contractor/Supplier of Services/Products Fees are due and payable from the buyer (or for amounts less than $100, within 45 days after the Contractor/Supplier of Services/Products Fees are due and payable from the buyer).
27.4.2 The Contractor/Supplier of Services/Products agrees that it will not receive interest or other earnings on the funds held by OnTrak 4x4 prior to disbursement to Contractor/Supplier of Services/Products.
27.4.3 For Hourly Contracts, funds become payable to Contractor/Supplier of Services/Products following the expiration of any dispute period and the security period.
27.4.4 For Fixed-Price Contracts, the Contractor/Supplier of Services/Products Fees become payable to the Contractor/Supplier of Services/Products following the expiration of the security period.
27.4.5 The security period begins after the buyer accepts and approves work submitted by the Contractor/Supplier of Services/Products, by providing indication, that the work has been done and completed in full.
27.4.6 OnTrak 4x4, may, in their sole discretion, deviate from the typical billing cycle for Hourly Contracts and charge the buyer for any and all Time Logs at any time submitted by the Contractor/Supplier of Services/Products; To the extent the Payment Instructions are inconsistent with this paragraph, the Payment Instructions on a Service Agreement with the buyer govern.
27.4.7 Notwithstanding any other provision of the Terms of Service or the Payment Instructions, and except as prohibited by applicable law, if we determine in our sole discretion that you have violated the conditions and restrictions of the Site or the Terms of Service, OnTrak 4x4 may hold the disbursement of the Contractor/Supplier of Services/Products Fees. Additionally, OnTrak 4x4 may also hold the disbursement of the Contractor/Supplier of Services/Products Fees if: (a) we require additional information, such as Contractor/Supplier of Services/Products tax information, government-issued ABN, identification, address, or date of birth; (b) we have reason to believe the Contractor/Supplier of Services/Products Fees may be subject to dispute or chargeback; (c) we suspect fraud; (d) we believe there are reasonable grounds for insecurity with respect to the performance of obligations under a Service Contract, this Agreement, or other Terms of Service; (e) we deem it necessary in connection with any investigation; or (f) required by applicable law.
27.4.8 In cases of fraud, abuse, or violation of the Terms of Service, OnTrak 4x4 reserves the right to revoke any payments and instruct OnTrak 4x4 to (and OnTrak 4x4 will have the right to) hold and reclaim from OnTrak 4x4 all Contractor/Supplier of Services/Products Fees due to Contractor/Supplier of Services/Products (not just the Contractor/Supplier of Services/Products Fees from the Service Contract(s) under investigation) unless prohibited by applicable law.
27.4.9 In addition, we reserve the right to seek reimbursement from you, and you will reimburse us, if we suspect fraud or criminal activity associated with your payment, withdrawal, or Engagement; if we discover erroneous or duplicate transactions; or if we have supplied our services in accordance with this Agreement yet we receive any chargeback from the Payment Method used by you, or used by your Buyer if you are a Contractor/Supplier of Services/Products.
27.4.10 You agree that we have the right to obtain such reimbursement by instructing OnTrak 4x4 to (and OnTrak 4x4 will have the right to) charge an applicable Fee, offsetting any amounts determined to be owing, deducting amounts from future payments or withdrawals, charging a Payment Method, or obtaining reimbursement from you by any other lawful means. Failure to pay for reimbursements of chargebacks is cause for termination of the applicable Service Account and revocation of your access to the Site.
27.5.1 If a buyer fails to pay the Contractor/Supplier of Services/Products Fees or any other amounts due under the Terms of Service, whether by cancelling the buyers credit or debit card, initiating an improper chargeback, or any other means, OnTrak 4x4 may suspend or close the buyers Account and revoke the buyers access to the Site, including the buyers authority to use the Site to process any additional work, enter into Service Contracts, or obtain any additional Contractor/Supplier of Services/Products Services.
27.5.2 Without limiting other available remedies, the buyer must pay OnTrak 4x4 upon demand for amounts owed under the Terms of Service, plus interest on the outstanding amount at the lesser of one and one-half per cent (1.5%) per month or the maximum interest allowed by applicable law, plus legal’ fees and other costs of collection to the extent permitted by applicable law.
27.5.3 To the extent permitted by applicable law, OnTrak 4x4 at our discretion, may offset amounts due against other amounts received from or held by OnTrak 4x4 for the Buyer, make appropriate reports to credit reporting agencies and law enforcement authorities, and cooperate with credit reporting agencies and law enforcement authorities in any resulting investigation or prosecution.
