- Definitions:
“ACL” means The Australian Consumer Law as set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth).
“Confidential Information” means all information disclosed by a party for or in connection with the Permitted Purpose, including:
(a) Information that is designated or indicated as being the proprietary or confidential information of the disclosing party or its related entities.
(b) Information derived partly or wholly from the information of the disclosing party including any calculation, opinion, conclusion, summary, computer modelling or other materials:
(c) Know-how, formulae, data, specifications, drawings, trade secrets and other information which is capable of protection at law or in equity as confidential information; and
(d) Information on the particular services either party supplies to its Customers whether disclosed:
I. Orally, in writing or in electronic or machine-readable form;
II. Before, on or after the date of this agreement; or as a result of discussions between the parties concerning or arising out of the Permitted Purpose.
(e) Commencement Date” means the date of signing of this agreement.
“Customer” means the person or entity purchasing the Products as set out on page 1 Application for Provision of Services.
“Permitted Purpose” means the purpose(s) determined by the party disclosing the information, or such other purpose(s) as may be agreed between the parties
“Netstar Australia” means Netstar Australia Pty Ltd, a private company registered and incorporated in accordance with the laws of New South Wales with registration number ABN30 091 898 547 “Netstar Australia Web application means the Web SaaS applications available to Customers to monitor and Communicate with the active GPS Telematics units (Products) on the system.
“Subscription” means a monthly, quarterly, biannual or annual fee for the use of the Netstar Australia Web Application service and SIM data plan.
“PPSA” means the Personal Property Securities Act 2009 (Cth).
“Products” is defined as any hardware, software subscription or services provided to the Customer by Netstar Australia.
“Installation Worksheet” means the worksheet provided with products to be installed in vehicles
In this agreement, words importing the singular include the plural and vice versa, headings will be ignored in construing this agreement. If any party is comprised of more than one person, those persons’ obligations are joint and several, a reference to a party includes a reference to that party’s legal personal representatives, successors and permitted assigns, reference to a person’s include references to corporations and other bodies and entities, and references to statutes include all statutes amending, consolidating or replacing such statutes and includes any subordinated legislation issued under them. - Term:
This agreement commences on the commencement date and will continue as per the term of the agreement above, at the end of the term the term will be on a month by month basis unless otherwise agreed. If the product is leased, at the end of the term the Customer is required to pay any residual amounts owing. If the Product is rented, the Customer can choose at the end of the term to either upgrade hardware and enter into a new term, or enter into a new term with existing hardware. - Early Termination:
If a term is entered into then the Customer is responsible for all payments, including lease, rental and Subscription fees for the period of the term, whether the items are active or disposed. - Loss Of / Or Damage to Products that are Leased or Rented:
4.1 If the Products or any item or items of the Products (the “Affected Products”) are lost, stolen or damaged beyond economic repair, you must immediately notify us and within five (5) Business Days of such notification, you must replace the Affected Products at your cost with products or equipment approved by us (in our sole discretion) being at least equivalent in type, functionality and value.
4.2 If you replace the Affected Products in accordance with clause 4.1, then you must:
(a) Ensure that we obtain clear title to the replacement product or equipment.
(b) Notify us immediately in writing of the replacement and provide us with any information that we may request in relation to the replacement Products or equipment.
(c) Such replacement equipment or product will be taken to be the Product or the relevant item or items of the Product, as the case may be for the purposes of this agreement. - Products and Pricing:
a) Products and Pricing are as described on the quote document previously sent as an attachment. Products & Pricing have been provided on the basis of the Terms and Conditions as described in this document.
b) In this Agreement all prices quoted are exclusive of Goods and Services Tax (GST) when advertised on the site.
c) GST is added to the prices quoted at the checkout/shopping cart.
d) The Customer must pay the price of the Goods to Netstar immediately at the time of agreement or terms agreed to by the Customer and Netstar Australia.
e) Payment methods are specified on the Website at the time you place your Order. They may include Credit card or Paypal. We use a payment processer called Eway to process your online transaction on our behalf. For more information on Eway, please visit www.eway.com.au. If the issuer of your payment card refuses to authorise payment to us, we will not be liable for any delay or non-delivery.
f) The sale includes the hardware purchase and annual or monthly Subscription fees to access to the Netstar Australia Web application software. At the end of the 12-month period the Customer must continue paying an annual or monthly fee to use the Netstar Australia Web application. The Netstar sales or accounts team will be in contact with the Customer to arrange an ongoing direct debit payment. - Products and Delivery:
(a) Any delivery times made known to the Customer are estimates only. To the full extent permitted by the ACL and other applicable laws, Netstar Australia will not be liable for any loss, damage, or delay occasioned to the Customer or any other person arising from such late or non-delivery.
