IT IS AGREED
1.1. In this Agreement:
Agents means GPSTS’s agents, dealers and any third party providing services to the Customer on behalf of GPSTS in relation to the supply of the Tracking Pack to Customers;
Agreement means these terms and conditions and the Order Form;
Asset means the vehicle, vehicles or other assets owned, managed or operated by the Customer in the Territory;
Asset Data means data relating to an Asset;
Australian Consumer Law or ACL means the law as set out in Schedule 2 of the Competition and Consumer Act 2010 (C’th);
Authorised GPS Installer means an auto electrician or GPS installer authorised by GPSTS to carry out the Installation;
Customer means the customer described in the Order Form;
Customer Data means the Location Data, Asset Data, and any other data provided by the Customer to GPSTS for the purposes of the Tracking Service;
Documentation means any instruction manuals, user guides and other information relating to the Tracking Pack;
Due Date means the date on or before the 10th day of the month following the date of the invoice;
Effective Date means the date that the Customer and GPSTS enter into the Agreement for the provision of Tracking Packs set out in the applicable Order Form;
GLONASS means the Global Navigation Satellite System;
GPS means the Global Positioning System;
GSM Provider means the person authorised by GPSTS to provide the Transmission Services to the Customer;
GPSTS means GPS Tracking Systems Pty Ltd (ACN 29 612 079 268) of Level 11, Brookfield Place, 125 St Georges Terrace, Perth WA 6000;
GPSTS Installer means a person approved by GPSTS to install and de-install the Transmission Unit;
Hard Wired Transmission Unit means a Transmission Unit that is permanently connected to an Asset by electrical wires;
Head Licence means the licence(s) under which GPSTS has the right to use, access, promote and sub-licence any component of the Tracking Pack or Platform;
Hire Purchase Arrangement has the meaning given in clause 15.8;
Hire Purchase Fees means the fees payable for the Hire Purchase Arrangement as set out in the Order Form;
Insolvency Event means any insolvency-related event suffered by the Customer, including without limitation where:
1.1.1. the Customer ceases to carry on business or be able to pay its debts as they become due;
1.1.2. the Customer disposes of the whole or any substantial part of its assets, operation or business;
1.1.3. any step is taken by a mortgagee to take possession or dispose of the whole or a substantial part of the Customer’s material assets, operations or business;
1.1.4. any step is taken to enter into any arrangement between the Customer and its creditors (other than in the case of a solvent reconstruction or reorganisation);
1.1.5. any step is taken to appoint a receiver, a receiver and manager, a trustee in bankruptcy, a provisional liquidator, a liquidator, an administrator, or other like person of the whole or part of the Customer’s assets, operation or business;
1.1.6. an administrator is appointed under the Corporations Act 2001, a receiver, receiver and manager, voluntary administrator, a manager appointed under the Corporations Act 2001, a trustee, provisional liquidator, liquidator or any other person (however described) holding or appointed to an analogous office or acting or purporting to act in an analogous capacity.
Installation means the installation and set-up of a Transmission Unit in the Customer’s Asset and Installs has a corresponding meaning.
Installation Fee means the cost of the Installation and set-up of the Transmission Unit as set out in the Order Form and charged by GPSTS to the Customer;
Intellectual Property Rights means the rights to patents, licenses, trademarks, trade names, inventions, trade secrets, copyrights, and know-how relating to the origin, manufacture, programming, operating and/or servicing of the Tracking Pack and any enhancements or modifications relating to the same;
Location Data means data on the geographical position of the Transmission Unit, including GPS or GLONASS data;
Login Information means the username(s), password(s) and any other information provided to you or by you for the purpose of accessing the Tracking Service or Website;
Loss includes losses, liabilities, penalties, damages, costs, charges and expenses (including legal expenses on a solicitor own client basis) and Losses has a corresponding meaning;
Mapping Data means third party GPS location maps;
Maximum Units means the maximum number of concurrent Transmission Units set out in the Order Form or otherwise agreed between the parties from time to time in accordance with this Agreement;
Mobile App means either the iOS app or the Android app authorised for connectivity to the Tracking Service;
Order Form means the Customer Purchase Order Form which GPSTS provides to the Customer and the Customer completes and accepts to purchase Products and a Subscription to the Tracking Service in accordance with the terms of the Agreement;
Platform means the IT systems that run the Tracking Service;
Prepayment means a non-refundable upfront payment as set out in the Order Form which is required to be paid by the Customer. Where the Order Form is silent on the amount of the prepayment, the prepayment shall be 50% of the total price of the Product the subject of the Order Form;
Products means the products supplied by GPSTS to the Customer from time to time, including the Transmission Units;
Purchase Price means the purchase price for the Tracking Packs as set out in the Order Form. Prices are in $AUD and exclude GST and any other applicable taxes chargeable at the current rate, unless otherwise stated;
SMS Bulk Package means a package of 50 SMS alert messages per Transmission Unit per month that can be pooled across the Maximum Units;
SMS PAYG Fee means an SMS cost of $0.22 (including GST) per SMS alert message sent;
Subscription means the right to use the Tracking Service with up to the Maximum Units under this Agreement;
Subscription Fee means the fees as set out in the Order Form payable by the Customer to GPSTS for the Tracking Services. These fees include hire costs where applicable. Subscription fees are calculated based on the Subscription Period starting from the 1st day of the month following delivery of the Tracking Packs until the conditions in clauses 13.1 and 13.2 have been satisfied;
Subscription Packages means the packages listed on the Order Form from time to time;
Subscription Period means the subscription period specified in the Order Form. If no subscription period is specified on the Order Form, the Subscription Period will be 1 month;
Subscription Terms means these terms and conditions for the use of the Tracking Pack;
Support Services means the support services provided by GPSTS, as detailed in clause 6.36, during the Subscription Period to correct faults in the Tracking Pack or to assist the Customer in operating the Tracking Pack;
Territory means Australia (or such other territory as the parties may agree in writing);
Tracking Pack means the Products, Subscriptions to the Tracking Service, (either collectively or any part of the Tracking Pack in isolation), and any enhancements and modifications to the same;
Tracking Service means the online service, available via the Website or Mobile App, provided by GPSTS to enable the Customer to monitor the location of, and other data relating to, the Asset, to the extent that such Asset is located in the Territory, including by facilitating the transmission of Location Data and Asset Data between the Platform and the Transmission Units via a Transmission Service;
Transmission Service means the mobile electronic transmission services, which may include GSM/GPRS, Iridium satellite, SigFox, LoRa and RFID data transmissions;
Transmission Unit means a device in any form that is purchased by or otherwise supplied to the Customer by or on behalf of GPSTS, for the purpose of obtaining, sending and receiving one or more of: (a) Location Data; and (b) Asset Data, and communicating with the Tracking Service via Transmission Services;
Trial Period means a 30 day free trial period on the terms set out in clause 2.8 of this Agreement;
Warranty Period means, for Transmission Units sold or hired, 12 months (or such other period as the parties may agree in writing) commencing on the date of Installation of a Transmission Unit;
2. Scope of Agreement
2.1. Tracking Packs are supplied to the person or entity specified on the Order Form (Customer or you) pursuant to the terms set out in these Subscription Terms, the Website Terms and Conditions (Website Terms) and the Customer Purchase Order Form (Order Form). These Subscription Terms, the Website Terms and the Order Form (and any attachments thereto) together make up the legal agreement between you and GPSTS (Agreement).
