Terms and Conditions of Supply (PAYG)

Future Fleet International Pty Ltd

ABN 53 105 076 864

WARNING:  If you do not understand our terms and conditions, you should seek independent legal advice. 

Background

  • The Supplier provides an Internet and GSM-GPRS-NextG or satellite connected communications service to Customers and users of its wireless data products. The function of this system includes communications services from third party telecommunications networks or satellite data transmission system to and from a Customer’s vehicles or to fixed locations. The system permits a Customer to use a third party internet connected server for viewing vehicle or device location via the internet on a Customer’s own computer equipment and also for downloading and uploading data to a vehicle terminal device from software applications resident on the Customer’s own computer equipment.
  • The Supplier provides the Services under an agreement with one or more third party suppliers.

 

1. Definitions and Interpretation

Conditions mean these Terms and Conditions of Supply.

Consequential Loss means loss of expected savings, loss of use, loss of opportunity, loss of profit, loss of revenue, increased financing costs, loss arising from delay, or any consequential, special or indirect loss or damage, whether or not the possibility or potential extent of the loss or damage was known or foreseeable, and whether arising from a claim under indemnity, contract, tort (including negligence), statute or otherwise.

Customer means the party making this application for credit.

Future Fleet means Future Fleet International Pty Ltd ABN 53 105 076 864

Goods means any electronic equipment including GPS tracking units and related devices supplied by the Supplier to the Customer whether by way of purchase or rental.

Insolvency Event means, for the Customer, as applicable, being in liquidation or provisional liquidation, bankruptcy or under administration, having a controller (as defined in the Corporations Act under s.459F(1) of the Corporations Act to have failed to comply with a statutory demand, being unable to pay the Customer’s debts, dying, ceasing to be of full legal capacity or otherwise becoming incapable of managing the Customer’s own affairs for any reason, taking any step that could result in the Company becoming an insolvent under administration (as defined in s.9 of the Corporations Act 2001), entering into a compromise or arrangement with, or assignment for the benefit of, any of the Customer’s members or creditors, or any analogous event.

Loss means any expense, cost or damage of any kind and includes Consequential Loss and a fine or penalty imposed by a statutory or other authority.

Related Bodies Corporate has the same meaning as in the Corporations Act 2001.

Service Access Fee means the monthly fee charged by the Supplier to the Customer to enable the Services to remain connected to the Customer’s computer.

Service Connection Fee means the fee charged by the Supplier to connect the Customer’s computer to the Services.

Service Fee includes but is not limited to the Service Connection Fee and the Service Access Fee and any other fee charged by the Supplier for additional Services requested by the Customer.

Services means any services provided by the Supplier to the Customer including but not limited to internet and GSM-GPRS-NextG or satellite communications more particularly described in Background (a).

Supplier means, in connection with the supply of any Goods and/or Services, Future Fleet making the supply to the Customer.

Supplier Quotation means a quotation given to the Customer for the supply of Goods and/or Services.

Supplier Ts&Cs means any terms and conditions in the Supplier Quotation.

Singular words include the plural and vice versa.  A mention of anything after include, includes or including, does not limit what else might be included.

2. Structure of this document

(a) These Conditions are intended to regulate key trading terms including the extension of credit in connection with the supply of Goods or Services by the Supplier to the Customer.

(b) The terms set out in Part A of these Conditions are incorporated by reference as part of the Supplier Ts&Cs. Those terms are legally binding between the Supplier and the Customer and should be read together with the Supplier Ts&Cs.  To the extent of any inconsistency, the Supplier Ts&Cs (excluding the incorporated Part A of these Conditions) prevail over these Conditions.

(c) The terms set out in part B form an agreement directly between the Customer and the Supplier. Those terms are legally binding between the Customer and The Supplier.

 

PART A

3.