27.6 NO RETURN OF FUNDS
27.6.1 The Buyer acknowledges and agrees that OnTrak 4x4 will charge the Buyer’s designated Payment Method for usage of the Site to the level of privileges that the Buyer has chosen, from options, as well as [if applicable] the Contractor/Supplier of Services/Products Fees: (a) for Fixed-Price Contracts, upon Buyer’s acceptance and approval of the Contractor/Supplier of Services/Products Services, and (b) for Hourly Contracts, on the day after, or later after the day in which work was performed and consent given as completed. The Buyer has up to 5 days to respond to any issues, after a work has been carried out or project has been marked as completed by a Contractor/Supplier of Services/Products.
27.6.2 Therefore, and in consideration of the Site Services provided by OnTrak 4x4 and the Transaction Services provided by OnTrak 4x4, the Buyer agrees that once OnTrak 4x4 charges the Buyer’s designated Payment Method for the Contractor/Supplier of Services/Products Fees as provided in this Agreement or the other Terms of Service, the charge is non-refundable, except as otherwise required by applicable law.
27.6.3 The Buyer also acknowledges and agrees that the Terms of Service provide a dispute resolution process as a way for the Buyer to resolve disputes.
27.6.4 To the extent permitted by applicable law, the Buyer therefore agrees not to ask its credit card company, bank, or other Payment Method provider to charge back any Contractor/Supplier of Services/Products Fees or other Fees charged pursuant to the Terms of Service with OnTrak 4x4 for any reason.
27.6.5 A chargeback in breach of the foregoing obligation is a material breach of the Terms of Service. If the Buyer initiates a chargeback in violation of this Agreement, the Buyer agrees that OnTrak 4x4, may dispute or appeal the chargeback and institute collection action against the Buyer for fee’s in relation to added costs of a charge back.
27.7 FORMAL INVOICES AND TAXES
27.7.1 OnTrak 4x4 will have no responsibility for determining the necessity of or for issuing any formal invoices, or for determining, remitting, or withholding any taxes applicable to the Contractor/Supplier of Services/Products Fees.
27.7.2 The Contractor/Supplier of Services/Products will be solely responsible for determining whether it is required by applicable law to issue any formal invoices for the Contractor/Supplier of Services/Products Fees and for issuing any invoices so required.
27.7.3 The Contractor/Supplier of Services/Products will also be solely responsible for determining whether: (a) Contractor/Supplier of Services/Products or OnTrak 4x4 is required by applicable law to remit to the appropriate authorities any value added tax or any other taxes or similar charges applicable to the Contractor/Supplier of Services/Products Fees and remitting any such taxes or charges to the appropriate authorities on behalf of itself or OnTrak 4x4, as appropriate; and (b) OnTrak 4x4 is required by applicable law to withhold any amount of the Contractor/Supplier of Services/Products Fees and for notifying OnTrak 4x4 of any such requirement and indemnifying OnTrak 4x4 (either by OnTrak 4x4, at our sole discretion, offsetting the relevant amount against a future payment of Contractor/Supplier of Services/Products Fees to the Contractor/Supplier of Services/Products or the Contractor/Supplier of Services/Products reimbursing OnTrak 4x4 for the applicable amount) for any requirement to pay any withholding amount to the appropriate authorities (including penalties and interest). In the event of an audit of OnTrak 4x4, the Contractor/Supplier of Services/Products agrees to promptly cooperate with OnTrak 4x4 and provide copies of Contractor/Supplier of Services/Products tax returns and other documents as may be reasonably requested for purposes of such audit, including but not limited to records showing Contractor/Supplier of Services/Products is engaging in an independent business as represented to OnTrak 4x4.
27.8 PAYMENT METHODS
27.8.1 Buyers are charged a fee for payment processing and administration as described in the OnTrak 4x4 Service Agreement with the Buyer, in the case of supported accounts.
27.8.2 In order to use certain Site Services, the Buyer must provide account information for at least one valid Payment Method. This applies to supported and unsupported accounts.
27.8.3 The Buyer hereby authorizes OnTrak 4x4, to run credit card authorizations on all credit cards provided by Buyer, to store credit card and banking or other financial details as the Buyer’s method of payment for Services, and to charge the Buyer’s credit card (or any other Payment Method). Credit cards and Online Pay Systems [e.g. PayPal etc] accounts and, if applicable, bank accounts in most countries will be charged by OnTrak 4x4.
