Sale and Use of Retrack Products and Services
Our website address is: https://www.retrack.com.au
- This is an Agreement between Retrack and the Customer.
- All Retrack Products and Services supplied to the Customer are supplied pursuant to the terms and conditions set out in this Agreement.
- By accessing or using the Website or any Retrack Product or Service, the Customer agrees to be bound by the terms and conditions of this Agreement and any other relevant policies published on the Website.
- Nothing in this Agreement constitutes a transfer of any intellectual property rights. The Customer acknowledges and agrees that Retrack or its licensors or third-party suppliers own all applicable intellectual property rights in the Retrack Products or Services and any associated Software or Mapping Data.
- “Agreement” means this agreement for the sale and use of Retrack Products and Services.
- “Australian Consumer Law” or “ACL” means the law as set out in Schedule 2 of the Competition and Consumer Act 2010 (C’th).
- “Communications Service Provider” means Telstra, or any other communications service provider as varied from time to time by Retrack.
- “Communications Services” means communications services, including but not limited to GPS and GSM/GPRS, required for the Retrack Products to transmit information or signal to software.
- “Consumer” means a person or entity acquiring goods or services as a “consumer” as that term is defined in the Australian Consumer Law.
- “Coverage Area” means the tracking coverage area as defined by Retrack on its Website or the Communications Service Provider from time to time.
- “Customer” or “you” means the person purchasing or using the Retrack Product or Service.
- “GPS” means Global Positioning System.
- “GPRS” means General Packet Radio Service.
- “GSM” means Global System for Mobile Communications.
- “Hosting Fee” means a monthly fee payable by the Customer to Retrack for the Service.
- “Mapping Data” means GPS location maps supplied by Google Maps. Google Maps is a trademark of Google Inc.
- “Privacy Act” means the Privacy Act 1998 (C’th) and any subsequent amendments.
- “Product” means products supplied by Retrack such as Viper1, Viper2 and any other products developed and supplied by Retrack from time to time and any associated software.
- “Service” means the hosting of software accessible by the Customer via an internet connection that enables the Customer to track, locate or monitor Retrack Products where installed.
- “Software” means software applications and programmes developed or licenced by Retrack for the sole use by its Customers in association with Retrack Products.
- “Retrack” or “we” or “us” or “it” means Retrack Pty Ltd (ACN 095 876 172) trading as Retrack together with affiliates, related bodies corporate, officers, directors, employees, agents or service providers but does not include any third-party installer or repairer of Retrack Products.
- “Website” means the Retrack website located at www.retrack.com.au
Ordering Of Products
- Retrack Products may be ordered via the website located at www.retrack.com.au or purchased at retail locations shown from time to time on our website and Facebook page located at https://www.facebook.com/retrackgps.
- Each order by you is an offer to purchase products and/or Services and if accepted by Retrack will be subject to this Agreement and the policies published on the Website.
Retrack Products and Services
- Retrack through its products offers tracking, location and monitoring units for installation in vehicles and other assets. The products are designed to work with software hosted as a Service by Retrack that enables the Customer to view the location, track and monitor the tracking unit via the Telstra network, or in specific cases depending on device specific GSM frequencies the VODAFONE network using GSM/GPRS and GPS within the Coverage Area.
- The Customer acknowledges that:
(i) Due to the intermittent nature of the internet and mobile networks, the Service may be temporarily unavailable from time to time;
(ii) GSM/GPRS data transmissions may be delayed or not delivered from time to time;
(iii) There may be location errors due to the GPS data or typographical errors in the Mapping Data used;
(iv) The operation of the Service is dependent on the tracking unit having access to the GSM/GPRS network or a GPS signal. If the tracking unit is in a location where it cannot get coverage from the network or a GPS signal, then the Service will not be able to locate the unit until such time as it moves into an area with network coverage or capable of receiving such signal;
(v) Retrack is not liable to it or any other person for faults or defects that arise in communications services not provided under this Agreement (even if they are connected, with our consent, to the Service which Retrack has arranged under this Agreement) which are due to incompatibility with the Service.
(vi) The products and services are not failsafe and are not to be used for emergency use where failure of the product or inaccurate location information could lead to property damage, personal injury or death.
Installation and Use of the Products and Services
- The Products and Services are intended for use within Australia, however If the Customer of Retracks products and services are outside of Australia then they will be responsible for supply and installation of SIM cards for their specific country and Retrack will not be liable for any connection issues.
- The Customer must use the products and Services strictly in accordance with any instructions provided by Retrack as to use, the Privacy Act and all other applicable Commonwealth or State law, Acts or regulations. The Customer must also ensure that all other persons using the products and services operate in accordance with the Privacy Act and any other applicable Commonwealth or State law, Act or Regulation and any instructions provided by Retrack as to use. The Customer and those parties it allows to use the product and services have the sole responsibility to obtain any necessary consent from the users of those devices or assets or vehicles where the product is installed and must not use the product or Service to illegally track or monitor any person without consent. To the extent permitted by law, any liability that may arise from the use or operation of products and Services 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 Retrack as to use, remains the sole responsibility of the Customer and the Customer agrees to indemnify Retrack for any loss or damage it may suffer as a result of a breach of this clause.
