Terms and Conditions

1. Definitions:

“ACL” means The Australian Consumer Law as set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth).

“Confidential Information” means all information disclosed by a party for or in connection with the Permitted Purpose, including:

(a) Information which is designated or indicated as being the proprietary or confidential information of the disclosing party or its related entities.

(b) Information derived partly or wholly from the information of the disclosing party including any calculation, opinion, conclusion, summary, computer modelling or other materials:

(c) Know-how, formulae, data, specifications, drawings, trade secrets and other information which is capable of protection at law or in equity as confidential information; and

(d) Information on the particular services either party supplies to its customers whether disclosed:

I. Orally, in writing or in electronic or machine readable form;

II. Before, on or after the date of this Agreement; or as a result of discussions between the parties concerning or arising out of the Permitted Purpose.

Commencement Date” means the date of signing of this agreement. “Customer Details” are as defined on the application form.

Permitted Purpose” means the purpose(s) determined by the party disclosing the information, or such other purpose(s) as may be agreed between the parties

“On Track Fleet Management system” means the third party applications (Web or Application) available to customers to monitor and communicate with the active trackers on the system. The supplier of the application is subject to change at any time.

“PPSA” means the Personal Property Securities Act 2009 (Cth).

“Products” is defined as any hardware, software or services provided to the Customer by On Track GPS.

“Installation Worksheet” means the worksheet provided with products to be installed in vehicles

In this Agreement, words importing the singular include the plural and vice versa, headings will be ignored in construing this Agreement. If any party is comprised of more than one person, those persons’ obligations are joint and several, a reference to a party includes a reference to that party’s legal personal representatives, successors and permitted assigns, reference to a person’s include references to corporations and other bodies and entities, and references to statutes include all statutes amending, consolidating or replacing such statutes and includes any subordinated legislation issued under them.

2. Term:

This agreement commences on the commencement date and will continue as per the term of the agreement above, at the end of the term the term will be on a month by month basis unless otherwise agreed. If the product is leased, at the end of the term the Customer is required to pay any residual amounts owing and can choose to either upgrade hardware and enter into a new term, or enter into a new term with existing hardware.

3. Early Termination:

If a term is entered into then the Customer is responsible for all payments, including hardware and fleet management fees for the period of the term, whether the items are active or disposed.

4. Products and Pricing:
Products and Pricing are as described on the quote document provided to the Customer. Products & Pricing have been provided on the basis of the Terms and Conditions as described below.

5. Products and Delivery:
(a) Any delivery times made known to the Customer are estimates only. To the full extent permitted by the ACL and other applicable laws, On Track GPS will not be liable for any loss, damage, or delay occasioned to the Customer or any other person arising from such late or non-delivery.
(b) The Customer acknowledges that all Products are sold delivered duty paid unless otherwise stated on the invoice.

6. Retention of Title:
(a) Notwithstanding anything to the contrary contained in this Agreement, until such time as the whole of the purchase price for the Products (and associated costs, duties and charges invoiced for the Products – (“Invoiced Cost”) have been received in clear funds by On Track GPS; full legal and equitable title in the Products (not including services) and ownership of the Products will be retained by On Track GPS;the Customer must hold the Products as fiduciary Bailee and agent for On Track GPS; and the Customer must not sell or otherwise dispose of the Products (except to the extent permitted under this Agreement).
(b) Until such time as the Invoiced Cost has been paid in full, in addition to its rights under the PPSA, On Track GPS may enter the Customer’s premises (or the premises of any associated person where the Products are located) without liability for trespass or any resulting damage and retake possession of the Products. On Track GPS may resell any Products that have been repossessed.
(c) If the Products are resold by the Customer, the Customer must hold such part of the proceeds of sale as represents the Invoiced Cost in a separate identifiable account as On Track GPS’ beneficial property and pay such amount to On Track GPS on request.
(d) Despite clauses 6(a) to 6(c) above, On Track GPS will be entitled to maintain an action against the Customer for the Invoiced Cost.
(e) The Customer must provide On Track GPS with any financial or other information relating to the financial condition, business, assets and affairs of the Customer as and when reasonably requested by On Track GPS for the purposes of enabling On Track GPS to determine whether On Track GPS’ right to receive moneys from the Customer under these terms and conditions is prejudiced for any reason.
(f) Risk in the Products shall pass to the Customer on delivery.

