1.1. The Fleetsu Service and Products are supplied to the person or entity specified on the Customer Order Acceptance Form (Customer or you) pursuant to the terms set out in these Subscription Terms, the Website Terms and Conditions
at https://fleetsu.com/terms-conditions/ (Website Terms) and the Customer Order Acceptance 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 Fleetsu (Agreement).
1.2. By accessing or using any Fleetsu Service or Products, the Customer agrees to be bound by the Agreement and any other relevant policies published on the Website.
1.3. In using any Fleetsu Service or Products, 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 Fleetsu Service or Products. If you do not agree to this Agreement, do not use the Fleetsu Service or Products.
1.4. We reserve the right to change, modify, add or remove portions of these Subscription Terms from time to time. The revised Subscription Terms will apply to your use of the Fleetsu Service from the date of each renewal of your Subscription Period, unless otherwise agreed in writing. Please check the Subscription Terms regularly to ensure you are aware of any changes. If you continue to use the Fleetsu Service or Products, then we will regard that use as conclusive evidence of your agreement and acceptance of the revised Subscription Terms.
1.5. The Customer’s general terms and conditions are hereby expressly excluded.
2.1. “Australian Consumer Law” or “ACL” means the law as set out in Schedule 2 of the Competition and Consumer Act 2010 (C’th). 2.2. “Customer” means the entity identified as the customer in the Order Form.
2.3. “Consumer” means a person or entity acquiring goods or services as a “consumer” as that term is defined in the Australian Consumer Law.
2.4. “Customer Data” means the Location Data, Vehicle Data, and any other data provided by the Customer to Fleetsu for the purposes of the Fleetsu Service.
2.5. “Effective Date” means the date that the Customer and Fleetsu enter into the Agreement for the provision of Products and Fleetsu Services set out in the applicable Order Form.
2.6. “Fleet” means the vehicle, vehicles or other assets owned, managed or operated by the Customer in the Territory.
2.7. “Fleetsu” means Fleetsu Pty Ltd ACN 602 888 022 with registered office at 102 James Street, Level 6, U601. 6003 Northbridge, Perth, WA, Australia
2.8. “Fleetsu Service” means the online service, available via the Website, provided by Fleetsu to enable the Customer to monitor the location of, and other data relating to, the Fleet, to the extent that such Fleet is located in the Territory, including by facilitating the transmission of Location Data and Vehicle Data between the Platform and the Transmission Units via a Mobile Communications Service.
2.9. “Force Majeure” means any cause beyond the reasonable control of the party affected, which affects the performance of the Agreement, including in any case prolonged break-down of transport, telecommunication or electric current.
2.10 “GPS” means the global positioning system.
2.11 “Hardware Transmission Unit” means a Transmission Unit which comprises hardware and software elements, including without limitation physical tracking units for connection with Fleet vehicle diagnostic ports.
2.12. “Intellectual Property Rights” includes all industrial and intellectual property rights throughout the world including copyright, moral rights, trademarks, patents, rights to protect confidential information and any similar rights.
2.13. “Location Data” means data on the geographical position of the Transmission Unit, including GPS data.
2.14. “Login Information” means the username(s), password(s) and any other information provided to you or by you for the purpose of accessing the Fleetsu Service or Website.
2.15. “Mapping Data” means third party GPS location maps
2.16 “Maximum Number” 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.
2.17 “Mobile Communications Device” means a mobile device supplied by the Customer which is connected to GPS and Mobile Communications Services, including without limitation mobile phone or tablets.
2.18. “Mobile Communication Services” means mobile electronic communication services, including GSM/GPRS data transmissions.
2.19. “Order Form” means the Customer Order Acceptance Form which Fleetsu provides to the Customer and the Customer completes and accepts to purchase Products and a Subscription to the Fleetsu Service in accordance with the terms of the Agreement.
2.20. “Platform” means the IT systems that run the Fleetsu Service.