- Unless specified, the products must only be installed or repaired by Retrack personnel or third-party installers or repairers approved by Retrack. The Customer modify, repair or tamper with the products or Services, or attempt to do the same, without Retracks prior written consent, or allow any third party to do the same. To the extent permitted by law, Retrack will in no way be liable for any damage caused by a third-party installer or repairer in the course of installing or repairing the products. The Customer’s rights for such damage lie against the third-party installer or repairer and the customer fully indemnifies Retrack in relation thereto.
- The Customer must quote their user logons or identification details to Retrack when requested. The Customer must not disclose their user logons and passwords or identification details to any other person or record or leave them in such a place as to make the details easily accessible to unauthorised persons.
- Subject to clause 7.4, Retrack grants the Customer a personal, non-exclusive, non-transferable, revocable licence to use any Software provided with the products and Services.
- All Software provided is subject to the terms and conditions of the license agreement relating to that Software. The Customer acknowledges its obligations to abide by such license agreements. The Customer acknowledges that Retrack does not make any express warranty in relation to any Software under this Agreement.
- The Customer must not copy, modify, reverse engineer or decompile the Software or any part of it (save to the extent expressly permitted by law) nor allow any other third party to do the same.
- The Customer may not transfer, assign, sub-licence or otherwise distribute or enable a third party to use the Software or any part of it.
- All rights, title or interest in respect of the intellectual property rights in the Software remain with Retrack or the licensor of the software at all times.
Retrack Hosting Services
- The Products are intended for use in conjunction with associated Software enabling the Customer to locate, track and monitor the product.
- In order to obtain this full functionality, the Customer must arrange for the installation of the product, register and activate it on the Website using their online user account via an internet connection.
- In return for a Hosting Fee payable by the Customer to Retrack as part of the registration and activation process, Retrack will provide the Customer with access to software which enables the Customer to locate, track and monitor their products.
- Retrack has the sole discretion to vary the Hosting Fee from time to time upon the provision of 30 days’ notice in writing.
- The Customer acknowledges and agrees that where the Hosting Fee is not paid within (14) fourteen days of the due date, Retrack will have no further obligation or responsibility to provide the Services.
- The Customer acknowledges and agrees that Retrack does not carry out any location, tracking or monitoring of the products and the only Service provided is to host software with the functionality to enable the Customer to undertake location, tracking and monitoring of the product themselves.
- The Customer acknowledges and agrees that all Software and Mapping Data remains the property of Retrack and its licensors and the Customer has the right to use the Software and Mapping Data only when the Hosting Fee has been paid.
- To the extent that they are compatible with the consumer laws in Australia, the Customer acknowledges that regardless of the quality of data obtained by the use of the products or Services or supplied by a Communications Service Provider, the Customer is liable to pay the Hosting Fee until a written request for termination is received from the Customer.
Title and Risk
- Title to and risk in the product passes to the Customer upon delivery of the product to the Customer. Title to those parts of the product that comprise third party Software shall remain with the applicable licensors at all times.
Prices and Payments
- The prices payable for the Retrack products and Services 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 Retrack.
- Products and Services are priced in Australian Dollars and include Goods and Services Tax (GST) and any other applicable taxes chargeable at the current rate, unless otherwise specified.
- Where the Customer pays for products and Services and/or installation thereof by continuing credit card instalment payments, the Customer acknowledges that Retrack is authorised to deduct all due payments on the dates on which they are required to be made and the Customer will continue to remain liable for all payments due and owing under this Agreement.
- Where the Customer makes payments to Retrack by way of credit card instalments or direct debit instalments, the Customer must immediately notify Retrack of the loss or theft or expiry of the particular credit card or Nominated Bank Account. The Customer must notify Retrack in writing of replacement credit card or Nominated Bank Account details as soon as practically possible so that continuing credit card payments or direct debit payments are not terminated.
- Where a Customer wishes to stop any credit card instalment payment or direct debit instalment payment to Retrack, the Customer must notify Retrack in writing of such decision.
- Payment for all products and Services is due according to the terms and conditions as specified in this Agreement or policies published by Retrack on the Website.
- Should the Customer default in any scheduled payment for the product or Service, all monies due under the terms of this Agreement will be due and payable immediately.
- The Customer agrees to be liable for all costs incurred by Retrack in the recovery of outstanding amounts under this Agreement. This includes interest at the applicable court rate, any debt collection costs and commissions, and any legal expenses (including legal fees and disbursements on a solicitor and client basis).