27.8.4 When the Buyer authorizes the payment of the Contractor/Supplier of Services/Products Fees for a Fixed-Price Contract on the Site, the Buyer automatically and irrevocably authorizes and instructs OnTrak 4x4, to charge the Buyer’s Payment Method for the Contractor/Supplier of Services/Products Fees. When the Buyer approves or is deemed to have approved a Time Log for an Hourly Contract, the Buyer automatically and irrevocably authorizes and instructs OnTrak 4x4, to charge the Buyer’s Payment Method for the Contractor/Supplier of Services/Products Fees
27.8.5 By providing Payment Method information through any manner to OnTrak 4x4, the Buyer represents, warrants, and covenants that: (a) the Buyer is legally authorized to provide such information; (b) the Buyer is legally authorized to perform payments using the Payment Method(s); and (c) such action does not violate the terms and conditions applicable to the Buyer’s use of such Payment Method(s) or applicable law. When the Buyer authorizes a payment using a Payment Method via the Site, or through a OnTrak 4x4 payment processing facility, the Buyer represents, warrants, and covenants that there are sufficient funds or credit available to complete the payment using the designated Payment Method. To the extent that any amounts owed under this Agreement or the other Terms of Service cannot be collected from the Buyer’s Payment Method(s), the Buyer is solely responsible for paying such amounts by other means immediately.
27.8.6 By providing Payment Method information through any manner to OnTrak 4x4, the Buyer represents, warrants, and covenants that: (a) the Buyer is legally authorized to provide such information; (b) the Buyer is legally authorized to perform payments using the Payment Method(s); and (c) such action does not violate the terms and conditions applicable to the Buyer’s use of such Payment Method(s) or applicable law. When the Buyer authorizes a payment using a Payment Method via the Site, or through a OnTrak 4x4 payment processing facility, the Buyer represents, warrants, and covenants that there are sufficient funds or credit available to complete the payment using the designated Payment Method. To the extent that any amounts owed under this Agreement or the other Terms of Service cannot be collected from the Buyer’s Payment Method(s), the Buyer is solely responsible for paying such amounts by other means immediately.
27.9 AUSTRALIAN DOLLARS [AUD] AND FOREIGN CURRENCY CONVERSION
27.9.1 The Site and the Site Services operate in Australian Dollars [AUD]. If the Buyer’s Payment Method is denominated in a currency other than AUD and requires currency conversion to make payments in AUD, OnTrak 4x4, may indicate foreign currency conversion rates that OnTrak 4x4, or other Affiliates currently make available to convert supported foreign currencies to AUD. These foreign currency conversion rates adjust regularly based on market conditions. Please note that the wholesale currency conversion rates at which we, or our Affiliates, obtain foreign currency will usually be different than the foreign currency conversion rates offered on, various internet Sites or exchanges.
27.9.2 The Buyer, at its sole discretion and risk, may authorize the charge of its Payment Method in a supported foreign currency and the conversion of the payment to AUD at the foreign currency conversion rate indicated by OnTrak 4x4. A list of supported foreign currencies may be available on the Site. If foreign currency conversion is required to make a payment in AUD and either OnTrak 4x4, or another Affiliate does not support the foreign currency or Buyer does not authorize the conversion of such payment at the foreign currency conversion rate displayed on the Site, OnTrak 4x4 or an Affiliate will charge the Buyer’s Payment Method in AUD and the Buyer’s Payment Method provider will convert the payment at a foreign currency conversion rate selected by the Buyer’s Payment Method provider, however the amount paid to OnTrak 4x4 will be the full amount in AUD that was indicated on the transaction with the Buyer and OnTrak 4x4 do not incur any of the fees on the Buyers behalf, should any fees be incurred. Thus OnTrak 4x4 receives the full amount in AUD, for the services rendered.
27.9.3 The Buyer’s Payment Method provider may also charge fees directly to the Payment Method used to fund a cross-border payment even when no currency conversion is involved. The Buyer’s authorization of a payment using a foreign currency conversion rate displayed on the Site, or agreements with OnTrak 4x4 is at the Buyer’s sole risk. OnTrak 4x4, and other Affiliates are not responsible for currency fluctuations that occur when billing or crediting a Payment Method denominated in a currency other than AUD. OnTrak 4x4, and other Affiliates are not responsible for currency fluctuations that occur when receiving or sending payments via wire transfer, check or automated clearinghouse to and from any charge Account.