(b) The Customer acknowledges that all Products are sold delivered duty paid unless otherwise stated on the invoice.
(c) Delivery times made known to the Customer are estimates only and Netstar Australia is not liable for late delivery or non-delivery.
(d) Notwithstanding any other representations made by Netstar Australia concerning delivery, Netstar Australia is not liable for any loss, damage or delay of delivery occasioned to the Customer or its Customers arising from unavailability of stock, outages of servers or other information technology, delays of third-party couriers or other delivery personnel, unavailability of staff or any other factor outside of the reasonable control.
(e) Netstar may deliver the Goods to the Customer in any number of instalments. - Credit Assessment Activities:
(a) This clause shall apply if Netstar Australia wishes to obtain commercial credit information to assess the Customer’s application for consumer credit or to become a guarantor, or to obtain consumer credit information to assess the Customer’s application for the Customer’s commercial credit or to become a guarantor.
(b) For the purposes of this clause, “Individual” includes the Customer or a guarantor of the Customer’s obligations under this agreement.
(c) In accordance with applicable legislation (including, without limitation, the Privacy Act 1988 (Cth)) setting out obligations relating to privacy matters and personal information (the “Legislation”), if Netstar Australia considers it relevant to assessing the Individual’s application for commercial credit or to become a guarantor, or for the collection of overdue payments once commercial credit has been granted, the Individual hereby authorizes and consents to Netstar Australia obtaining from a credit reporting agency a credit report containing personal credit information about the Individual in relation to commercial credit provided by Netstar Australia or a business which provides information about the commercial creditworthiness of persons and information about the Individual’s commercial activities or commercial creditworthiness. If the Individual does not provide Netstar Australia with the personal information requested, Netstar Australia will be unable to assess the Individual’s application for personal or commercial credit. The types of organizations to which Netstar Australia usually discloses personal information include credit reporting agencies, government departments and authorities, insurers and underwriters, guarantors, agents, contractors, proposed assignees of Netstar Australia and other third parties associated with Netstar Australia to enable it to carry out its functions.
(d) The Individual authorizes and consents to Netstar Australia giving to a credit reporting agency certain personal information about the Individual’s credit application. Information which may be given to an agency includes; identity particulars; the fact that the Individual has applied for credit and the credit amount; the fact that Netstar Australia is a current credit provider to the Customer; details of payments which become overdue more than sixty (60) days and for which collection action has been commenced; the fact that payments are no longer overdue; details of cheques drawn by the Individual which have been dishonoured more than once; in specific circumstances, that in the opinion of Netstar Australia , the Individual has committed a serious credit infringement; the fact that credit provided to the Individual by Netstar Australia has been paid or otherwise discharged.
(e) The Individual authorizes and consents to Netstar Australia obtaining a credit report about the Individual from a credit reporting agency for the purpose of collecting overdue payments relating to commercial credit owed by the Individual.
(f) The Individual acknowledges that if the Individual would like to know more about: (i) the information which Netstar Australia holds about the Individual; (ii) the personal information handling practices of Netstar Australia ; (iii) gaining access to the personal information which Netstar Australia holds about the Individual; (iv) the handling of personal information by Netstar Australia about the Individual, the Individual may contact Netstar Australia at Netstar Australia contact details listed on the front of this agreement. - Retention of Title:
(a) Notwithstanding anything to the contrary contained in this agreement, until such time as the whole of the purchase price for the Products (and associated costs, duties and charges invoiced for the Products – (“Invoiced Cost”) have been received in clear funds by Netstar Australia ; full legal and equitable title in the Products (not including services) and ownership of the Products will be retained by Netstar Australia ;the Customer must hold the Products as fiduciary Bailee and agent for the Netstar Australia ; and the Customer must not sell or otherwise dispose of the Products (except to the extent permitted under this agreement).