2.2. By accessing or using the Tracking Pack, the Customer agrees to be bound by the Agreement and any other relevant policies published on the Website.
2.3. The supply of the Tracking Pack comprises:
2.3.1. the purchase of the Transmission Unit by the Customer (if purchased) or the use of the Transmission Unit for the period of the hire during the Subscription Period provided the Customer is not in default;
2.3.2. the licence to use the Tracking Service including updates during the Subscription Period provided the Customer is not in default;
2.3.3. telephone support of the Tracking Service during business hours during the Subscription Period provided the Customer is not in default;
2.3.4. the ability to obtain a replacement Transmission Unit if the Transmission Unit is faulty whilst hired subject to the terms of this Agreement. This does not include Installation/de-Installation services which are at the cost of the Customer;
2.3.5. the ability to obtain a replacement Transmission Unit if the Transmission Unit is faulty whilst within the Warranty Period if the Transmission Unit has been purchased, subject to the terms of this Agreement. This does not include Installation/de-Installation services which are at the cost of the Customer;
2.3.6. the supply of Transmission Services during the Subscription Period provided the Customer is not in default; and
2.3.7. the Tracking Services during the Subscription Period provided the Customer is not in default.
2.4. In using any Tracking Pack, you warrant that you have had sufficient opportunity to access the Agreement, and that you have read, accepted and will comply with this Agreement. You must be over 18 years of age to use or to purchase any Tracking Pack. If you do not agree to this Agreement, do not use the Tracking Packs.
2.5. Each Subscription grants the Customer a non-exclusive and non-transferable right to use the Documentation and Tracking Service with up to the Maximum Units, only for the purpose of collecting Asset Data and Location Data and for tracking and tracing the Asset and for reporting, planning and messaging purposes.
2.6. If the Head Licence is terminated for any reason, this sub-licence shall immediately come to an end without any liability to GPSTS.
2.7. We reserve the right to change, modify, add or remove portions of this Agreement from time to time. The revised Agreement will apply to your use of the Tracking Packs from the date of each renewal of your Subscription Period, unless otherwise agreed in writing. Please check the Agreement regularly to ensure you are aware of any changes. If you continue to use the Tracking Packs, then we will regard that use as conclusive evidence of your agreement and acceptance of the revised Agreement.
2.8. If GPSTS has agreed to a free trial period of a Product or Service (“Trial Item”) on the Order Form, then the following terms apply to that free trial period:
2.8.1. the trial period shall begin on the date Australia Post confirms delivery of the Trial Item to the customer and shall end on the date that is 30 days thereafter (“Trial Period”);
2.8.2. If the Trial Item is not returned by the Customer and physically received by GPSTS before the expiration of the Trial Period, then on expiration of the Trial Period, the Customer’s credit card will be debited the cost of the Product(s) (at the then current sale price of GPSTS) and in addition, the Customer shall be deemed to have commenced a Subscription with GPSTS and accordingly:
188.8.131.52. the Subscription Fee will be debited from the Customer’s credit card monthly in advance until terminated in accordance with clause 12 of this Agreement; and
184.108.40.206. the balance of the terms of this Agreement shall apply,
2.8.3. the Trial Item shall be at the risk of the Customer from delivery until GPSTS has received the Trial Item by return.
2.8.4. Other than as expressly provided in this clause 2.8 or would otherwise be inconsistent with the Trial Period, the balance of the terms of this Agreement shall apply during the Trial Period.
3. Ordering and Installation of Tracking Packs
3.1. Tracking Packs must be purchased via an Order Form. The Order Form is only binding on written acceptance by GPSTS and must contain:
3.1.1. The quantity of Products required;
3.1.2. The Subscription Fee options and quantity required;
3.1.3. The price agreed to be paid for the Products and Subscription Fees;
3.1.4. The date the Products are required by;
3.1.5. Any special requests or conditions; and
3.1.6. If relevant, the amount of Prepayment to be made.
3.2. Each Order Form completed by you is an offer to purchase Tracking Packs and, when accepted by GPSTS, will be subject to the terms of this Agreement.
3.3. An order for Tracking Packs may not be cancelled without prior approval in writing by GPSTS.
3.4. GPSTS will not be liable for any loss or damage for failure or delay in delivery of Tracking Packs (including consequential loss or liability for any amount payable by you to a third party).
3.5. Subject to the following, the Customer may purchase or otherwise be supplied with an unlimited number of Transmission Units:
3.5.1. You must not operate the Tracking Service with more than the Maximum Units, as amended from time to time.
3.5.2. The Customer may increase the Maximum Units at any time during the applicable Subscription Period subject to GPSTS’s consent and payment by Customer of any applicable Subscription Fee.
3.5.3. Subject to paragraphs 3.5.1 and 3.5.2, any increase to the Maximum Units will take effect immediately and apply to all future Subscription Periods.
3.5.4. The Customer may decrease the Maximum Units at any time during the Subscription Period by notice to GPSTS at least 30 days before the end of the applicable Subscription Period. Any decrease to the Maximum Units will take effect at the start of the next Subscription Period.
3.5.5. Products must only be used in conjunction with the Tracking Service, and for no other purpose.
3.5.6. For orders where the Maximum Units are less than 10, the Customer must complete a credit card direct debit authorisation and maintain a sufficient credit card credit limit at all times.