3.1 Customer obligations

(a) These Conditions apply if the Supplier accepts any order for Goods or Services or both from the Customer, whether for cash or on credit. The Customer has no entitlement to credit unless in the Supplier’s sole discretion the Supplier extends credit to the Customer.  If in a particular case, the Supplier gives the Customer credit, the Supplier still reserves the right at any time and for any reason in the Supplier’s sole discretion to refuse to supply any further Goods or Services to the Customer and to refuse to supply any Goods or Services or both to the Customer on credit terms.  If the Supplier does decline to give the Customer further credit then that decision does not affect the credit terms which apply to any amounts the Customer then owes to the Supplier.

(b) If the Customer fails to comply with any of the terms of these Conditions or in respect of any obligation to pay money to the Supplier when due, suffers an Insolvency Event or makes any misrepresentation to the Supplier, the balance of the Customer’s account to the Supplier will become due and payable immediately.

(c) The Customer agrees that it must:

   (i) pay, without any deduction or setoff, the price charged by the Supplier for Goods supplied to the Customer on receipt of a Tax Invoice from the Supplier and prior to delivery of the Goods or, if credit terms are offered, within 14 days after the Supplier forwards a Tax Invoice to the Customer for the cost of the supply of the Goods. The Supplier will accept payment by either Visa card or Mastercard but all payments made by either of those means will incur a 1% surcharge which will be processed at the time of payment. Failure to pay an invoice by the due date may result in suspension or closure of your account. A $100 (One Hundred Dollar) re-connect fee may apply. If your account is passed onto our debt collection agency we reserve the right to on-charge these fees;

   (ii) pay any stamp duty assessed on this document or fee to register or maintain any security interest held by the Supplier in respect of Goods or Services supplied to the Customer;

   (iii) advise the Supplier in writing of the occurrence of any Insolvency Event, any change in its name, ownership or control, or any step being taken to sell an asset or assets (separately or together having a value being greater than 20% in value of its gross assets) as soon as practicable and not later than within two (2) business days of such event, change or step occurring. The Customer acknowledges that, despite any such event, change, or step, the Customer remains liable to pay the price for all Goods or Services supplied.

(d) If the Customer does not pay the Supplier for the Goods or Services in accordance with clause 3(c)(i) and cluse 3.2, the Supplier may refuse to supply any Goods or Services to the Customer until the Customer pays all amounts that it owes to the Supplier.

3.2 Service Fee

(a) The Customer agrees that the Service Fee is due and payable prior to a Service being supplied. The Customer further agrees that the Service Access Fee is due and payable monthly in advance before the last calendar day of each preceding month or if charged on a quarterly basis, on the last day of each preceding quarter. The Supplier may revise and change the Service Fee at any time by the Supplier advising the Customer of such changes in writing at least 30 days in advance of such charges becoming effective. The Customer agrees to pay the Service Fees as listed in the Supplier Quotation. Service Fees do not include delivery charges unless specifically included in a Supplier Quotation. Where the Supplier incurs unexpected costs in the installation and/or commissioning of the Goods or Services as a result of delays due to reasons which are not the responsibility of the Supplier, then these costs shall be the responsibility of the Customer.

(b) If the Customer fails to pay a Service Fee when it is due to be paid, the Supplier may suspend any Service.  A $100.00 charge may, at the Supplier’s option, be required to be paid by the Customer to the Supplier before the Supplier will re-supply a Service.

4. Overdue accounts and security

(a) Any amount not paid by the due date will incur interest at a rate of 5% above the Reserve Bank of Australia Cash Rate calculated daily and compounded monthly but in no circumstances will the interest charged exceed 20% per annum.

(b) The Customer agrees to pay all costs and expenses (including legal costs, commissions paid by the Supplier or its Related Bodies Corporate to any commercial or mercantile agent and dishonour fees) incurred by the Supplier in connection with the recovery of overdue amounts.

(c) The Supplier acknowledges that any payment made to it for a debt owed to the Supplier is in full satisfaction of the debt owed to it, to the extent of the payment made.

 

5. Retention of title

(a) The Supplier retains legal and equitable title in any Goods supplied to the Customer until payment in full for or in connection with the supply of the relevant Goods has been received by the Supplier. Until payment in full has been received, the following terms apply.