2.21. “Privacy Act” means the Privacy Act 1998 (C’th) and any subsequent amendments.
2.22. “Products” means the products supplied by Fleetsu to the Customer from time to time, including the Transmission Units.
2.23 “Software Transmission Unit” means a Transmission Unit which comprises software only and is intended to operate on a Mobile Communications Device, including without limitation a mobile application.
2.24. “Subscription” means the right to use the Fleetsu Service with up to the Maximum Number of Transmission Units under this Agreement.
2.25. “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 12 months.
2.26. “Subscription Terms” means these terms and conditions for the use of the Fleetsu Service and Products.
2.27. “Transmission Unit” means a device in any form that is purchased by or otherwise supplied to the Customer by or on behalf of Fleetsu, for the purpose of obtaining, sending and receiving one or more of: (a) Location Data; and (b) Vehicle Data, and communicating with the Fleetsu Service via Mobile Communication Services.
2.28. “Trial Period” means the trial period for a trial of the Products and Fleetsu Service specified in the applicable Order Form. 2.29. “Vehicle Data” means data relating to a Fleet vehicle.
2.30. “Website” means www.fleetsu.com.
3. Fleetsu Service and Products
3.1. Products and Subscriptions to the Fleetsu Service may be purchased via the Website.
3.2. Each Order Form completed by you is an offer to purchase a Subscription and Products and, when accepted by you, will be subject to the terms of this Agreement.
3.3. Each Subscription grants the Customer a non-exclusive and non-transferable right to use the Fleetsu Service with up to the Maximum Number of Transmission Units, only for the purpose of collecting Vehicle Data and Location Data and for tracking and tracing the Fleet and for reporting, planning and messaging purposes.
3.4. Subject to the following, the Customer may purchase or otherwise be supplied with an unlimited number of Transmission Units:
(a) You must not operate the Fleetsu Service with more than the Maximum Number of Transmission Units, as amended from time to time.
(b) The Customer may increase the Maximum Number of Transmission Units at any time during the applicable Subscription Period subject to Fleetsu’s consent and payment by Customer of any applicable Subscription Fee.
(c) Subject to paragraphs 3.4(a) and (c), any increase to the Maximum Number will take effect immediately and apply to all future Subscription Periods.
(d) The Customer may decrease the Maximum Number of Transmission Units at any time during the Subscription Period by notice to Fleetsu at least 30 days before the end of the applicable Subscription Period. Any decrease to the Maximum Number will take effect at the start of the next Subscription Period.
(e) Products must only be used in conjunction with the Fleetsu Service, and for no other purpose.
3.5. The Customer is responsible for:
(a) equipping the Fleet with properly working Transmission Units and ensuring that each Transmission Unit is connected to the applicable Mobile Communication Services;
(b) ensuring that it has properly functioning browser software and Internet access to the Website and the Fleetsu Service of sufficient bandwidth;
(c) the correct configuration of the Fleetsu Services and Mobile Communications Devices; and
(d) ensuring that the Software Transmission Units are installed and operated on compatible and appropriate Mobile Communications Devices, including without limitation in accordance with minimum specifications that may be provided by Fleetsu from time to time.
3.6. Fleetsu does not warrant that GPS or the Mobile Communication Services will continue to support the functionality offered by the Fleetsu Service or Transmission Units nor that the Customer will be able to successfully use the Products or Fleetsu Service for their intended use, as referred to in Paragraph 3.3, due to the fact that such use depends partly on circumstances beyond Fleetsu’s reasonable control, including those circumstances for which the Customer is responsible pursuant to Paragraph 3.5. Fleetsu shall not be liable for any loss caused as a result of the foregoing.
3.7. Fleetsu reserves the right to at any time change the look and feel of the Website and the way the Customer Data are displayed on the Fleetsu Service.