3.6. Risk of damage to or loss of the Tracking Pack, including any SIM cards, passes to the Customer upon delivery of the Tracking Pack to the Customer.
3.7. For Hard Wired Transmission Units, an Authorised GPS Installer must install and de-install the Transmission Unit. If an Authorised GPS Installer does not install or de-install the Hard Wired Transmission Units then the warranties provided in this Agreement will be affected in the manner set out in clause 10.8.
4. Personal Properties Securities Act 2009 (“PPSA”)
4.1. Notwithstanding clauses 14 and 15, the Customer acknowledges that:
4.1.1. these terms may create a security interest (as defined under the PPSA) in favour of GPSTS in the Tracking Pack sold to the Customer by GPSTS and that the Tracking Pack purchased from GPSTS remains the property of GPSTS until all monies due and owing under this Agreement are received in full by GPSTS;
4.1.2. if the Tracking Pack is hired, these terms create a security interest (as defined in the PPSA) in favour of GPSTS in the Tracking Pack hired to the Customer by GPSTS and that the title, to the Tracking Pack, remains with GPSTS at all times;
4.1.3. the Customer shall act immediately when requested by GPSTS to do such acts and provide such information that in GPSTS’s opinion may be necessary or desirable to enable GPSTS to perfect any security interest created or provided for by these terms, in the Tracking Pack or their proceeds with first priority; and
4.1.4. to the fullest extent permitted by law, the Customer waives any rights it may have now or in the future to receive a copy of any verification statement or other confirmation related to any security interest created or provided for by, or perfected in the manner contemplated by these terms.
4.2. The Customer agrees (to the extent permitted under the PPSA) that the Customer shall have no rights under the enforcement provisions of the PPSA.
4.3. The Customer is liable for all costs incurred by GPSTS in enforcing their rights under the PPSA.
5. Customer Obligations
5.1. The Customer must use the Tracking Pack strictly in accordance with any Documentation or reasonable instructions provided by GPSTS as to use, the Privacy Act and all other applicable Commonwealth or State law, Acts or regulations.
5.2. The Customer must also ensure that all other persons using the Tracking Pack operate in accordance with the Privacy Act and any other applicable Commonwealth or State law, Act or Regulation and any reasonable instructions provided by GPSTS as to use.
5.3. The Customer and those parties it allows to use the Tracking Pack have the sole responsibility to obtain any necessary consent from the users or operators of those devices or assets or vehicles where the Transmission Units are installed and must not use the Tracking Pack to illegally track or monitor any person without consent.
5.4. To the extent permitted by law, any liability that may arise from the use or operation of a Tracking Pack in breach of the terms of the Privacy Act or any Commonwealth or State law, Act or regulation, or contrary to any instructions provided by GPSTS as to use, remains the sole responsibility of the Customer and the Customer agrees to indemnify GPSTS for any loss or damage it may suffer as a result of a breach of this clause.
5.5. The Customer must not use any equipment in connection with the Tracking Pack that has not first been approved, in writing, by GPSTS.
5.6. The Customer will provide GPSTS with a contact person within the Customer’s organisation, or one contact person for each branch of the Customer’s organisation. This contact person or contact people will be the liaison person or persons with GPSTS regarding the terms of this Agreement.
6. Support Services
6.1. During the Subscription Period, GPSTS shall provide the Support Services. Any additional costs incurred by GPSTS in the provision of Support Services will be payable by the Customer, including, but not limited to:
6.1.1. removing or re-installing the Transmission Unit from any Asset nominated by the Customer;
6.1.2. any freight or transportation costs incurred;
6.1.3. travel cost for callouts; and/or
6.1.4. time incurred in callouts.
6.2. If the Customer requires support for the Tracking Pack, the Customer will call GPSTS’s customer support number 1300 88 36 79 or contact GPSTS by email on [email protected] Support is only available during the hours of 7am to 5pm Monday to Friday in Western Australia.
6.3. GPSTS will use its reasonable efforts to provide Support Services for the Tracking Pack during the Subscription Period.
6.4. The Support Services do not include services that are required as a result of:
6.4.1. misuse of the Tracking Pack or failure to use the Tracking Pack in accordance with the Documentation;
6.4.2. unauthorised attempts to repair, replace, modify or maintain the Tracking Pack; or
6.4.3. damage to the Tracking Pack that occurs during or subsequent to a breach of the terms of this Agreement by the Customer.
6.5. GPSTS may suspend Tracking Services or Transmission Services at any time without notice, for any reason including but not limited to, technical reasons, network repairs, Head Licence issues or to comply with any law or order from an emergency service or government authority.
6.6. The provision of Support Services are contingent upon the Transmission Unit being installed in accordance with clause 3.7.
7.1. If GPSTS accepts your Order Form to purchase Transmission Units or other Products, you will be charged and must pay the Purchase Price for the applicable Products specified in the Order Form. Any change to the applicable Purchase Price must be agreed between GPSTS and you in writing. GPSTS will invoice you and you must pay the applicable Prepayment for GPSTS to initiate the supply and/or the configuration of the Transmission Units or other Products.
7.2. GPSTS will deliver the number of Transmission Units or other Products specified in the accepted Order Form to the Customer at the address provided by the Customer on the Order Form. The balance of the Purchase Price from the Order Form will be invoiced by GPSTS and must be paid within 7 days of delivery of the Products.
7.3. The prices payable for Products may be quoted on the Website (or published in writing as part of the purchase and registration process) and amended from time to time by GPSTS.
7.4. GPSTS will provide the Customer with SIM cards for each Transmission Unit that the Customer is licensed to use in connection with the Tracking Service, which the Customer shall use solely:
7.4.1. in combination with the Transmission Units; and
7.4.2. for transmitting Location Data and Asset Data between the Asset and the Platform.
7.5. The ownership of SIM cards provided by GPSTS is retained by GPSTS and the Customer must return or destroy such SIM cards upon expiry or termination of the Agreement, or at GPSTS’s direction upon a reduction in the Maximum Units in accordance with this Agreement.
7.6. The Customer shall indemnify, defend and hold GPSTS and its affiliates harmless from and against any losses, damages, fines, costs or expenses (including legal fees) arising from or in connection with claims from third parties, in particular the underlying wireless service carrier, relating to any use of the SIM cards provided by GPSTS which is in breach of this Agreement.