7. GST and Taxes:
Unless otherwise specified, all prices quoted are exclusive of product and services tax (“GST”) and other taxes. Except to the extent that any GST or other taxes have already been specifically included in the price, the Customer must pay the amount of any applicable GST or other taxes at the time of payment for the Products.

8. Warranties and Limitation of Liability

(a) Where the system operation is dependent on third party telecommunications infrastructure, landline, or radio communications service, to the full extent permitted by the ACL and other applicable laws, On Track GPS shall not be responsible for system or product performance due to the unavailability of these telecommunications services. Similarly, to the full extent permitted by the ACL and other applicable laws, On Track GPS shall not be responsible for the reliable operation of any equipment based on any form of radio technology where that equipment is operated in a fringe radio coverage area where the reliability and integrity of the radio signals may be unacceptable to On Track GPS.
(b) To the full extent permitted by the ACL and other applicable laws, any system or software performance is not warranted against failure, interruption, unavailability, or incorrect operation caused by computer malfunction or insufficient hard disk capacity when the Customer supplies the computer hardware.
(c) Where the Products include software, to the full extent permitted by the ACL and other applicable laws, On Track GPS does not warrant that:

1. The software will run error-free, will run uninterruptedly or will meet the Customer’s data processing requirements.
2. The software will not contain any virus or other harmful code or device; or Installation or attempted installation of the software will not cause corruption to other programs or files stored on computer hardware or to any network.

(d) To the full extent permitted by the ACL and other applicable laws:

On Track GPS excludes all express and implied terms, warranties, conditions and guarantees (other than the ones set out in this Agreement);

in any event, On Track GPS’ liability under or in relation to this Agreement or the supply of the Products, is limited, at the option of On Track GPS , to:

In the case of product, to one or more of the following (as On Track GPS determines): the repair of the equipment, the replacement of the equipment or the supply of equivalent equipment, or paying the cost of replacing the equipment or of acquiring equivalent equipment, or paying the cost of having the equipment repaired; or

In the case of services, to one or more of the following (as On Track GPS determines): the supplying of those services again or paying the cost of having the services supplied again.

For the avoidance of doubt, nothing in this clause 8 is intended to exclude, restrict or modify any rights or remedies which the Customer may have under the ACL or any other applicable law which cannot be excluded, restricted or modified.
(e) To the full extent permitted by the ACL and other applicable laws, On Track GPS is not liable in contract, tort including negligence), in equity, by operation of statute (to the extent liability may be excluded by law) or otherwise for any kind of indirect or consequential loss or damage, loss of opportunity, loss of revenue, loss of profit or anticipated profit, loss of contracts, loss of goodwill or loss arising from business interruption arising out of or in connection with this Agreement incurred or suffered by the Customer or any other person.

You agree to defend, indemnify, and hold us harmless, including our subsidiaries, affiliates, and our respective officers, agents, partners and employees, from and against any loss, damage, liability, claim or demand, including reasonable attorneys’ fees and expenses, made by any third party due to or arising out of

1. use of the services, 2. breach of these legal terms,

3. Any breach of your representations and warranties set forth in these legal terms,

4. Your violation of the rights of the third party, including but not limited to intellectual property rights,

5. Any overt harmful act toward any other user of the services with whom you connected via the services. Notwithstanding the foregoing, we reserve the right, at your expense, to assume the exclusive defence and control of any matter for which you are required to indemnify us, and you agree to cooperate at your expense, with our defence of such claims. We will use reasonable efforts to notify you of any such claim, action proceeding which is subject to this indemnification upon becoming aware of it