27.10 LIMITED PAYMENT PROTECTION
27.10.1 In the rare event that a Buyer does not make payment for legitimate services performed by a Contractor/Supplier of Services/Products, OnTrak 4x4 may provide limited payment protection to the Contractor/Supplier of Services/Products as detailed in this Section (“Limited Payment Protection”) as a relationship benefit to foster fairness, reward loyalty, and encourage the Contractor/Supplier of Services/Products to continue to keep working for their business needs in the industry.
27.10.2 OnTrak 4x4 only provides Limited Payment Protection to Contractor/Supplier of Services/Products working on Hourly Contracts, that are approved and official Contractor/Supplier of Services/Products, members, and only if all of requirements of the Hourly, Bonus, and Expense Payment Agreement with working Instructions and the following criteria are met: (1) The Buyer has a verified Payment Method; (2) the time represented is captured online using the OnTrak 4x4 Team Software; (3) the Contractor/Supplier of Services/Products Services performed and recorded in the Time Log pertain directly to the Service Contract; and (4) each Time Log is annotated with descriptions of the Contractor/Supplier of Services/Products Services performed, demonstrating Service Contract compliance.
27.10.3 OnTrak 4x4 determines whether the foregoing criteria have been met in our sole discretion. Without limiting the foregoing, Payment Protection does not apply to: (5) Contractor/Supplier of Services/Products, Contractor/Supplier of Services/Products Services, or Service Contracts violating this Agreement or the other Terms of Service; (6) Contractor/Supplier of Services/Products that are aware of or complicit in another User’s violation of this Agreement or the other Terms of Service; (7) Contractor/Supplier of Services/Products enrolled in OnTrak 4x4 Payroll; or (8) Contractor/Supplier of Services/Products that are suspected (in OnTrak 4x4’s sole discretion) of actual fraudulent activities or abuse of this Payment Protection; (9) Contractors/Consultants/Users, that are general marketplace users, but are not officially working under OnTrak 4x4, in any capacity, however have been chosen to carry out works on Owner/Operator User accounts at the selection of the Owner/Operator Account owner.
27.10.4 A Contractor/Supplier of Services/Products hereby irrevocably assigns to OnTrak 4x4 the right to recover from the Buyer any amounts that OnTrak 4x4 or our Affiliates provide to the Contractor/Supplier of Services/Products in connection with the Payment Protection membership benefit.
27.10.5 The Contractor/Supplier of Services/Products, acknowledges that in certain instances that payment protection may not be applicable, from OnTrak 4x4, due to reasonable reasons for that instance.
28.1 SERVICE FEE
28.1.1 You acknowledge and agree that a substantial portion of the compensation OnTrak 4x4 receives for making the Site available to you is collected through the Service Fee described in Section 6.1 (“Service Fee”). OnTrak 4x4 only receives this Service Fee when a Buyer pays.
28.1.2 Therefore, for 24 months from the time you identify or are identified by any party through the Site (the “Non-Circumvention Period”), you must use the Site as your exclusive method to request, make, and receive all communications for work directly or indirectly with that Contractor/Supplier of Services/Products or arising out of your relationship with that such instance (the “ OnTrak 4x4 Relationship”). You may opt-out of this obligation with respect to each Buyer-Contractor/Supplier of Services/Products relationship only if the Buyer or prospective Buyer or Contractor/Supplier of Services/Products pays OnTrak 4x4 a fee for each such relationship, that will exist outside the scope of works through the Site, or with Contractor/Supplier of Services/Products, that are officially working under OnTrak 4x4, to carry out works on the Site in Owner/Operator user accounts.
22.214.171.124 an “Opt-Out Fee” computed to be the greater of the following amounts:
126.96.36.199.1 Upwards of: $2,000 + GST from a Contractor/Supplier of Services/Products and $500 + GST; decided from a review of circumstances or
188.8.131.52.2 50% of the cost to the Buyer of the services to be performed, over a 24 month period, in the OnTrak 4x4 Relationship with the Buyer, through a “buyer account” during the Non-Circumvention Period, as estimated in good faith by the prospective Buyer; or
184.108.40.206.3 all Service Fees that would be earned by OnTrak 4x4, over a 24 month period, from the OnTrak 4x4 Relationship during the Non-Circumvention Period, computed based on the annualized amount earned by Contractor/Supplier of Services/Products from Buyer during the most recent normalized 8-week period, or during such shorter period as data is available to OnTrak 4x4; and
220.127.116.11 interest at the rate of 27% per annum or the maximum rate permitted by applicable law, whichever is less, calculated from the date Buyer first makes payment to the subject Contractor/Supplier of Services/Products until the date the Opt-Out Fee is paid.