3.8. The Customer acknowledges and agrees that:
(a) due to the intermittent nature of the internet and mobile networks, the Fleetsu Service may be temporarily unavailable from time to time;
(b) Mobile Communication Services may be delayed or not delivered from time to time;
(c) there may be location errors due to the GPS data or typographical errors in the Mapping Data used;
(d) the operation of the Fleetsu Service is dependent on Transmission Units having access to the Mobile Communication Services or a GPS signal. If the Transmission Unit is in a location where it cannot get coverage from Mobile Communication Services or a GPS signal, then the Fleetsu Service will not be able to locate the Transmission Unit until such time as it moves into an area with network coverage or capable of receiving such signal;
(e) Fleetsu is not liable to Customer or any other person for faults or defects that arise in services and products not provided under this Agreement (even if they are connected, with our consent, to the Products or Fleetsu Service under this Agreement) which are due to incompatibility with the Fleetsu Service, including without limitation Mobile Communications Services and Mobile Communications Devices;
(f) the Products and Fleetsu Service are not failsafe and are not to be used for emergency use where failure of the Products or Fleetsu Service or inaccurate location information could lead to property damage, personal injury or death; and
(g) While Fleetsu uses reasonable efforts to ensure the accuracy, correctness and reliability of the Products and Fleetsu Service, Fleetsu makes no representations or warranties as to the accuracy, correctness or reliability of any content, product, service or data supplied by Fleetsu. Fleetsu is not liable for the consequences of your failure to independently check such information, including for any wasted expenditure, personal injury or loss of, or damage to, tangible property that results from your reliance on the Products or Fleetsu Service.
(h) In the event of unexpected faults to the Fleetsu Service will use reasonable endeavours to ensure the relevant product or service is restored as soon as possible. However, Fleetsu does not promise that the Products or Fleetsu Service will be error free or uninterrupted.
(i) Fleetsu tries to ensure that the Fleetsu Service is free from viruses and harmful code but Fleetsu cannot guarantee that files you download will be free of contamination or destructive properties. Fleetsu suggests you install and use anti-virus and antispyware at all times.
4. Trial Period
4.1. If you register on our Website for a free or paid trial of the Fleetsu Service, you will receive the Fleetsu Service or part thereof for the Trial Period for free or at a reduced price, as applicable.
4.2. At the end of the Trial Period, if you have not purchased a Subscription to the Fleetsu Service and applicable Products, you must immediately stop using the Fleetsu Service and immediately return all Hardware Transmission Units and other Products (other than Software Transmission Units) provided to you by Fleetsu, at your cost, by Australia Post and/or other reputable courier company. Subject to Paragraph 6.1, if Fleetsu has not received all such Transmission Units and other Products within 30 days after the end of the Trial Period then you will be charged and must pay to Fleetsu within 7 days of the date of Fleetsu’s invoice the replacement cost of such Products plus an administration and handling fee of 10%. The ownership of all Products provided to the Customer for a trial is retained by Fleetsu until payment is received. Risk in Products passes to the Customer upon delivery of the Product to the Customer.
5. Subscription Fees
5.1. If you notify Fleetsu that you wish to continue use of the Fleetsu Service after a Trial Period, or if Fleetsu accepts your Order Form for a Subscription to the Fleetsu 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 Number of Transmission Units and applicable Subscription Fees must be agreed between Fleetsu and you in writing.
5.2. This Agreement will be renewed automatically each Subscription Period until either you or us explicitly cancel the Fleetsu Service in accordance with this Agreement.
5.3. Unless otherwise specified on the Order Form, you must pay the applicable Subscription Fee in arrears for each Subscription Period. 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, upgrade/downgrade refunds or account cancellations. If you are not in breach of this Agreement, and Fleetsu elects to terminate the Fleetsu 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.
5.4. You must provide us with accurate billing information and keep this information up to date.
5.5. The prices payable for the Fleetsu 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 Fleetsu.
5.6. Products and the Fleetsu Service are priced in Australian Dollars and excluding Goods and Services Tax (GST) and any other applicable taxes chargeable at the current rate, unless otherwise specified.