8. Subscription Fees
8.1. If GPSTS accepts your Order Form for a Subscription to the Tracking Service, you will be charged and must pay the Subscription Fee for the applicable Subscription Period specified on the Order Form. Any change to the Subscription Period, Maximum Units and applicable Subscription Fees must be agreed between GPSTS and you in writing.
8.2. This Agreement will be renewed automatically each Subscription Period until either you or us explicitly cancel the Tracking Service in accordance with clause 12 of this Agreement or this Agreement otherwise comes to an end as set out in this Agreement.
8.3. The Customer will be sent an invoice for the applicable Subscription Fees on the first day of every month in advance for each Subscription Period. The invoice shall be paid in full on or before the Due Date. The Customer will receive a final invoice upon termination of the Agreement and the removal of the Transmission Unit (if hired). All Subscription Fees are payable in advance.
8.4. If the Customer pays for Subscription Fees by continuing credit card instalment payments, the Customer acknowledges that GPSTS is authorised to deduct all due payments on the Due Date.
8.5. If the Customer fails to pay an invoice 14 days after the Due Date, GPSTS may without prejudice to its other rights or remedies under this Agreement
8.5.1. charge the Customer a late payment fee corresponding to the costs incurred by GPSTS (including, without limitation, administrative and other costs) in recovering any payment not made by you on the Due Date; and/or
8.5.2. charge the Customer interest at the rate of 10% per annum calculated daily on the outstanding amount in addition to the outstanding amount; and/or
8.5.3. prohibit the Customer from having access to the Tracking Service and Transmission Services.
8.6. If the Customer fails to pay an invoice on or before 30 days after the Due Date, GPSTS may disconnect the Customer’s account and forward the account to debt collectors, with any charges that are incurred to be the responsibility of the Customer.
8.7. If the Customer fails to pay an invoice and if the Transmission Unit is hired and the undamaged Transmission Unit is not returned on or before 45 days after the Due Date, then the client shall be liable for the full and immediate payment of the Purchase Price (including GST) applicable to the Transmission Unit at the Due Date.
8.8. GPSTS will not be liable to the Customer for any actions taken by GPSTS pursuant to clause 8.5 and 8.6.
8.9. If a Customer disputes an invoice or there are invoices involving errors requiring remedy by GPSTS, the Customer shall provide GPSTS with a Dispute Notice pursuant to clause 18.1 within 10 days of the invoice date. Upon receipt of the Dispute Notice the dispute shall be resolved pursuant to clause 18 and GPSTS shall not enforce any of its other rights and remedies under this clause 8 until the dispute is settled. If the Dispute Notice is not served within the 10 day period, then the Customer waives any rights to dispute the invoice and the invoice shall be deemed a correct record of the contents therein.
8.10. If payment is made by direct debit or credit card and subsequently refunded or dishonoured, the Customer will be on charged all bank fees incurred by GPSTS together with an administration fee of an amount in the discretion of GPSTS of not more than $55 including GST.
8.11. Unless a Subscription Package states otherwise, if the Customer elects through the Website to receive updates or alerts via SMS, an SMS PAYG Fee will be charged to the Customer. The Customer may alternatively elect through the Order Form to instead pay an ongoing upfront monthly fee for the SMS Bulk Package. By selecting the SMS Bulk Package, the Customer agrees to pay the published SMS Bulk Package fee monthly in advance in lieu of paying a SMS PAYG Fee. SMS alerts sent over and above the SMS Bulk Package per month shall be on charged to the Customer at the SMS PAYG Fee rate.
8.12. Subject to the terms of the Agreement, the fees paid for each Subscription Period are non-refundable – there will be no refunds or credits for partial Subscription Periods (regardless of the length of Subscription Period), upgrade/downgrade refunds or account cancellations. If you are not in breach of this Agreement, and GPSTS elects to terminate the Tracking Service, we will refund to you any pre- paid fees relating to the portion of Subscription Period remaining as at the effective date of termination. Except as expressly stated in this clause 8.12 the Customer is not otherwise entitled to any refund if this Agreement terminates during a Subscription Period.
8.13. The prices payable for the Tracking Service may be quoted on the Website (or published in writing as part of the registration and activation process) and amended from time to time by GPSTS.
8.14. GPSTS may, at its absolute discretion, increase the applicable fees for each successive Subscription Period by an amount which reflects up to the current rate of inflation plus 5%. We reserve the right to change the fees for the Tracking Service and any connected extra services at any time, which will take effect in the next Subscription Period. Such notice may be provided at any time by posting the changes to the Website or by email to you.
8.15. Subscription Packages may be selected on the Order Form with associated Subscription Periods. Any combination of Subscription Packages must be approved by GPSTS in their absolute discretion.
9. Warranties Relating to Tracking Pack
9.1. GPSTS warrants to the Customer that:
9.1.1. it has full power and authority to license the Tracking Service under its Head Licence;
9.1.2. to the best of its knowledge and belief the Tracking Pack does not infringe any Intellectual Property Rights of a third party.
10. Guarantees, Warranties, Liability and Indemnification
10.1. To the extent permitted by law, if the Customer acquires or hires the Transmission Unit and Tracking System for business purposes, the Australian Consumer Law will not apply.
10.2. The Customer acknowledges that:
10.2.1. The Customer relies upon its own knowledge, skill and judgement in relation to the particular use or suitability of the Tracking Pack for the Customer’s purpose;
10.2.2. All warranties, descriptions, representations or conditions whether implied by the Sale of Goods Act 1895 (WA) or the Australian Consumer Law or otherwise or contained in any document not furnished by GPSTS are expressly excluded to the fullest extent permitted by law;
10.2.3. GPSTS will accept no liability for any damages or Losses arising from a consequence of any act, default or negligence on the part of GPSTS or of an employee, agent or contractor of GPSTS;
10.2.4. Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. If, and only if, the Australian Consumer Law applies, the Customer is entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable Loss . The Customer is also, in those circumstances, entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.