(b) Notwithstanding that title in the Goods remains with the Supplier until payment has been received in full, the Customer may use the Goods in the ordinary course of the Customer’s business

(c) The Customer must keep the Goods safe and free from deterioration, destruction, loss or harm, clearly designate the Goods as the property of the Supplier, store them in such a way they are clearly identified as the property of the Supplier and keep full and complete records, firstly, of the physical location of the Goods and, secondly, the ownership of the Goods by the Supplier.

(d) The Supplier is irrevocably entitled at any time and from time to time before sale of any item of Goods by the Customer to inspect or to recover and retake possession of such Goods and otherwise exercise in relation to the Goods any of its rights whether those rights are as owner and/or unpaid Seller or otherwise and whether those rights are conferred by common law, contract, statute or in any other way. In order to exercise such entitlement, the Supplier and its agents are irrevocably authorised by the Customer to enter any of the Customer’s premises or vehicles or those of any third party.  The Customer agrees to obtain the consent of any such third party to such entry by the Supplier and to indemnify the Supplier and its agents for any liability arising from any entry upon such third parties’ premises or vehicles.  The Supplier and its agents agree to take all reasonable care in removing the Goods from such premises or vehicles but, to the extent this liability may be disclaimed by law, are not liable for any damage or injury to such premises caused by the removal of the Goods.

(e) This reservation of title and ownership is effective whether or not the Goods have been altered from their supplied form, or commingled with other goods.

 

6. Security Interest

(a) The retention of title arrangement described in clause 5 constitutes the grant of a purchase money security interest by the Customer in favour of the Supplier in respect of all present and after-acquired Goods supplied to the Customer by the Supplier.

(b) The Customer must immediately, if requested by the Supplier, sign any documents, provide all necessary information and do anything else required by the Supplier to ensure that the Suppliers purchase money security interest is a perfected security interest.

(c) The Customer will not enter into any security agreement that permits any other person to have or to register any security interest in respect of the Goods or any proceeds from the sale of the Goods until the Supplier has perfected its purchase money security interest.

(d) For any Goods supplied that are not goods that are used predominately for personal, domestic or household purposes, the parties agree to contract out of the application of ss 95, 118, 121(4), 130, 132(4), 135, 142 or 143 of the PPSA in relation to the Goods.

(e) The Customer hereby waives any rights the Customer may otherwise have to:

   (i) receive any notices the Customer would otherwise be entitled to receive under ss 95, 118, 121, 130, 132 or 135;

   (ii) apply to a Court for an order concerning the removal of an accession under s 97;

   (iii) object to a proposal of the Supplier to purchase or retain any collateral under ss 130 and 135;

   (iv) receive a copy of a verification statement confirming registration of a financing statement, or a financing change statement, relating to any security interest the Supplier may have in Goods supplied to the Customer from time to time.

(f) For the purposes of this clause “PPSA” means the Personal Property Securities Act The expressions “accession”, “collateral”, “financing statement”, “financing change statement”, “security agreement”, “security interest”, “perfected security interest” and “verification statement” have the meanings given to them under, or in the context of the PPSA.  References to sections are to sections of the PPSA.

7. Risk

(a) Risk in relation to any Goods passes to the Customer on delivery of the Goods. Delivery of Goods will be at the Supplier’s premises on collection of the Goods by the Customer, its employees, agents or contractors.  If the Supplier has expressly agreed to ship the Goods, risk in the Goods passes immediately to the Customer on delivery of the Goods by the Supplier to the Supplier’s freight agent.

(b) The Customer acknowledges that the Supplier is dependent upon others for the manufacture of the Goods, their supply, delivery dates and specifications and accordingly the Supplier does not warrant that the Goods will be delivered on any particular date or will be identical to any Goods previously delivered to the Customer.

(c) Where the Goods or Services utilise any telecommunication network, satellite communication system, global positioning system, internet access or availability or any other telecommunication’s facility that are provided by a third party, the Customer acknowledges that the performance, availability and reliability of those telecommunication facilities are outside the control of the Supplier and the Supplier shall not be responsible for the unavailability or non-performance of these telecommunications facilities.