9. Termination:

A party (“first party”) may terminate this Agreement with immediate effect by giving notice to the other party if:

that other party breaches any payment obligation under this Agreement capable of remedy and fails to remedy the breach within 7 days after receiving notice from the first party requiring that other party to do so;

that other party breaches any other material term of this Agreement capable of remedy and fails to remedy the breach within 30 days after receiving notice requiring it to do so;

that other party enters into, or any steps are taken to have the other party enter into, liquidation, provisional liquidation, receivership, receivership and management, administration, bankruptcy or any arrangement, reconstruction or composition with that other party’s creditors or any of them, or a controller is appointed with respect to any of that other party’s assets, that other party becomes unable to pay its debts to any person as they become due or that other party otherwise becomes insolvent.

A party (“first party”) will notify the other party immediately if:

• The first party disposes of the whole or any part of its assets, operations or business other than in the normal course of business (other than a voluntary liquidation for the purpose of amalgamation or reconstruction if the new company assumes all of the first party’s obligations under this Agreement);
• Any step is taken to enter into any arrangement between the first party and its creditors.
• The first party ceases to be able to pay its debts as they become due.
• The first party ceases to carry on business or any step is taken by a mortgagee to enter into possession or dispose of the who
• or any part of the first party’s assets or business.
• Any step is taken to appoint a receiver, a receiver and manager, a trustee in bankruptcy, a liquidator, a provisional liquidator, an administrator or other like person of the whole or any party of the first party’s assets or business; or any step is taken against it by any government, government body or regulator for any unlawful reduction in its assets or the funds under its control.

Promptly after termination:

On Track GPS will return to the Customer, at the Customer’s expense, any of the Customer’s freight or property in On Track GPS’ or its subcontractors’ possession or control.

The Customer will pay On Track GPS for all Products supplied to the Customer up to and on termination.

If there is a Term for this Agreement and the Agreement has been terminated early for whatsoever reason, the Customer will pay On Track GPS any outstanding Payments, Fleet Management System Fees and Residual Fees up until the end of the term stated in this agreement.

Each party will return to the other party all Confidential Information of that other party in material form (including without limitation, those parts of all notes and other records of the first party containing Confidential Information of the other party) in its possession or control.

After termination of this Agreement a party will not use, disclose, record, sell or otherwise transfer any Confidential Information of the other party.

Termination of this Agreement is without prejudice to any remedies available to the party terminating and any rights or obligations of the parties that accrued prior to the time of termination (except as otherwise provided under this Agreement).

10. Personal Property Securities Act:

The Customer must, at its cost, do or cause to be done anything (such as obtaining consents, completing, signing and producing documents and supplying information) which On Track GPS requests and considers necessary or desirable for the purposes of:

Ensuring that each security interest provided by this Agreement is enforceable, attached, perfected, protected and otherwise effective;

Enabling On Track GPS to apply for any registration, or give any notification, in connection with each such security interest so that that security interest has the priority required by On Track GPS Fleet Solutions; and

Enabling On Track GPS to exercise rights in connection with each such security interest.

The Customer acknowledges and agrees that On Track GPS may register one or more financing statements in relation to any security interest provided for by this Agreement. If permitted by the PPSA, the Customer waives its right to receive notice of any verification statement relating to the registration of any such financing statement or any related financing change statement:

To the extent that Chapter 4 of the PPSA would otherwise apply, the Customer and On Track GPS agrees that the following provisions of the PPSA do not apply:

To the extent that section 115(1) of the PPSA allows them to be excluded: sections 95, 118, 121(4), 125, 129(2) and (3), 130, 132(3)(d), 132(4), 135, 138B(4), 142 and 143; and

In addition, to the extent that section 115(7) of the PPSA allows them to be excluded: sections 127, 129(2) and (3), 132, 134(2), 135, 136(3), 136(4), 136(5) and 137.

The Customer agrees that at any time after any security interest provided for by this Agreement has become enforceable, On Track GPS may delay disposing of, or taking action to retain, the whole or part of the relevant property to the extent permitted by law.