28.1.3 To pay the Opt-Out Fee, you must request instructions by sending an email message to admin@Xedosoft.com.
28.1.4 Except if you pay the Opt-Out Fee, you agree not to circumvent the Payment Methods offered by OnTrak 4x4. By way of illustration and not in limitation of the foregoing, you must not:
18.104.22.168 Submit proposals or solicit parties identified through the Site to contact, hire, work with, or pay outside the Site.
22.214.171.124 Accept proposals or solicit parties identified through the Site to contact, deliver services, invoice, or receive payment outside the Site.
126.96.36.199 Invoice or report on the Site or in an Opt-Out Fee request an invoice or payment amount lower than that actually agreed between Users
28.1.5 You agree to notify OnTrak 4x4 immediately if another person improperly contacts you or suggests making or receiving payments outside of the Site. If you are aware of a breach or potential breach of this non-circumvention agreement, please submit a confidential report to OnTrak 4x4 by sending an email message to: email@example.com.
28.1.6 If you refuse to accept any new version of the Terms of Service or elect not to comply with certain conditions of using the Site, such as minimum rates supported for Contractor/Supplier of Services/Products, and therefore choose to cease using the Site, you may pay the Opt-Out Fee for each other User you wish to continue working with on whatever terms you agree after you cease using the Site.
28.2 SERVICE CONTRACT TERMS
28.2.1 Unless otherwise expressly agreed to in writing, and except for Contractor/Supplier of Services/Products Services under the OnTrak 4x4 Payroll program, the default terms and conditions of the Service Contract that a Contractor/Supplier of Services/Products enters directly with OnTrak 4x4, when the Contractor/Supplier of Services/Products agrees to provide the Contractor/Supplier of Services/Products Services for a Buyer are as set forth in this agreement.
28.2.2 Users agree that the terms concerning the Service Contract described on the Site, including Contractor/Supplier of Services/Products Fees, rates, hours, and milestones, form part of the Service Contract. Users agree to obtain the consent of OnTrak 4x4, before making changes to the Service Contract by adding additional or different criteria or making other changes to any Service Contract in relation to works being carried out. If consent of the other party is not first obtained, the other party may reject such changes by terminating the Service Contract (see Section 28.7) or accept such changes by continuing to work on the Service Contract.
28.3.1 A Contractor/Supplier of Services/Products will perform the Contractor/Supplier of Services/Products Services in a professional and workman like manner and will timely deliver any agreed upon Work/Product designated. The manner and means of performing the Contractor/Supplier of Services/Products Services will be determined and controlled solely by the Contractor/Supplier of Services/Products, through All Communication with OnTrak 4x4, which is engaged by Buyer as a independent contractor.
28.4 RESPONSIBILITY FOR BUYERS AND SUBCONTRACTORS, INCLUDING OWNER/OPERATOR ACCOUNT SUB USER MEMBERS & MARKETPLACE CONSULTANT USERS
28.4.1 To ensure accurate billing, work billed for Hourly Contracts under a Contractor/Supplier of Services/Products work, must be entered by the Contractor/Supplier of Services/Products that has the Account. With a Fitment Badge approved Account, the Contractor/Supplier of Services/Products may bill for hourly work done by the Contractor/Supplier of Services/Products User Members, for the buyer user, in which instance the payment and service agreement is between the Contractor/Supplier of Services/Products User and the Buyer User, and not between OnTrak 4x4.
28.4.2 If a Contractor/Supplier of Services/Products subcontracts with or employs third parties to perform Contractor/Supplier of Services/Products Services, or Marketplace Consultant users, on behalf of the User for any Engagement, the Contractor/Supplier of Services/Products User represents and warrants that it does so as a legally recognized entity or person and in compliance with all applicable laws and regulations.
28.4.3 As used in this Agreement, the term “Delegee” refers to any employee, independent contractor, or agent of a Contractor/Supplier of Services/Products User, including an Owner/Operator Account Sub User Member, that the Contractor/Supplier of Services/Products User engages to perform any work on its behalf under a Service Contract. Regardless of whether a Contractor/Supplier of Services/Products User has Delegees, the Contractor/Supplier of Services/Products User remains responsible for all services performed under the Contractor/Supplier of Services/Products User’s Service Contracts, including ensuring that the services comply with the Terms of Service (including confidentiality and intellectual property obligations).