 

8. Exclusion of implied terms

The Customer may have the benefit of consumer guarantees under the Australian Consumer Law.  Otherwise, to the maximum extent permitted by law, all terms, conditions or warranties that would be implied into Supplier Ts&Cs or in connection with the supply of any Goods or Services by the Supplier under law or statute or custom or international convention are excluded.

 

9. Warranty

The Supplier warrants that all Goods sold to the Customer are free from manufacturing defects in materials and workmanship and will meet the specifications as contained in the Supplier Quotation for a period of twelve (12) months (warranty period) from the date of delivery of the Goods. The liability of the Supplier shall be limited to the repair or making good the defect, or the replacement of the Goods at the sole discretion of the Supplier. In the case of the supply of Services by the Supplier, the liability of the Supplier shall be for the supply of those Services again. This warranty shall not apply to installation components such as antenna, coaxial cables, battery or power supply cabling, fuses, or power supply connections. Any faulty Goods must be returned to the nominated premises of the Supplier freight free. The Supplier shall not be held responsible for Goods not received. These Conditions contain the entire warranty in respect of the Goods or Services sold or provided by the Supplier and all warranties the Customer or implied, statutory or otherwise are hereby excluded and the Supplier shall not be liable for any Consequential Loss suffered by the Customer or any other person. The conditions of this warranty shall not apply nor be deemed to apply until such times as the Customer shall have paid without any deduction, all monies then due and owing to the Supplier for the supply of Goods and Services payable in accordance with the Supplier Quotation or these Conditions. The date of commencement of the warranty period shall be the date of installation of a Service or delivery of Goods. The warranty shall be null and void where the Goods are returned to the Supplier in any condition except that in which they were installed or delivered. Where the Goods have been subjected to environmental conditions which exceed the published ratings, or have been used for purposes other than their normal intended use, or have been subjected to misuse or physical damage, or have been used with an unapproved installation, or have been repaired or tampered with by persons who are not the employees of the Supplier or approved repairers of the Supplier, then this warranty shall be null and void.

 

10. Exclusion of Liability

The Supplier shall be not liable for any failure, fault or delay in the delivery by the Supplier of the Services or any failure, fault, installation, inaccuracy of data or misapplication of the Services including hardware and software or the marketing, sale or support of the Services by the Supplier or its agents or any loss or damage suffered by the Customer or any client of the Customer resulting from the use of the Services.

 

11. Damages

The Customer acknowledges that the Services provided by the Supplier to the Customer utilise telecommunication networks, satellite communication systems, Global Positioning Systems, internet access and other facilities that are provided by third parties.  The Customer acknowledges that the performance, availability, and reliability of the services are beyond the control of the Supplier, and that the Supplier shall not be held responsible for any damages including Consequential Loss suffered by the Customer because any of the Services are malfunctioning or not available.

12. GST

If the Supplier has any liability to pay Goods and Services Tax (GST) on the supply of any Goods or Services to the Customer, the Customer must pay to the Supplier an amount equivalent to the GST liability of the Supplier at the same time as the consideration is paid for the Goods or Services (unless the consideration for that supply is expressed specifically to be GST inclusive).

 

13. Training

When requested by the Customer, the Supplier will provide the Customer with two (2) hours training with respect to the operation of the Goods and access to the Service free of charge.  Any additional training required by the Customer shall be charged at the rate of $130.00 per hour plus GST.

 

14. Delivery

The Supplier will only provide an estimate of the delivery time of the Goods. Delays beyond the control of the Supplier shall not constitute any liability to the Customer. The Supplier may make part deliveries as Goods become available and to make changes to the payment schedule in accordance with this part delivery schedule

 

15. Cancellation of Orders

The Customer shall not have the right to cancel any order without the consent of the Supplier. Where the consent is provided by the Supplier, the Supplier shall have the right to charge the Customer a cancellation fee which shall compensate the Supplier for any expenses reasonably incurred in the preparation of the Goods for the Customer or the holding of Goods awaiting a new sale of the same Goods that had been ordered specifically for the Customer.