5.7. If the Customer pays for Products and the Fleetsu Service thereof by continuing credit card instalment payments, the Customer acknowledges that Fleetsu 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.
5.8. If a scheduled fee payment is not made in full for any reason, you give Fleetsu permission to charge a late payment fee corresponding to the costs incurred by Fleetsu (including, without limitation, administrative and other costs) in recovering any payment not made by you on the due or scheduled date for payment, and interest at the rate of 7.5% per annum (calculated daily), and/or immediately limit or terminate access to the Fleetsu Service.
5.9. Fleetsu 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 2.5%. We reserve the right to change the fees for the Fleetsu 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.
6.1. If you notify Fleetsu that you wish to continue use of the Fleetsu Service after a Trial Period, or if Fleetsu 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 Fleetsu and you in writing. Unless otherwise specified on the Order Form, you must pay the applicable purchase price within 7 days of Fleetsu accepting the Order Form.
6.2. Fleetsu 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. Notwithstanding the previous sentence, Fleetsu may deliver Software Transmission Units to the Customer by making them available for download or by email to the email address provided by the Customer on the Order From.
6.3. 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 Fleetsu.
6.4. Subject to Paragraphs 4 (Trial) and 6.5 to 6.7 inclusive, title to and risk in Products passes to the Customer upon delivery of the Product to the Customer.
6.5. Fleetsu will provide the Customer with SIM cards for each Hardware Transmission Unit that the Customer is licensed to use in connection with the Fleetsu Service, which the Customer shall use solely:
(a) in combination with the Transmission Units; and
(b) for transmitting Location Data and Vehicle Data between the Fleet and the Platform.
6.6. The ownership of SIM cards provided by Fleetsu is retained by Fleetsu and the Customer must return or destroy such SIM cards upon expiry or termination of the Agreement, or at Fleetsu’s direction upon a reduction in the Maximum Number of Transmission Units in accordance with this Agreement.
6.7. The Customer shall indemnify, defend and hold Fleetsu 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 Fleetsu which is in breach of this Agreement.\
6.8 Your use of Software Transmission Units may be subject to separate terms and conditions that you must accept before using the Software.
7.1. Subject to clause 13 (Limitations of Liability), Products that are damaged or defective to an extent which materially impacts their intended operation may be returned by the Customer within 3 months of purchase. All returns must be made at Customer’s cost and be delivered by Australia Post and/or other reputable courier companies to Fleetsu at 102 James Street, Level 6, U601. 6003 Northbridge, Perth, WA, Australia.
Title to and risk in returned Products passes to Fleetsu upon delivery of the Product to Fleetsu. Damaged or lost orders should be resolved with Australia Post or the courier company directly and we are not responsible for goods that are damaged in transit or not received.
8. Installation and Use of the Products and Fleetsu Service
8.1. The Products and Fleetsu Service are intended for use around the world.
8.2. The Customer must use the Products and Fleetsu Service strictly in accordance with any instructions provided by Fleetsu 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 Fleetsu Service operate in accordance with the Privacy Act and any other applicable Commonwealth or State law, Act or Regulation and any instructions provided by Fleetsu as to use. The Customer and those parties it allows to use the Products and Fleetsu Service have the sole responsibility to obtain any necessary consent from the users of those devices or assets or vehicles where the Transmission Units are installed and must not use the Products or Fleetsu 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 Fleetsu Service 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 Fleetsu as to use, remains the sole responsibility of the Customer and the Customer agrees to indemnify Fleetsu for any loss or damage it may suffer as a result of a breach of this clause.
8.3. You must keep your 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.
8.4. You agree to notify Fleetsu in a timely manner of any change to your Login Information or other account details, including business address.