Unless agreed to by On Track GPS in writing, the Customer acknowledges and agrees that On Track GPS has not agreed to subordinate any security interest provided for by this Agreement in favour of any third party.

Subject to section 275(7) of the PPSA, neither the Customer nor On Track GPS may disclose information of the kind referred to in section 275(1) of the PPSA, nor is On Track GPS not required to respond to a request for information made in accordance with section 275(1) of the PPSA, unless otherwise agreed in writing.

For the purposes of this Agreement, terms defined in the PPSA have the same meaning in this Agreement

11. General:

(a) The customer agrees to the Terms and Conditions for the use of the On Track Fleet Management System, which shall apply to this Agreement as if set out in full in this document

(b) To the full extent permitted by law,On Track GPS will not be liable for any delay or failure to perform its obligations under this Agreement to the extent that such delay or failure is due to any cause beyond the reasonable control of On Track GPS.

(c) This Agreement supersedes and replaces any arrangements, representations, understanding or agreements made or existing between On Track GPS and the Customer in relation to the subject matter of this Agreement and shall (except as otherwise may be agreed in writing) constitute the entire agreement relating to the supply of Products by On Track GPS to the Customer.

(d) This Agreement will be construed in accordance with the laws of New South Wales, Australia.

(e) The Customer must not assign or otherwise transfer or attempt to assign any right or obligation under this Agreement without On Track GPS’ prior written consent.

(f) On Track GPS reserves the right to vary this Agreement at any time. It is the Customer’s responsibility to check the terms and conditions.

(g) This Agreement binds the parties and their respective legal personal representatives, successors, and permitted assign.  

Warranty Terms & Conditions

1. Welcome

1.1 The warranties in these warranty terms and conditions are given by On Track GPS (“we”, “us” or “our”).
1.2 The benefits to the consumer (“you”) given by the warranties are in addition to your other rights and remedies under a law in relation to the product to which the relevant warranty relates. These warranty terms and conditions should not be read as excluding, restricting or modifying your rights and remedies under statute, such as the Competition and Consumer Act 2010 (Cth).
1.3 Our products come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and for compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the product repaired or replaced if the products fail to be of acceptable quality and the failure does not amount to a major failure.

2. Coverage

Our warranties cover the Products, but do not cover and expressly exclude any software and services (if any) supplied to you as part of or with the supply of the Products (hereafter, the covered part of the Product is referred to as “Covered Component”).

3.  Warranties, Warranty Periods and Remedies

3.1    Subject to Clause 5 of these warranty terms and conditions, our warranties cover against defects in materials and workmanship in the Covered Component for the relevant warranty period(s) set out in paragraph 3.2 below and in the table below. If a defect in materials or workmanship occurs in the Covered Component within a warranty period, we will provide you with the remedy applicable to that warranty period, as set out in the remedy section of the table below.

3.2 The warranty period for a Covered Component will start from the date of installation as recorded against the work sheet but will be void until we receive full payment for the relevant Product of which the Covered Component is part of or supplied with (“Relevant Product”).

If we receive full payment, we will provide you with:

3.3 An installation warranty period of 90 days for the Covered Component of the Relevant Product (“Installation Warranty Period”) starting from the date of installation and we will provide you with our Standard Warranty Period applicable to the covered component of the Relevant Product.

3.4 Standard Warranty Period

On Track GPS will provide hardware only warranty for the period of the subscription service. A service cost per warranty repair will apply after the 90 days installation warranty period.

3.5 It is a condition of all specified warranties that Installation Worksheets are completed, signed by the customer and the installer for the warranty to be valid, except where On Track GPS is the installer.

4. Procedure to make a warranty claim

4.1 To claim under our warranty, please lodge a claim by contacting us and provide us with all relevant details including serial numbers of product or vehicle details of product installed into vehicle.

4.2 A Case will be raised and you will be given a Return Authorisation Number which you must quote on all returned products.

4.3 Unless these warranty terms and conditions expressly state otherwise, you will be responsible for all costs and expenses in connection with claiming on our warranty.