 

16. Force Majeure

Failure of the Supplier to perform its obligations under these Conditions shall not subject the Supplier to any liability to the Customer if such failure is caused by or occasioned by act of god, act of terror and terrorism, fire, explosion, water, flood, wind, earthquake, lightning, frost or ice, mains power outages or surges, war, riot, civil disturbance, accidental damage, sabotage, embargo, strikes or other labour unrest, interruption due to delay in transportation, compliance with any order, regulation or request of any government of competent jurisdiction or any officer, department, agency or committee thereof, the unavailability of telecommunication or internet services, or by any other event or circumstance of like or different character to the foregoing beyond the reasonable control of the Supplier.

 

17. Term

Upon acceptance of a Supplier Quotation by the Customer, the Services and/or Goods shall be supplied to the Customer by the Supplier.  The Customer or the Supplier may terminate the Services upon 30 days prior notice to the other. All service cancellations must be requested in writing 7 days prior to end of the month to support@futurefleet.com.au. Future Fleet does not accept cancellations over the phone.

 

18. Intellectual Property Rights

The Customer acknowledges that the Supplier is the sole owner of all intellectual property rights in the Services and Goods provided by it to the Customer.

 

19. Confidentiality

The Customer agrees to keep secret and confidential, all information of a technical, commercial or business nature whether written or oral, or electronic form disclosed by the Supplier to the Customer during the term of this agreement.  This shall include Service operation and features, all fees and charges, and Service performance or unavailability periods. The Customer agrees that all information in written or electronic form shall always remain the property of the Supplier and that this information must not be duplicated or copied to any other party during or after cessation of this agreement. The Customer further agrees to return all such information to the Supplier immediately upon termination of this agreement. The Customer agrees to keep strictly confidential all details of this agreement for a period of five (5) years after termination of this agreement.

20. Supplier Quotation

A Supplier Quotation is valid for a period of 30 days from the date it is given to the Customer.  The Supplier may withdraw or change a Supplier Quotation at any time prior to receiving written acceptance of it from the Customer.

 

21. Prices

The Supplier Quotation for imported goods may be based on the rates of currency exchange, freight, insurance and customs duty. Any increase or decrease in these costs may result in price changes by the Supplier if the Supplier Quotation specifies that the price is variable in accordance with these rates.

 

22. Assignment

The Supplier may assign its rights and obligations under these Conditions but the Customer may not assign its rights and obligations without the prior written consent of the Supplier.

 

23. Notices

(a)  A notice or other communication connected with these Conditions (Notice) has no legal effect unless it is in writing.

(b) The Notice must be sent by prepaid post to or delivered or sent by facsimile to the Customer to its address and/or facsimile number set out in Section 1 of these Conditions and to the Supplier at the address and/or facsimile number set out in Section 1 of these Conditions.

(c)   A Notice must be treated as given and received:

   (i) if sent by post, on the 2nd business day (at the address to which it is posted) after posting;

   (ii) if sent by facsimile before 5 pm on a Business Day, on the day it is sent and otherwise on the next Business Day; or

   (iii) if otherwise delivered before 5 p.m. on a Business Day, upon delivery, and otherwise on the next Business Day.

(d)  Despite clause 23(c)(ii), a facsimile is not treated as given or received unless at the end of the transmission the sender’s facsimile machine issues a report confirming the transmission of the number of pages in the Notice.

(e)  A Notice sent or delivered in a manner provided by clause 23(b) must be treated as validly given to and received by the party to which it is addressed even if:

   (i) the addressee has been liquidated or deregistered or is absent from the place at which the Notice is delivered or to which it is sent; or

   (ii) the Notice is returned unclaimed.

 

24. Variation

The Supplier and the Customer agree that modifications or amendments to these Conditions will only be made in writing and through the exchange of notices in writing and signed agreement by both parties.