8.5. In using the Products or Fleetsu Service, the Customer must not engage or attempt to engage in any activities that:
(a) use any Products other than in conjunction with the Fleetsu Service, or copy, modify, reverse engineer or decompile the Transmission Units, Products or any software used or accessed or accessible via the Fleetsu 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;
(b) 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,);
(c) interfere with or disrupt any other third parties (including other users of the Fleetsu Service), equipment, functions, features, the Products, or Fleetsu Service;
(d) 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 Fleetsu Service or any related network;
(e) 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 Fleetsu Service, or its contents;
(f) 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;
(g) gain unauthorised access to the Products or Fleetsu Service;
(h) disrupt, impair, alter or otherwise interfere with the functions, features or content of the Products or Fleetsu Service;
(i) restrict or inhibit any other visitor from using the Fleetsu Service, including, without limitation, by means of “hacking” or defacing a portion of the Fleetsu Service or Website;
(j) modify, adapt, decompile, reverse engineer, disassemble or otherwise reduce the Fleetsu Service to a human-perceivable form; (k) harvest or collect information about users or members of the Fleetsu Service without their express written consent;
(l) use any meta-tags or any other “hidden text” utilising Fleetsu’s name or content of the Website without Fleetsu’s express written permission; or
(m) frame the Website, or utilise framing techniques on any part of the Website or Fleetsu Service, without Fleetsu’s express written permission.
9. Quotation and Descriptions
9.1. No quotation given by us constitutes an agreement to supply or provide the Products or Fleetsu Service. Fleetsu can amend or withdraw quotation at any time and all quotations are subject to the terms in this Agreement.
9.2. To the extent permitted by law, all descriptive specifications, illustrations, sample, data and dimensions provided by Fleetsu 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 Fleetsu Service and are not incorporated into this Agreement or any other agreement with you unless otherwise agreed in writing.
9.3. To the extent permitted by law, any typographical, clerical or other error or omission in advertising, sales literature, quotation, price, price list, offer, acceptance of offer, Website, invoice or other documents issued by Fleetsu will be subject to correction without liability on the part of Fleetsu.
10. Suspension and Termination
10.1. Fleetsu may suspend the use of the Fleetsu Service, any Products or the Customer’s access to location, tracking or monitoring information via the Products at any time without notice if:
(a) the Platform requires maintenance or upgrading;
(b) we have a reasonable belief that the Products or Fleetsu Service is being used unlawfully or contrary to any Act, law or regulation; or
(c) as a result of an event outside our reasonable control.
10.2. This Agreement commences on the Effective Date and shall expire when terminated under the terms of this Agreement. Fleetsu may terminate this Agreement and any licence created under it and cancel any Fleetsu Service provided or any access to the Platform with immediate effect and without notice if:
(a) 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 7 days of receiving written notice requiring the breach to be remedied; or (b) the Customer is made bankrupt, wound up or placed into administration or receivership or suffers any similar event of insolvency; or
(c) the events leading to suspension under clause 10.1, continue for more than 7 days.
10.3. In all other circumstances:
(a) The Customer may terminate this Agreement by giving written notice of termination to Fleetsu more than 30 days before the end of the current Subscription Period. The Agreement will terminate at the end of the current Subscription; or
(b) Fleetsu may terminate this Agreement by giving at least 30 days written notice of termination to the Customer. The Agreement will terminate at the end of the current Subscription.
10.4. Upon termination by either Fleetsu or the Customer for any reason, the Customer must pay any outstanding charges or Subscription Fees as detailed in the Agreement for the remaining portion of the current Subscription Period immediately. Where Fleetsu terminates this Agreement pursuant to Paragraph 10.3(b), a pro-rata portion of the Subscription Fee for the period not yet expired will be refunded by Fleetsu to the Customer.
10.5. Clause 3.8(e), 4.2, 5.7, 5.8, 5.9, 6.5, 6.6, 6.7, 7, 8, 11, 13, 14, 17, 18, 19, 23, 24, 26 will survive termination of this Agreement.
11. Customer Data
11.1. Your use of the Fleetsu Service and Products may generate Customer Data which is stored by or on behalf of Fleetsu and accessible by you via the Fleetsu Service and our Website. You agree that Fleetsu may use and analyse your Customer Data for the purpose of improving the Fleetsu Service and including the Customer Data in aggregated anonymous databases.