4.4 The title in all Covered Components replaced pass to us and must be returned to us, and we may keep or dispose it as we see fit.

5. General exceptions 

The warranties do not cover:

5.1 Any breakdown, defect, damage, fault and/or failure of a Covered Component, as a result of or in connection with any improper modification, installation, adjustment or repair.

5.2 Any modification, installation, adjustment or repair which are not authorised by us.

5.3 Any misuse, improper use, abuse or use for an intended purpose.

5.4 Any exposure to environmental conditions beyond what we intended.

5.5 Any failure to follow precisely our manual, installation and/or operation instructions.

5.6 Any accident, deliberate damage or damage resulting from neglect, wilful act or omission, or negligence.

5.7 Any external sources (including without limitation, fire, water, flood, frost, ice, wind, fusion, immersion in any liquid, lightning, power surges, induced electrical surges, earthquake, elements of nature or an act of God, riot, civil disorder, vandalism, strikes or industrial strife, war, lockouts, road closure, interference, external wiring and connections, theft, sand, water, liquid, corrosion, battery leakage, rust, mildew, mould or any other cause beyond our reasonable control).

5.8 The Covered Component being subjected to radio frequency or electromagnetic interference.

5.9 Any system or equipment malfunctions caused by the abnormal operation, or by unspecified, undocumented or unexpected operation of any third-party computer hardware or system unavailability.

5.10 Any Disruption or interference of any telecommunications services, infrastructure, landline or radio communication service, radio technology, radio signals, or if the Covered Component is operated in a fringe radio coverage area and the reliability and integrity of the radio signals are unacceptable to us.

5.11 Any insufficient hard disk capacity or computer malfunction when you supply the computer hardware.

5.12 Any fair, wear and tear/ and or force breakdown or consumption of consumable products including without limitation, cables, cords, batteries and bulbs which are supplied as part of or with the Covered Component.

5.13 Loss of any data as a result of viruses, malfunction or damage.

5.14 Any non-operating or cosmetic deterioration of the Covered Component (including without limitation, discoloration, fading, other appearance defects, deterioration, staining and corrosion).

5.15 Any noises or vibrations of low amplitude or frequency which do not affect the Covered Component’s functionality or operation.

6. Limitation of liability

6.1 To the extent permitted by law, our liability is limited in accordance with the terms in this  Agreement for Provision of Equipment & Services between you and us, and in addition, to the extent permitted by law, we will not be liable for any and all consequential, indirect, economic and special losses, costs, expenses, liabilities and damages (including without limitation, your travel costs, time costs in making any claim, loss of use of the Product, loss of revenue, loss of business and loss of goodwill) as a result of or in connection with any warranty claim.

On Track Fleet Management System

Subject to your compliance of these terms we grant you a non-exclusive, non-transferable, revocable licence to access the On Track Fleet Management System (the Services) and download or print a copy of any portion of the content to which you have properly gained access solely for your personal or internal business use. Except as set out in these terms and conditions, no part of the Services and no content may be copied, reproduced, aggregated, republished, uploaded, posted, publicly displayed, encoded, translated, transmitted, distributed, sold, licensed or otherwise exploited for any commercial purpose whatsoever without our express prior written permission.

Any breach of these intellectual property rights will constitute a material breach of our legal terms and your right to use our services or terminate immediately.

By using the services, you represent and warrant that you have the legal capacity and you agree to comply with these legal terms, you are not a minor in the jurisdiction in which you reside, will not access the services through automated or non-human means, through a bot, script or otherwise, you will not use the services for any illegal or unauthorised purpose, and your use of the services will not violate any applicable law or regulation. If you provide any information that is untrue, inaccurate, not current, incomplete, we have the right to suspend or terminate your account and refuse any and all current or future use of the services (or any portion thereof).