28.4.4 Each Contractor/Supplier of Services/Products User specifically acknowledges and agrees that Contractor/Supplier of Services/Products User Members have the authority to bind the Contractor/Supplier of Services/Products User’s Delegees to Service Contracts entered into by Contractor/Supplier of Services/Products User Members on behalf of the Contractor/Supplier of Services/Products User.
28.4.5 The Contractor/Supplier of Services/Products, Contractor/Supplier of Services/Products User’s, Delegee, and Buyer acknowledge and agree that Delegees are not employees, independent contractors or agents of OnTrak 4x4.
28.4.6 The Contractor/Supplier of Services/Products User’s, Delegee, and Contractor/Supplier of Services/Products represent, warrant, and covenant that: (a) Contractor/Supplier of Services/Products User and, if applicable, each other Contractor/Supplier of Services/Products User in collaboration on any job or project is solely responsible for all payments, obligations, wages, costs, unemployment insurance, workers’ compensation insurance, contributions, and expenses of Delegees; (b) OnTrak 4x4 has not the right or power to supervise or control Delegees; and (c) no Delegees of any Owner/Operator Account Sub User or other User will have any claim under this Agreement or the other Terms of Service for overtime pay, sick leave, holiday or vacation pay, retirement benefits, worker’s compensation benefits, unemployment benefits, contributions, or any other employee benefits of any kind from OnTrak 4x4 or Buyer.
28.4.7 With respect to Delegees, OnTrak 4x4 merely provides the platform for Contractor/Supplier of Services/Products User’s or Contractor/Supplier of Services/Products to communicate and share information with Buyers and, if they are Contractor/Supplier of Services/Products Users, with Delegees; Owner/Operator Account User’s, Delegee, and Contractor/Supplier of Services/Products understand and agree that the contract terms, pay rate, work hours, service dates and working conditions will be established by the Contractor/Supplier of Services/Products User, Contractor/Supplier of Services/Products, and/or Buyer and not by OnTrak 4x4, in arrangements that are outside any programs offered by OnTrak 4x4.
28.4.8 Owner/Operator Account Sub User, Delegee, and Contractor/Supplier of Services/Products acknowledge and agree that Delegees are not employees or independent contractors of OnTrak 4x4, and further acknowledge and agree that they will not be providing any services to OnTrak 4x4 (directly or indirectly) while employed or engaged by the Owner/Operator Account User or another User
28.4.9 Contractor/Supplier of Services/Products User’s, Delegee, and Contractor/Supplier of Services/Products acknowledge and agree that OnTrak 4x4 does not, in any way, supervise, direct, or control Contractor/Supplier of Services/Products Delegees; OnTrak 4x4 does not set Delegees’ contract terms (including determining whether the contract will be set at an hourly or fixed fee), fees, rates, work hours, work schedules, or location of work; OnTrak 4x4 will not provide Delegees with training or any equipment, labour, or materials needed for a particular Service Contract; and OnTrak 4x4 does not provide the premises at which the Delegees will perform the work.
28.5 BUYER PAYMENTS AND BILLING
28.5.1 For Hourly Contracts, under supported accounts or work programs offered by OnTrak 4x4, the Buyer becomes obligated for Contractor/Supplier of Services/Products provided officially through OnTrak 4x4 Fees any basis.
28.5.2 For Fixed-Price Contracts, the Buyer becomes obligated immediately upon sending/accepting a Fixed-Price Contract offer or upon activating any additional work requirements, in agreement through the Service Agreement with OnTrak 4x4.
28.6 DISPUTE RESOLUTION
28.6.1 With respect to disputes arising between Buyers and OnTrak 4x4 or OnTrak 4x4 and Contractor/Supplier of Services/Products, you agree to abide by the dispute resolution provisions set forth in the respective agreements that apply to your particular Service Contract
28.7 TERMINATION OF A SERVICE CONTRACT
28.7.1 Under Hourly Contracts, either the Buyer or the Contractor/Supplier of Services/Products has the right to terminate the Service Contract after providing any required notice, or immediately on the end date specified in the Service Contract terms and/or upon completion of the Contractor/Supplier of Services/Products Services, in the event of a material breach, or with the consent of the other party, except as required by law, the Buyer remains obligated to pay the Contractor/Supplier of Services/Products Fees for any Contractor/Supplier of Services/Products Services, to OnTrak 4x4, provided prior to termination of the Hourly Contract.