Quotation and Descriptions
- No quotation given by us constitutes an agreement to supply or provide the products or Services. Retrack can amend or withdraw quotation at any time and all quotations are subject to the terms in this Agreement.
- To the extent permitted by law, all descriptive specifications, illustrations, sample, data and dimensions provided by Retrack or otherwise contained in advertising material or on the Website are approximate only and are intended to be a general description of the products and Services and are not incorporated into this Agreement or any other Agreement with you unless otherwise agreed in writing.
- We may provide advice, recommendations and statements with respect to the products or Services. To the extent permitted by law:
- The Products and Services are intended for use within Australia and nominated countries by Retrack.
(i) Retrack does not warrant or guarantee the accuracy or completeness of that advice, those recommendations or statements or the results obtained through the use of the products or Services;
(ii) Retrack expressly disclaims any liability for damages to you from reliance on such advice, recommendations or statements; and
(iii) such advice, recommendations and statements are relied upon by you at your own risk and you should make appropriate enquiries having regard to your own circumstances.
- To the extent permitted by law, any typographical, clerical or other error or omission in advertising, sales literature, quotation, price list, acceptance of offer, Website, invoice or other documents issued by Retrack will be subject to correction without liability on the part of Retrack.
Our Warranties and Limitation of Liability
- Nothing in this Agreement operates to exclude, restrict or modify the application of any provision, the exercise of any remedy, or the imposition of any liability under the Australian Consumer Law (ACL) or any other statute where to do so would:
(i) contravene that statute; or
(ii) render any part of this clause or this Agreement to be void.
- To the extent to which the consumer guarantees under the ACL do not apply, Retrack:
(i) makes no representations or warranties concerning fitness for purpose or quality of any products or Services, and you must assure yourself of these matters having regard to your circumstances;
(ii) expressly negates and excludes all conditions and warranties which might otherwise by implied by law; and
(iii) is not and will not be liable for any claim by you for breach of representation or warranty unless notice is given in writing to us within two days of provision of the relevant product or Service or within any other time prescribed by this Agreement.
- In relation to products or Services that are not of a kind ordinarily acquired for personal, domestic or household use or consumption, Retrack’s liability to you arising from the consumer guarantees in the ACL is limited, at Retrack’s option, to:
(i) in the case of products, the replacement of the products or the supply of equivalent products; the repair of such products; the payment of the cost of replacing the products or of acquiring equivalent products; or the payment of the cost of having the products repaired; or
(ii) in the case of Services, the supplying of Services again; or the payment of the cost of having Services supplied again.
- Retrack will not be liable to the final consumer where any product supplied by it does not meet the consumer guarantees in the ACL:
(i) due to an act, default, or omission of, or representation made by, any person other than it or its employee or agent:
(ii) due to a cause independent of human control that occurs after the product leaves its control; and/or
(iii) in relation to the consumer guarantee as to acceptable quality, where the final consumer was aware of, or ought reasonably to have been aware of, any flaw in the Product at the time of purchase.
- For products and Services which are not supplied to a Consumer, Retracks total liability in respect of each event or series of connected events will not exceed the total price paid for the purchase of products and/or Services under this Agreement.
- Retrack and the Customer agree that Retracks liability:
(i) for products or Services supplied to a Consumer, is governed solely by the ACL;
(ii) for products or Services not supplied to a Consumer does not extend to any incidental, indirect, special 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 the purchase, use, operation or performance of products or Services or the terms and conditions of this Agreement, even if Retrack has been advised of their possibility.
- Except as otherwise provided for above and to the extent permitted by law, Retrack accepts no liability under or in connection with this Agreement or its subject matter whether in contract, tort (including negligence), under statute or otherwise for any loss of or damage to business or reputation, loss of revenue, loss of profits, loss of opportunity, loss of advantage, loss of use of any software or data, loss of use of any other equipment, loss of use of the system on which the Service operates, or indirect, special or consequential loss or damage.
- Except as otherwise provided for above and to the extent permitted by law, Retrack excludes all Retracks liability to you or any other person claiming through you, for any costs, loss, expenses, liability or damage, regardless of the form of action, whether in contract, tort (including negligence), under statute or otherwise, and whether arising from Retracks performance or non-performance of its obligations under this Agreement.
- The Customer will indemnify and keep indemnified at its expense and to the maximum extent permitted by law, Retrack against any and all claims, demands, actions, proceedings and all related liabilities, damages, settlements, penalties, fines, costs and expenses (including, without limitation, legal fees and other dispute resolution expenses on an indemnity basis) incurred by Retrack and affiliates arising out of or in connection with:
(i) any negligent act or omission or wilful misconduct of the Customer in relation to the use or operation of the product or Service;
(ii) any breach by the Customer of any term of the Agreement or any policy published on the Website;
(iii) any breach of any Act, law or regulation or use or misuse of the product or Service, including but not limited to, any breach of privacy or claim of illegality in the use, operation, or access to products and Services including the collection of location, tracking and monitoring information.