10.2.5. Subject to the provisions of clause 10.2.3 and 10.2.4, if GPSTS is nonetheless found to be liable at law, GPSTS’s liability under or in connection with the performance of these terms, whether in tort, contract, equity or on any other basis, shall be limited to the lesser of the price of the Tracking Pack complained of, the cost of repairing or replacing the Tracking Pack and the actual Loss suffered by the Customer;
10.2.6. Subject to clause 10.4, GPSTS shall not be liable to the Customer or any third party in contract, tort (including negligence) or on any other basis for:
10.2.6.1. any indirect or consequential Losses;
10.2.6.2. any loss of use, loss of profits, loss of anticipated savings; or
10.2.6.3. any third party claims suffered or incurred by the Customer.
10.3. Subject to clause 10.2, during the Warranty Period the Tracking Pack shall be warranted to be free from defect and any defective Tracking Pack shall be replaced or repaired (at the sole discretion of GPSTS), provided that any claim made under this clause shall be made in writing to GPSTS within the Warranty Period.
10.3.1. If an unaltered version of the Transmission Unit develops faults by reason of defective components, design or workmanship within the Warranty Period, and the Customer is not in breach of the terms of this Agreement, GPSTS will either repair or replace the Transmission Unit (or the affected component of the Transmission Unit) at no cost to the Customer. Any such replacement or repair will be the Customer’s sole remedy in respect of the supply of a defective Transmission Unit;
10.3.2. During the Warranty Period the Tracking Service will function in accordance with its specifications. GPSTS will provide all reasonable programming and remedial services to correct documented code errors which are caused by a defect in an unaltered version of the Tracking Service at no cost to the Customer, provided that the Customer is not in breach of any of the terms of this Agreement. Any such programming and remedial services will be the Customer’s sole remedy in respect of the supply of defective Tracking Service.
10.4. All warranties are based on the assumption that the Customer will deliver any faulty Transmission Unit to a GPSTS base. GPSTS base is: Level 11, Brookfield Place, 125 St Georges Terrace, Perth WA 6000.
10.5. The Customer shall at all times indemnify and hold GPSTS, its directors, officers, employees and agents, harmless from and against any costs (including reasonable legal costs on a solicitor and Customer basis), claims, demands, expenses, Losses or other consequences suffered by GPSTS in relation to the performance of the Customer’s obligations under this Agreement, and from any costs, claims, demands, expenses, Losses or other consequences suffered by GPSTS in relation to any breach by the Customer of this Agreement, or arising out of the negligence, breach of statutory duty, or wilful default of the Customer’s agents, employees or sub-contractors or of any other person for whose acts and omissions the Customer is vicariously liable and also against any action, claim or demand by the Customer’s employees, agents, or subcontractors, their personal representatives or dependants, or any Customers of the Customer.
10.6. Any call outs will be charged a call out fee.
10.7. The exclusions in this clause 10 apply for the benefit of (and shall be enforceable by):
10.7.2. GSM Providers;
10.7.3. all companies directly or indirectly owned, partly owned or controlled by any of the people listed above; and
10.7.4. all officers, employees, contractors and agents of all the people listed above.
10.8. If the Customer does not use an Authorised GPS Installer for the install or de-install of Hard Wired Transmission Units, then unless the Customer can prove to the satisfaction of GPSTS that the install or de-install of Hard Wired Transmission Units (as the case may be) has not attributed in any way to any alleged faults in the Tracking Pack, then the Customer shall not have the benefit of any warranties provided in this Agreement by GPSTS and such warranties are hereby expressly excluded.
10.9. GPSTS reserves the right to at any time change the look and feel of the Website and the way the Customer Data is displayed on the Tracking Service.
10.10. GPSTS provides no warranty as to uptime and availability of the Tracking Services. Without limiting the generality of the foregoing sentence, the Customer acknowledges that Tracking Services rely on location information such as GPS/GLONASS and depend on the Transmission Unit’s ability to acquire satellite signals (typically not available indoors) and network coverage. Network coverage and satellite signals are dependent on a number of factors not within the control of GPSTS including weather, topographical changes, changes to and support of network cellular technologies, the functionality of various satellites, cell towers, clouds and other factors. The Customer expressly agrees to indemnify and hold harmless GPSTS with respect to any Loss that is attributable to the Transmission Unit not working, malfunctioning or failing attributable to any matter described in this clause 10.10.
10.11. GPSTS will not be liable to the Customer for any failure by GPSTS to deliver the Tracking Packs or Tracking Services, or any interruption to the Tracking Services, where such failure or interruption is attributable to any act, matter or thing outside of the control of GPSTS including but not limited to fire, flood, tempest and other acts of adverse weather, terrorism, changes in government, strikes, disputes with licensors under the Head Licence, failure of any service provider to GPSTS to provide the service; acts of god, acts of war, telecommunications failure, server failure, electricity outages and other events of force majeure as that term is usually defined.
11. Intellectual Property and Confidentiality
11.1. The Customer acknowledges that the Intellectual Property Rights in the Tracking Pack and the Documentation are owned by GPSTS or its licensors under Head Licences.
11.2. The Customer acknowledges that this Agreement does not transfer to the Customer any Intellectual Property Rights in the Documentation or the Tracking Pack (other than the limited rights granted in accordance with clause 2.3).
11.3. The Customer must keep their Login Information secure and confidential. Unless expressly permitted by this Agreement, or otherwise authorised in writing, you must not share your Login Information with any person.
11.4. In using the Tracking Pack, the Customer must not engage or attempt to engage in any activities that:
11.4.1. use any Products other than in conjunction with the Tracking Service, or copy, modify, reverse engineer or decompile the Transmission Units, Products or any software used or accessed or accessible via the Tracking Service or any part of the same (save to the extent expressly permitted by law) nor allow any other third party to do the same;
11.4.2. violate the rights of any third party (including, without limitation abusing, stalking, threatening or otherwise, infringement of copyright, trademark, or other intellectual property right, misappropriation of trade secrets, confidential information, electronic fraud, invasion of privacy);
11.4.3. interfere with or disrupt any other third parties (including other users of the Tracking Service), equipment, functions, features, the Products, or Tracking Service;
11.4.4. introduce or allow the introduction, transmission, distribution or uploading of any, virus, worm, Trojan horse, zombie, keylogger, time bomb, cancelbots, Easter eggs, spyware, mail bombing, flashing, spamming, flooding, or other potentially harmful programs, materials, information or malicious code into the Products or Tracking Service or any related network;
11.4.5. use any robot, spider, site search/retrieval application or other manual or automatic device or process to retrieve, index, “data mine” or in any way reproduce or circumvent the navigational structure or presentation of the Tracking Service, or its contents;
11.4.6. involve the unauthorised use of any machine or network, denial of service attacks, falsification of header information or user identification information, monitoring or scanning the networks of others;
11.4.7. gain unauthorised access to the Tracking Pack;
11.4.8. disrupt, impair, alter or otherwise interfere with the functions, features or content of the Tracking Pack;
11.4.9. restrict or inhibit any other visitor from using the Tracking Service, including, without limitation, by means of “hacking” or defacing a portion of the Tracking Service or Website;
11.4.10. modify, adapt, decompile, reverse engineer, disassemble or otherwise reduce the Tracking Service to a human-perceivable form;
11.4.11. harvest or collect information about users or members of the Tracking Service without their express written consent;
11.4.12. transfer, assign or otherwise deal in the Tracking Pack, Tracking Service and Documentation or the Customer’s rights under this Agreement.