11.2. Within 7 days after the termination of the Agreement you may request a copy of the Customer Data and Fleetsu will provide you a single copy of the Customer Data. Thereafter, the Customer Data will no longer be accessible to you.
(a) grant to Fleetsu a non-exclusive, royalty-free, perpetual, irrevocable, fully paid-up, perpetual, worldwide license, with the right to sub-license, to use, modify, reproduce, adapt, communicate, display, perform, anonymize 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. Fleetsu may access Customer Data to service or respond to technical issues with the Fleetsu Service or Products.
(b) represent and warrant that Customer Data does not infringe any third party Intellectual Property Rights and that you own or otherwise control all of the rights to the content or that you have obtained all necessary authorisations and consents to upload, store, communicate, send and/or transmit Customer Data, that Customer Data is accurate, that the use of Customer Data does not violate this Agreement and will not cause any loss or injury to any person.
12.1. During the Subscription Period, you may contact Fleetsu at //support.fleetsu.com with your support queries. However, Fleetsu cannot guarantee that it will be able to resolve any issue raised by you. Fleetsu has no obligation to provide you with any additional maintenance or support, but if Fleetsu agrees to do so Fleetsu may charge you reasonable additional fees for the additional maintenance and support provided to you by Fleetsu.
13. Limitation of Liability
13.1. 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:
(a) contravene that statute; or
(b) render any part of this clause or this Agreement to be void.
13.2. To the extent to which the consumer guarantees under the ACL do not apply, Fleetsu:
(a) makes no representations or warranties concerning fitness for purpose or quality of any Products or Fleetsu Service, and you must assure yourself of these matters having regard to your circumstances;
(b) expressly negates and excludes all conditions and warranties which might otherwise by implied by law; and
(c) 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 Fleetsu Service or within any other time prescribed by this Agreement.
13.3. In relation to Products or Fleetsu Service that are not of a kind ordinarily acquired for personal, domestic or household use or consumption, Fleetsu’s liability to you arising from the consumer guarantees in the ACL is limited, at Fleetsu’s option, to:
(a) 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
(b) in the case of the Fleetsu Service, the supplying of Fleetsu Service again; or the payment of the cost of having the Fleetsu Service supplied again.
13.4. Fleetsu will not be liable to the final consumer where any Product supplied by it does not meet the consumer guarantees in the ACL:
(a) due to an act, default, or omission of, or representation made by, any person other than it or its employee or agent;
(b) due to a cause independent of human control that occurs after the Product leaves its control; and/or
(c) 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.
13.5. For Products and Fleetsu Services which are not supplied to a Consumer, Fleetsu’s 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 Fleetsu Service under this Agreement.
13.6. Fleetsu and the Customer agree that Fleetsu’s liability:
(a) for Products or the Fleetsu Service supplied to a Consumer, is governed solely by the ACL;
(b) for Products or the Fleetsu Service 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 the Fleetsu Service or the terms and conditions of this Agreement, even if Fleetsu has been advised of their possibility.
13.7. Except as otherwise provided for above and to the extent permitted by law, Fleetsu 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 Fleetsu Service operates, or indirect, special or consequential loss or damage.
13.8. Except as otherwise provided for above and to the extent permitted by law, Fleetsu excludes all Fleetsu’s 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 Fleetsu’s performance or non- performance of its obligations under this Agreement.
14.1. The Customer will indemnify and keep indemnified at its expense and to the maximum extent permitted by law, Fleetsu 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 Fleetsu and affiliates arising out of or in connection with:
(a) any negligent act or omission or wilful misconduct of the Customer in relation to the use or operation of the Product or Fleetsu Service;
(b) any use of the Products, Fleetsu Service or Website;
(c) any breach by the Customer of any term of the Agreement or any policy published on the Website; or
(d) any breach of any Act, law or regulation or use or misuse of the Product or Fleetsu Service, including but not limited to, any breach of privacy or claim of illegality in the use, operation, or access to Products and Fleetsu Service including the collection of location, tracking and monitoring information.