- To the maximum extent permitted by law and without limitation to clause 11, Retrack is not liable for:
(i) any delay in correcting any fault in the Service; or
(ii) failure or incorrect operation of the Service; or
(iii) any other delay or default in performance under this Agreement;
if it is caused by an event beyond our reasonable control, including but not limited to war, theft, wilful or accidental damage, sabotage, act of God, industrial action, embargo, delay or failure or default of a Communications Service Provider, failure of or inability to access the GPS network, or any failure of other suppliers of goods or services to us or you.
Suspension and Termination
- Retrack may suspend the use of the Service or the Customer’s access to location, tracking or monitoring information via the product or Service at any time without notice if:
- (i) the Retrack system hosting the Service requires maintenance or upgrading;
- (ii) we have a reasonable belief that the product or Service is being used unlawfully or contrary to any Act, law or regulation; or
- (iii) as a result of an event outside our reasonable control.
- Retrack may terminate this Agreement and any licence created under it and cancel any Services provided or any access to the Retrack system with immediate effect and without notice if:
(i) the Customer breaches any term or provision of this Agreement, including but not limited to a failure to pay any charges or Hosting Fee, and does not remedy the breach within 7 days of receiving written notice requiring the breach to be remedied; or
(ii) the Customer is made bankrupt, wound up or placed into administration or receivership or suffers any similar event of insolvency; or
(iii) the events leading to suspension under clause 14.1, continue for more than 7 days.
- In all other circumstances:
(i) The Customer may terminate this Agreement by giving at least 30 days written notice; or
(ii) Retrack may terminate this Agreement by giving at least 30 days written notice.
- Upon termination by either Retrack or the Customer, the Customer must pay any outstanding charges or the Hosting Fee as detailed in the Agreement for the remaining portion of the contract term immediately. Where Retrack terminates this Agreement pursuant to clause 14.4, a pro-rata portion of the Hosting Fee for the period not yet expired will be refunded by Retrack to the Customer.
- Upon termination, the Customer must cease to use any Software associated with the Service and delete any Software.
- Clause 4.2, 5.2, 6, 7.5, 7.7, 7.8, 9.3, 9.5, 9.7, 10, 11, 12.1, 14.4, 14.5, 15 and 16 will survive termination of this Agreement.
- The Customer is responsible for ensuring his compliance with all requirements of the Privacy Act and any other Commonwealth or State laws, Acts and regulations relating to the use or operation of the product or Services and the compliance of any other person he/she permits to use, operate or access the Product or Service.
- The Customer must not use, operate or access the Product or Service to illegally track an object or person without consent or allow any other person to do so.
- Any notice given under this Agreement will be in writing delivered to the relevant party or delivered by post or facsimile or email transmission at such address or number as may be notified in writing by each party to the other from time to time. 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 and if served by post two business days after the day of posting (not being a weekend or public holiday) and if served by facsimile or email on the day of dispatch if sent between the hours of 9am and 5pm on a business day.
- If any part of this Agreement is held to be invalid or unenforceable, it shall be deemed severed but this shall not affect the validity and enforceability of the remaining parts of the Agreement.
- The headings in this Agreement are for convenience only and shall not affect interpretation of the Agreement. The singular includes the plural and the masculine gender includes the feminine in the interpretation of these terms and conditions. Words indicating a person include a company, a corporation or an incorporated association and any other legal entity, and a partnership or other association. A reference to an Act, statute, or other legislation, includes regulations, rules and by-laws and other subordinate legislation made under the legislation, and includes all amendments, re-enactments and substituted legislation or instruments from time to time.
- The words “include”, “including”, “for example” or “such as” are not used as, nor are they to be interpreted as, words of limitation, and when introducing an example, do not limit the meaning of the words to that example.
- Retrack reserves the right to amend the terms of this Agreement from time to time. By placing an order or continuing to use the Website or a Product or Service, the Customer will be treated as having accepted the terms and conditions of this Agreement as altered and displayed on the Website.
- The Customer acknowledges that, to the extent permitted by law, this Agreement represents the entire agreement between the parties in relation to the subject matter of this Agreement and no prior oral or written representations shall apply.
- In the event of inconsistency between the terms and conditions of this Agreement and the Retrack policies published on the Website, the terms and conditions in this Agreement shall take priority.
- If Retrack waives any default or breach of this Agreement, this will not constitute a waiver of any other or subsequent default or breach. No waiver shall be effective unless made in writing.
- This Agreement shall be governed and construed according to the laws in force in the State of the Australian Capital Territory, Australia, and the parties irrevocably and unconditionally submit to the jurisdiction of the courts of the Australian Capital Territory.