11.5. The Customer must indemnify and keep indemnified GPSTS against any claims from the licensors under any Head Licence relating to or arising from the failure of the Customer to comply with any provision of this clause 11.
12. Suspension and Termination
12.1. GPSTS may suspend the use of the Tracking Service, any Products or the Customer’s access to location, tracking or monitoring information via the Products at any time without notice if:
12.1.1. the Platform requires maintenance or upgrading;
12.1.2. we have a reasonable belief that the Tracking Pack is being used unlawfully or contrary to any Act, law or regulation;
12.1.3. as a result of an event outside our reasonable control;
12.1.4. the Customer is in breach of a term of this Agreement and that breach continues for a period of 7 days without remedy.
12.2. This Agreement commences on the Effective Date and shall expire when terminated under the terms of this Agreement. GPSTS may terminate this Agreement and any licence created under it and cancel any Tracking Service provided or any access to the Platform with immediate effect and without notice if:
12.2.1. the Customer breaches any term or provision of this Agreement, including but not limited to a failure to pay any charges or Subscription Fee, and does not remedy the breach within 14 days of receiving a Dispute Notice requiring the breach to be remedied; or
12.2.2. GPSTS believes the Tracking Pack to be at risk for whatever reason including, but not limited to, the manner of use of the Tracking Pack or that the Customer is unable to, or might be unable to, pay any hire charge or Purchase Price; or
12.2.3. the Customer suffers an Insolvency Event; or
12.2.4. the Customer fails to maintain the Transmission Unit; or
12.2.5. the Transmission Services are suspended for any reason whatsoever;
12.2.6. the events leading to suspension under clause 12.1, continue for more than 14 days;
12.2.7. the Head Licence comes to an end.
12.3. In all other circumstances:
12.3.1. The Customer may terminate this Agreement by giving written notice of termination to GPSTS more than 30 days before the end of the current Subscription Period. The Agreement will terminate at the end of the current Subscription Period; or
12.3.2. GPSTS may terminate this Agreement by giving at least 30 days written notice of termination to the Customer. On termination of the Agreement we will refund to you any pre-paid fees relating to the portion of Subscription Period remaining as at the effective date of termination.
12.4. Termination of the Agreement by GPSTS is without prejudice to any rights that GPSTS may have under the Agreement in law or equity.
13. Consequences of Termination of Agreement
13.1. Upon termination of this Agreement, the Customer will:
13.1.1. immediately cease to use the Tracking Service and all Documentation and deliver to GPSTS all copies of the Documentation in the Customer’s possession or control;
13.1.2. if the Tracking Pack is hired, use best endeavours to grant GPSTS, or to procure that GPSTS is granted, an irrevocable right and authority to enter, at any time, onto any place or into any Asset where any part of the Tracking Pack is situated or thought to be situated to remove the Tracking Pack, and that the Authorised GPSTS Installer is acting as GPSTS’s agent in the removal of the Transmission Unit;
13.1.3. if the Tracking Pack is hired, return the Tracking Pack to GPSTS’s control ensuring that the de-
Installation of the Transmission Unit is performed by an Authorised GPSTS Installer pursuant to clause 3.7; and
13.1.4. pay any and all sums due and/or payable to the other party under this Agreement that become due for payment before or after termination.
13.2. Within 30 days of termination, the Customer must certify to GPSTS in writing that it has fully complied with its obligations under clause 13.1.
13.3. The Customer shall continue to be charged the normal Subscription Fees after the termination of this Agreement until clause 13.2 is satisfied.
13.4. If GPSTS establishes that the Customer had not in fact complied with all obligations under clause 13.1 when the letter was received, the Customer will be charged backdated Subscription Fees from the date that the letter was received until the Customer complies with all unresolved obligations. Interest will apply to all backdated Subscription Fees at the rate set out in clause 8.5.2.
13.5. If the Tracking Pack is hired and the undamaged Transmission Unit is not returned on termination, then the Customer shall be liable for the full and immediate payment of the Purchase Price (including GST) and interest shall accrue on the amount due and payable at the rate set out in clause 8.5.2.
13.6. Upon termination of this Agreement, the licence to use the Intellectual Property Rights granted by GPSTS to the Customer, the licence to use the Tracking Pack, and access to the Transmission Services shall be deemed to be immediately revoked without any further notice. On termination of this Agreement, the licence granted pursuant to clause 2.3.2 will automatically cease and the Customer acknowledges that no Tracking Services will be provided by GPSTS or the GSM Provider.
13.7. GPSTS will not be liable to the Customer or any other person for any Loss suffered or liability incurred arising from the termination of the Agreement or the repossession of any part of the Tracking Pack or any actions taken by GPSTS pursuant to clause 12 or 13.
13.8. For the avoidance of doubt, the Customer indemnifies GPSTS against any costs, claims, damage, expense or liability suffered or incurred by GPSTS arising directly or indirectly from GPSTS exercising its rights under this clause, clause 12 or otherwise acting to recover any part of the Tracking Pack hired or money payable by the Customer. This includes any damage to the Asset caused by GPSTS’s attempts to recover the Tracking Pack (including causing the Asset to be shutdown).
13.9. Termination of this Agreement will not affect any provisions of this Agreement which are intended to continue after termination (including, without limitation, clauses 4, 7, 8, 9, 10, 11 and 15.3).