15. Force Majeure
15.1. To the maximum extent permitted by law and without limitation to clause 8, Fleetsu is not liable for: (a) any delay in correcting any fault in the Fleetsu Service; or
(b) failure or incorrect operation of the Fleetsu Service; or
(c) any other delay or default in performance under this Agreement;
15.2. if it is caused by an event beyond our reasonable control, including but not limited to war, theft, willful or accidental damage, sabotage, act of God, industrial action, embargo, delay or failure or default of a Mobile Communications Service, failure of or inability to access the GPS network, or any failure of other suppliers of goods or services to us or you.
16. Links To Other Websites
16.1. Fleetsu may from time to time provide, on its Site, links to other websites, advertisements and information on those websites for your convenience. This does not necessarily imply sponsorship, endorsement, or approval or arrangement between Fleetsu and the owners of those websites. Fleetsu takes no responsibility for any of the content found on the linked websites.
16.2. Fleetsu’s Site may contain information or advertisements provided by third parties for which Fleetsu accepts no responsibility whatsoever for any information or advice provided to you directly by third parties. We are making a ‘recommendation’ only and are not providing any advice nor do we take any responsibility for any advice received in this regard.
17.2. Fleetsu 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. In addition, the third party may use the information that you provide to improve its website and services but not for any other use.
18. Third party service providers
18.1. Fleetsu engages third party service providers in order to provide the Fleetsu Service. You agree to comply with all requirements and restrictions that these third party service providers may impose on you directly, or indirectly by imposition on Fleetsu, in relation to their respective products and/or services, at the time of, or subsequent to, the Terms and Conditions. You acknowledge that provision of the Products and the Fleetsu Service is subject to, and dependent upon, adequate delivery of products and services by these third party service providers. In accordance with clause 8 of the Subscription Terms, Fleetsu’s liability is reduced to the extent that loss or damage of any kind is caused, or contributed to, by third party service providers. For your convenience, Fleetsu has set out in this clause links to the terms and conditions of these third party service providers that you are required to comply with. You further acknowledge that by entering into this Agreement, you agree to comply with the respective terms and conditions of third party service providers, which currently include the third party service providers set out below. Third party service providers and their terms of supply may change from time to time during the Subscription Period.
(a) Amazon Web Services (AWS)
Fleetsu engages Amazon Web Services, Inc. to provide services (AWS Services) which enables delivery of the Fleetsu Service. By entering into the Terms and Conditions, you agree to comply with the AWS Customer Agreement (//aws.amazon.com/agreement/) as it applies to you. Use of the Fleetsu Service is also subject to your compliance with the following AWS policies:
(ii) Acceptable Use Policy (//aws.amazon.com/aus/)
(iv) Service Terms (//aws.amazon.com/serviceterms/)
(v) Trademark Use Guideline (//aws.amazon.com/trademark-guidelines/);
(b) Here Maps
19. Disclose Your Information
19.1. Fleetsu may be required, in certain circumstances, to disclose information in good faith and where Fleetsu is required to do so in the following circumstances: by law or by any court; to enforce the terms of any of our customer agreements; or to protect the rights, property or safety of our customers or third parties.
20.1. If and when applicable, GST payable on the Products and Fleetsu Service will be set out on our invoices. By accepting these Terms and Conditions you agree to pay us an amount equivalent to the GST imposed on these charges.
21.1. If you are in the business of providing products or services similar to the Products or Fleetsu Service for the purpose of providing them to users for a commercial gain, whether business users or domestic users, then you are a competitor of Fleetsu. Competitors are not permitted to use or access any information or content on our Website or the Fleetsu Service. If you breach this provision, Fleetsu will hold you fully responsible for any loss that we may sustain and hold you accountable for all profits that you might make from such a breach.