 

25. Entire Agreement

These Conditions shall constitute the entire agreement between the Supplier and the Customer relating to the provision of the Goods and Services.  Any written or oral communication between the Supplier and the Customer (except for a Supplier Quotation) prior to the execution of these Conditions are voided.

PART B

26. Guarantee to the Supplier

(a) The Customer has requested the Supplier to facilitate the extension of credit terms to the Customer. The Customer acknowledges that the Customer will receive a valuable commercial benefit as a result of the Supplier facilitating the extension of credit terms.

(b) The Customer guarantees to the Supplier that the Customer will pay all amounts payable to the Supplier from time to time for the supply of Goods or Services to the Customer when they are due including interest and tax. The Customer’s guarantee continues until all these amounts have been paid in full.

(c) The Customer must pay the Supplier for its reasonable costs in administering (including enforcing or taking any other action in connection with its rights) this guarantee.

(d) The Customer remains liable to the Supplier under this guarantee and the Customer’s obligations under this guarantee will not be affected by any refusal by the Supplier to provide further credit to the Customer or a variation in the Supplier Ts&Cs between the Supplier and Customer.

(e) The Supplier may at any time release or discharge the Customer from this guarantee and give time for payment, accept any composition from or make any other arrangements with the Customer without releasing or discharging any other guarantor or otherwise prejudicing or affecting the Supplier’s rights and remedies against the Customer.

(f) As long as this guarantee remains in existence the Customer may not, without the Supplier’s consent, reduce the Customer’s liability under this guarantee by claiming that the Customer or any other person has a right of set-off or counterclaim against the Supplier.

(g) Where the Customer is a partnership no change in the constitution of the partnership shall affect, impair or discharge the liability of the Customer under this guarantee and indemnity whether past, present or future notwithstanding the provisions of any legislation or any other similar enactment in amendment, modification or substitution regulating partnerships.

(h) A statement in writing signed by an authorised officer of a Supplier setting out the moneys due or owing to the Supplier at the date of the statement shall be sufficient evidence of the amount so due or owing until the contrary is proven.

(i) If the Customer enters into this guarantee as a trustee of any trust, then the following provisions shall apply:

   (i) the Customer shall be personally liable for the performance of all obligations and undertakings under this guarantee;

   (ii) the Customer warrants that the Customer has full, complete and valid authority pursuant to the trust to enter into this guarantee;

(iii) notwithstanding that there is no reference to a specific trust, the Supplier’s rights of recourse shall extend to both the Customer’s assets personally and the assets of the trust;

(iv) the Customer undertakes to the Supplier that the Customer’s rights of indemnity against the trust assets have not been excluded by the provisions of the trust or by any breach of trust or otherwise and that the Customer will not release or otherwise prejudice such rights of indemnity.

(j) The Customer’s obligation to pay to the Supplier the amounts referred to under this document is a primary obligation and the Supplier is not obliged to proceed against or enforce any security or other right against the Customer or demand payment from the Customer before those amounts become due for payment.

 

27. Privacy disclosure and consent

The Customer authorises the Supplier to:

(a) obtain credit information about its personal, consumer and commercial credit worthiness from any bank or trade referee disclosed in this document and from any other credit provider or credit reporting agency for the purpose of assessing this application for credit, or in connection with any guarantee given by the Customer;

(b) use, disclose or exchange with other credit providers, information about the Customer’s credit arrangements in order to assess this application for credit, monitor credit worthiness and collect overdue accounts, and

(c) disclose the contents of any credit report on the Customer to the Supplier and other Related Bodies Corporate of the Supplier, and any of their solicitors and mercantile agents.

If the Customer does not provide the information requested in this document, the Supplier may be unable to process the application.

The Supplier complies with the privacy principles imposed by law in relation to the collection and disclosure of information regarding individuals.

 

28. Governing law

Parts A & B of these Conditions are governed by and are to be interpreted according to the laws in force in the state of Queensland and the parties submit to the non-exclusive jurisdiction of the courts operating in that state.