14. Sale of Tracking Pack
14.1. Where a Tracking Pack is sold to the Customer:
14.1.1. legal and beneficial ownership of the Tracking Pack will remain with GPSTS pursuant to clause 4.1; and
14.1.2. until legal and beneficial ownership of the Tracking Pack has passed to the Customer, the Customer will not disassemble or make any structural alterations to the Tracking Pack without the prior written consent of GPSTS.
15. Hire of Tracking Pack
15.1. If the Tracking Pack is hired to the Customer, then the provisions of this clause 15 will apply together with any other provisions in this Agreement which relate to hired goods. A Tracking Pack will be deemed to be hired if indicated as such in the Order Form.
15.2. In the case of hire, GPSTS may obtain and disclose personal information about the Customer to and from anyone else and, if GPSTS considers it relevant to assess the Customer’s application for credit or to collect overdue payments in respect of that credit, the Customer agrees to GPSTS obtaining from a credit reporter and/or a credit provider, a credit report containing personal information about the Customer and/or the director in relation to credit provided by GPSTS. Such information will be held at the address of GPSTS and the Customer may access and correct that information by contacting GPSTS. GPSTS warrants that personal information about the Customer shall only be disclosed to GPSTS’s debt collectors from time to time to aid in the collection of any money owing to GPSTS by the Customer.
15.3. In the case of damage to the Transmission Unit, however caused, the Customer shall be responsible for the full costs of all repairs to restore the Transmission Unit to the condition it was in at the time of hire. The Customer’s maximum liability under this clause shall be the value of the Transmission Unit.
15.4. In the case of loss or irreparable damage to the Transmission Unit, however caused, the Customer shall be responsible for the full cost to GPSTS of replacing the Transmission Unit.
15.5. The Customer shall be responsible for any loss of revenue suffered by GPSTS due to the unavailability of the Transmission Unit for sale or hire due to loss or damage to the Transmission Unit.
15.6. Where a Tracking Pack is hired to the Customer, the Customer shall:
15.6.1. not part with the possession of the Tracking Pack and shall not sublet, or sell, or attempt to alienate the Tracking Pack in any way, or grant security interest in, or deal with the Tracking Pack in any way that may be prejudicial to GPSTS other than installing the Transmission Unit in Asset(s);
15.6.2. be liable for any loss or damage to any Transmission Unit, including but not limited to, damage or loss caused by fire, storm, collision, accident, theft or burglary, or arising from misuse, abuse, mysterious disappearance or wrongful conversion, any breach of the Agreement, violation of any laws, exposure to any corrosive substances (including caustic, cyanide, acids, salt water), theft where not reasonably locked and secured, transportation (except where transported by GPSTS), or negligence by the Customer and shall pay to GPSTS the cost of making good the repair to the Transmission Unit or the cost of replacing the Transmission Unit, whichever is the lesser;
15.6.3. take proper care of and use the Tracking Pack in a manner or to such an extent that a reasonable Customer would, and according to the Documentation and any instructions given by GPSTS or the GSM Provider;
15.6.4. not carry out repairs, maintenance, adjustments, alterations or additions to the Transmission Unit without the express consent of GPSTS;
15.6.5. not remove any signage of the Transmission Unit without the prior written consent of GPSTS;
15.6.6. immediately notify GPSTS, by telephone or email, if the Transmission Unit is damaged or is otherwise in need of maintenance or repair;
15.6.7. on request by GPSTS advise of the location of any hired Transmission Unit;
15.6.8. give GPSTS irrevocable licence to enter any premises within the Customer’s control for the purposes of inspecting, repairing, testing or removing the Transmission Unit; and
15.6.9. not attempt to remove a Hard Wired Transmission Unit.
15.7. The hire period for the Tracking Pack shall start when GPSTS gives possession of the Tracking Pack to the Customer, and shall continue until the earlier of:
15.7.1. the date the Customer has returned the Tracking Pack into the possession of GPSTS if this Agreement or the Hire Purchase Arrangement is terminated for any reason;
15.7.2. the date that ownership of the Products passes to the Customer pursuant to clause 15.8.3.
15.8. Whenever the Customer elects a hire option on the Order Form, the Customer will be deemed to have entered a hire to purchase arrangement with GPSTS if indicated on the Order Form (“Hire Purchase Arrangement”). The following terms will apply to the Hire Purchase Arrangement in addition to the terms set out in clauses 15.1 to 15.7:
15.8.1. The term of the Hire Purchase Arrangement shall be 24 months from delivery (“Hire Purchase Term”);
15.8.2. During the Hire Purchase Term the Customer must pay the Hire Purchase Fees as follows:
220.127.116.11. the Customer must prepay 3 months of the Hire Purchase Fees in advance at the time the Order Form is submitted. The fees paid in advance are non-refundable;
18.104.22.168. thereafter, the Customer must pay the balance of the Hire Purchase Fees during the ,Hire Purchase Term monthly in advance.
15.8.3. At the end of the Hire Purchase Term, if the Customer has paid all the Hire Purchase Fees and not otherwise defaulted under the terms of this Agreement, then ownership of the Products the subject of the Hire Purchase Arrangement shall vest in the Customer. Ownership of the Products otherwise remains with GPSTS at all times. The Customer will then be deemed to have entered a new Subscription agreement with GPSTS until terminated in accordance with this Agreement.
15.8.4. Risk in the Products the subject of the Hire Purchase Arrangement shall pass to the Customer on delivery.
15.8.5. The Hire Purchase Arrangement may be terminated in the same manner this Agreement may be terminated.
15.8.6. If the Hire Purchase Arrangement is terminated at any time prior to expiration of the Hire Purchase Period, then the Customer will be liable for the cost of the de-install of the Products (which must be carried out by an Authorised GPS Installer), the return of the Products to GPSTS and 50% of the portion of the Hire Purchase Fees that relate to the Subscription Fees that would have been payable by the Customer for the balance of the Hire Purchase Period had the Hire Purchase Arrangement not been terminated early.
15.8.7. The Hire Purchase Fees include the Transmission Units and Subscription Fees only. Additional costs apply for all other Products or services supplied to the Customer including but not limited to installation services. Such additional costs must, unless otherwise agreed in writing by the Parties, be paid in full at the time the Order is submitted.