22. Restricting Access
22.1. Fleetsu reserves the right to exclude and deny any person access to our Website and the Fleetsu Service, at any time in our sole discretion.
23. Intellectual property
23.1. All Intellectual Property Rights (including copyright and patents) in the Products, Fleetsu Service and Website and all components of them are owned or licensed by Fleetsu unless otherwise indicated. You must not copy, modify or transmit any part of the Products, Fleetsu Service or Website except as permitted in this Agreement.
23.2. The Products, Fleetsu Service and Website contain trade marks, logos, service names and trade names of Fleetsu or third parties that may be registered or otherwise protected by law. These include the Fleetsu logo. You are not permitted to use any trade marks, logos, service names or trade names appearing on the Products, Fleetsu Service and Website.
23.3. Fleetsu expressly reserves all copyright and trademarks in all documents, information and materials on the Fleetsu Service and Website and we reserve the right to take action against you if you breach any of this Agreement.
23.4. You may not, except with our express written permission, distribute or commercially exploit the content. Nor may you transmit it or store it in any other website or other form of electronic retrieval system.
24.1. If any provision of these Terms and Conditions is held to be illegal, void, or unenforceable in any state or territory then such a clause shall not apply in that state or territory and shall be deemed never to have been included in these Terms and Conditions in that state or territory. Such a clause if legal and enforceable in any other state or territory shall continue to be fully enforceable and part of this agreement in those other states and territories. The deemed exclusion of any term pursuant to this paragraph shall not affect or modify the full enforceability and construction of the remaining provisions of these Terms and Conditions.
25. Entire Agreement
25.1. These Subscription Terms, Website Terms and the applicable Order Form make up the entire agreement between you and Fleetsu and supersede any prior agreement, understanding or arrangement between you and Fleetsu whether oral or in writing. No other term is to be included in this agreement except where it is required to be included by any legislation of the Commonwealth, or any state or territory. All implied terms except those implied by statute and which cannot be expressly excluded are hereby expressly excluded.
26.1. This Agreement is subject to the laws of Western Australia and Australia. You and Fleetsu irrevocably submit to the jurisdiction of the courts of Western Australia.
27.1 A notice, demand, certification, process or other communication relating to this document must be in writing in English and may be given by an agent of the sender.
27.1 In addition to any other lawful means, a communication may be given by being:
(a) personally delivered;
(b) left at the party’s current delivery address for notices;
(c) sent to the party’s current postal address for notices by pre-paid ordinary mail or, if the address is outside Australia, by pre-paid airmail;
(d) sent by fax to the party’s current fax number for notices; or
(e) emailed to the email address last notified by the addressee.
27.3 The particulars for delivery of notices are initially: Customer:
Delivery address: Postal address: Fax:
Fleetsu Pty Ltd:
102 James Street, Level 6, U601. 6003 Northbridge, Perth, WA, Australia
Each party may change its particulars for delivery of notices by notice to each other party.
27.4 Subject to clause 27.6, a communication is given if posted:
(a) within Australia to an Australian postal address, three Business Days after posting; or
(b) outside of Australia to an Australian postal address or within Australia to an address outside of Australia, ten Business Days after
27.5 Subject to clause 27.6, a communication is given if sent by fax, when the sender’s fax machine produces a report that the fax was sent in full to the addressee. That report is conclusive evidence that the addressee received the fax in full at the time indicated on that report.
27.6 If a communication is given:
(a) after 5.00 pm in the place of receipt; or
(b) on a day which is a Saturday, Sunday or bank or public holiday in the place of receipt,
it is taken as having been given at 9.00 am on the next day which is not a Saturday, Sunday or bank or public holiday in that place.
27.7 Any process or other document relating to litigation, administrative or arbitral proceedings relating to this document may be served by any method contemplated by this clause 27 or in accordance with any applicable law.
FLEETSU PTY LTD
email@example.com 1300 887 209
102 James Street, Level 6, U601. 6003 Northbridge, Perth, WA, Australia