Customer acknowledges and agrees that:
(a) although certain Services contain maps, routing instructions and driving directions, On Track GPS assumes no responsibility for the accuracy of this information. Customer is responsible for checking directions for accuracy, confirming that the designated routes still exist, responding appropriately to construction and other road hazards and adhering to all traffic laws;
(b) the Equipment and the Services may contain certain third-party applications licensed to On Track GPS. The right to access and use the Services granted hereunder shall be subject to any underlying license to On Track GPS from a third party of any component of the Equipment or Services;
(c) Customer may be responsible for obtaining from third parties certain additional hardware or services which may be needed to operate the Services or any portion thereof. If the provider of any such third party hardware or service ceases to make the third party hardware or service available for interpretation with the corresponding Services or on reasonable terms, On Track GPS may cease providing such Services or any portion thereof without entitling the Customer to any refund, credit or other compensation. Where such cessation has a material detrimental effect on the Services, Customer may terminate the affected Services without liability by giving On Track GPS notice within 30 days of the cessation and On Track GPS will have no liability to the Customer whatsoever in this event; and
(d) Vehicles may need to be in full working condition and that Equipment will need to have an active connection to a satisfactory mobile network in order to accept certain commands and for certain Services to operate properly.
3.5 This Section 3.5 applies if Customer has subscribed to a Service that includes On Track GPS’ Immobilisation service:
(a) Customer acknowledges and agrees that use of Immobilisation is the sole responsibility of Customer and it is Customer’s duty to ensure the Immobilisation feature is deployed responsibly, with due investigation and care to ensure that third parties are not exposed to any risk of injury or damage to property. The Immobilisation feature should only be deployed when the Vehicle is located in a non-hazardous location. Customer hereby assumes the risks associated with the use of the Immobilisation feature and releases On Track GPS from any underlying liability that
may arise in connection therewith, except to the extent such liability is attributable to the negligent act of omission of On Track GPS.
(b) Installation (and any de-installation/re-installation) of the Immobilisation feature by any party, including On Track GPS, may cancel, void or otherwise negatively affect certain warranties provided by the manufacturer of the Vehicle or other third parties. Customer acknowledges and agrees that it has entered into this Agreement aware of such risks and hereby releases On Track GPS and its installers from any liability in
connection therewith. In the event that Customer chooses to Self-install Immobilisation, it is Customer’s obligation to select an installer knowledgeable of and skilled in the installation/de-installation requirements for the Immobilisation feature.

The Customer acknowledges that servers are held by Third Party suppliers and are guaranteed by them that there will be 99% uptime. This excludes scheduled maintenance, emergency maintenance, DDoS attacks, force majeure and hardware failures within your server. The Customer acknowledges and agrees that it has entered into this Agreement aware of the risks of any downtime which may occur from time to time and hereby releases On Track GPS from any liability in connection therewith.

Payment

You agree to provide current, complete and accurate purchase and account information for all purchases made via the Services. You further agree to promptly update account and payment information, including email address, payment method and payment card expiration date, so that we can complete your transactions and contact you as needed. Sales tax will be added to the price of purchases as deemed required by us. We may change prices at any time. All payments shall be in AUD.

You agree to pay all charges at the prices then in effect for your purchases and any applicable shipping fees, and you authorise us to charge your chosen payment provider for any such amounts upon placing your order. We reserve the right to correct any errors or mistakes in pricing, even if we have already requested or received payment.

Data storage

Your tracking data is securely maintained on the tracking platform for 90 days. Customers requiring data to be maintained on a longer basis should download and keep their own records.

Billing and renewal

Your subscription will continue and automatically renew unless cancelled. You consent to us charging your payment method on a recurring basis without requiring your prior approval for each recurring charge, until such time as you cancel the applicable order. Length of your billing cycle is monthly.

Free trial

We offer a 30-day free trial to new users who register with the Services. The account will be charged according to the user’s chosen subscription at the end of the free trial.

Cancellation

All purchases are non-refundable. You can cancel your subscription at any time by contacting us using the contact information provided below. Your cancellation will take effect at the end of the current paid term. If you have any questions or are unsatisfied with our services please email us.

Fee changes

We may, from time to time, make changes to the subscription fee and will communicate any Price changes to you in accordance with applicable law.