16. Customer Data
16.1. The Customer acknowledges that GPSTS may generate, and/or require use of existing Customer Data. The Customer grants GPSTS the right to use, copy, modify, store and disclose the Customer Data to the extent necessary so that they can supply the Support Service and Tracking Services, and any enhancements or modifications to the same to the Customer. GPSTS will not make this information available to any current or future competitors but will make the information available to Head Licensors and Authorised GPSTS Installers to enable those person to deliver certain components of the goods and services on behalf of GPSTS.
16.2. The Customer will, to the extent that the Customer Data contains personal information (as defined in the Privacy Act 1988) about an individual (including an employee or contractor of the Customer), procure from that individual all necessary consents required by law to enable that information to be lawfully used by GPSTS.
16.3. The Customer grants to GPSTS a non-exclusive, royalty-free, perpetual, irrevocable, fully paid-up, worldwide license, with the right to sublicense, to use, modify, reproduce, adapt, communicate, display, perform, anonymise and distribute Customer Data and user statistical information such as usage, traffic patterns, or user activities for any purpose, provided that such Customer Data will be (a) de-identified such that no person or entity (including but not limited to you) can be identified, and (b) combined with the data of other users or additional data sources.
16.4. In addition to any other indemnity provided in this Agreement in favour of GPSTS and without derogating from the generality of such indemnities, the Customer indemnifies GPSTS (and will continue to indemnify GPSTS notwithstanding termination or expiration of this Agreement for all Losses which GPSTS may suffer or incur (whether in relation to the Privacy Act 1988 or otherwise) by reason of the Customer’s failure to comply with clause 16.
16.5. The Customer acknowledges that the Tracking Service utilises cloud based technology and accordingly the use of same by the Customer has all the risks associated with cloud based technology including the transmission of Customer Data across borders. GPSTS shall not be liable to the Customer for any inadvertent disclosure of Customer Data attributable to the use of the cloud based technology howsoever arising.
17.2. GPSTS does not and will not sell or deal in personal or customer information. We may, however, use non-identifiable information without any reference to your name or your information to create marketing statistics, identify user demands and to assist in meeting customer needs generally.
18. Dispute Resolution
18.1. A party may notify the other parties (“Dispute Notice”) if that party considers that a dispute exists between the parties about the construction or performance of this Agreement (including the determination of any matter to be agreed or any document to be completed under this Agreement) (“Dispute”). The Dispute Notice shall briefly describe the Dispute, and state that it is given under this clause 18.1.
18.2. As soon as reasonably practicable after the Dispute Notice has been given, the parties shall co- operate and negotiate in good faith in an endeavour to resolve the Dispute expeditiously. A party may refer the Dispute to mediation under this Agreement if the parties are unable to resolve the Dispute within 5 Business Days after the date on which the Dispute Notice is delivered.
18.3. Mediation under this Agreement shall be governed in all respects by the Resolution Institute’s Mediation Rules. The mediation shall be conducted in Western Australia by a mediator and for a fee determined by the parties or (failing Agreement within 5 Business Days after referral to mediation) the Chairperson for the time being of the Resolution Institute (ACN 008 651 232). Subject to anything to the contrary in this Agreement, the parties shall act in good faith in the mediation in an endeavour to resolve the Dispute expeditiously.
18.4. For the avoidance of doubt, the existence of a Dispute shall not relieve a party from the requirement to perform its obligations under this Agreement generally and, notwithstanding the Dispute, each party shall continue to perform its obligations under this Agreement to the maximum extent possible (having regard to the nature of the Dispute), including the completion of any Agreement as soon as practicable even where the date for completion of the Agreement has passed.
18.5. Where the Dispute is not resolved pursuant to clauses 18.2 and 18.3, any party may refer the Dispute to arbitration by giving the other parties notice in writing stating the subject matter of the Dispute and the first party’s desire to have the matter referred to arbitration. The arbitration shall also be held in Western Australia.
18.6. If the Dispute is referred to arbitration, then it shall be finally resolved in accordance with the Commercial Arbitration Act 2012 (WA) and the express provisions of this clause 16 shall prevail in the event of any inconsistency with that Act, to the extent permitted by law.
19.1. Any notice given under this Agreement will be in writing delivered to the relevant party or sent by post or email transmission at such address or number as may be notified in writing by each party to the other from time to time. If delivered by hand, any such notice will be deemed received at the time when the same is handed to or left at the address of the party to be served. If served by post a notice will be deemed received five working days (not being Saturday, Sunday or a public holiday) after the day of posting. If sent by email, a notice will be deemed received on the date and time at which it enters the addressee’s information system. The Customer must notify GPSTS immediately of any change to the Customer’s address for service.
19.2. If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions will remain in force and effect.
19.3. If GPSTS waives any default or breach of this Agreement, this will not constitute a waiver of any other or subsequent default or breach. No waiver will be effective unless made in writing.
19.4. The Customer may not assign, sub-licence or transfer its rights and obligations under this Agreement without the prior written consent of GPSTS.
19.5. Neither party will be liable for any delay or failure in the performance of its obligations under this Agreement if such delay or failure is due to a force majeure event, being any cause outside its reasonable control including but not limited to acts of God, natural disaster, riot, malicious damage, fire or acts of any governmental authority. This clause 19.5 does not apply to any obligation to pay money for liabilities incurred prior to the force majeure event.
19.6. This Agreement is governed by the laws of Western Australia and the parties agree to submit to the exclusive jurisdiction of the Courts of Western Australia.
19.7. This Agreement when read in conjunction with the Order Form(s) contains the entire agreement between the Parties and supersedes any prior agreement between the Parties whether oral or in writing.
20. Special Conditions and Conflict
20.1. The parties may agree to vary the terms of this Agreement or add additional terms by including same as special conditions on the Order Form.
20.2. To the extent of any inconsistency between documents between the Customer and GPSTS the following order of priority shall apply:
20.2.1. any special condition in the Order Form (provided the Special Condition in the Order Form has been expressly agreed to by GPSTS); then
20.2.2. the provisions of this Agreement; then
20.2.3. anything else in writing between the parties from time to time.
21.1. These terms can be amended from time to time by GPSTS providing not less than 35 days notice of the proposed amendment to the Customer. On expiration of the notice period, the amendment shall be thenceforth incorporated into the Agreement. GPSTS may provide the said notice to the Customer, and the Customer will be deemed to have received the notice, if GPSTS publishes the notice on their website or otherwise communicates the notice to you by email or post.
21.2. Except as provided in clause 21.1, this Agreement may only be amended by written agreement of the Parties.