(b) Until such time as the Invoiced Cost has been paid in full, in addition to its rights under the PPSA, Netstar Australia may enter the Customer’s premises (or the premises of any associated person where the Products are located) without liability for trespass or any resulting damage and retake possession of the Products. Netstar Australia may resell any Products that have been repossessed.
(c) If the Products are resold by the Customer, the Customer must hold such part of the proceeds of sale as represents the Invoiced Cost in a separate identifiable account as Netstar Australia beneficial property and pay such amount to Netstar Australia on request.
(d) Despite clauses 6(a) to 6(c) above, Netstar Australia will be entitled to maintain an action against the Customer for the Invoiced Cost.
(e) The Customer must provide Netstar Australia with any financial or other information relating to the financial condition, business, assets and affairs of the Customer as and when reasonably requested by Netstar Australia for the purposes of enabling Netstar Australia to determine whether the Netstar Australia’s right to receive moneys from the Customer under these terms and conditions is prejudiced for any reason.
(f) Risk in the Products shall pass to the Customer on delivery. - GST and Taxes:
Unless otherwise specified, all prices quoted are exclusive of product and services tax (“GST”) and other taxes. Except to the extent that any GST or other taxes have already been specifically included in the price, the Customer must pay the amount of any applicable GST or other taxes at the time of payment for the Products. - Warranties and Limitation of Liability
(a) Where the system operation is dependent on third party telecommunications infrastructure, landline, or radio communications service, to the full extent permitted by the ACL and other applicable laws, Netstar Australia shall not be responsible for system or product performance due to the unavailability of these telecommunications services. Similarly, to the full extent permitted by the ACL and other applicable laws, Netstar Australia shall not be responsible for the reliable operation of any equipment based on any form of radio technology where that equipment is operated in a fringe radio coverage area where the reliability and integrity of the radio signals may be unacceptable to Netstar Australia Pty Ltd.
(b) To the full extent permitted by the ACL and other applicable laws, any system or software performance is not warranted against failure, interruption, unavailability, or incorrect operation caused by computer malfunction or insufficient hard disk capacity when the Customer supplies the computer hardware.
(c) Where the Products include software, to the full extent permitted by the ACL and other applicable laws, Netstar Australia does not warrant that: 1. The software will run error-free, will run uninterruptedly or will meet the Customer’s data processing requirements. 2. The software will not contain any virus or other harmful code or device; or Installation or attempted installation of the software will not cause corruption to other programs or files stored on computer hardware or to any network.
(d) To the full extent permitted by the ACL and other applicable laws: 1. Netstar Australia excludes all express and implied terms, warranties, conditions and guarantees (other than the ones set out in this agreement) 2. in any event, Netstar Australia’s liability under or in relation to this agreement or the supply of the Products, is limited, at the option of Netstar Australia, to 3. In the case of product, to one or more of the following (as Netstar Australia determines): the repair of the equipment, the replacement of the equipment or the supply of equivalent equipment, or paying the cost of replacing the equipment or of acquiring equivalent equipment, or paying the cost of having the equipment repaired; or 4. In the case of services, to one or more of the following (as Netstar Australia determines): the supplying of those services again or paying the cost of having the services supplied again. 5. For the avoidance of doubt, nothing in this clause 8 is intended to exclude, restrict or modify any rights or remedies which the Customer may have under the ACL or any other applicable law which cannot be excluded, restricted or modified.
(e) To the full extent permitted by the ACL and other applicable laws, Netstar Australia is not liable in contract, tort including negligence), in equity, by operation of statute (to the extent liability may be excluded by law) or otherwise for any kind of indirect or consequential loss or damage, loss of opportunity, loss of revenue, loss of profit or anticipated profit, loss of contracts, loss of goodwill or loss arising from business interruption arising out of or in connection with this agreement incurred or suffered by the Customer or any other person. - Termination:
A party (“first party”) may terminate this agreement with immediate effect by giving notice to the other party if:
that other party breaches any payment obligation under this agreement capable of remedy and fails to remedy the breach within 7 days after receiving notice from the first party requiring that other party to do so; that other party breaches any other material term of this agreement capable of remedy and fails to remedy the breach within 30 days after receiving notice requiring it to do so; that other party enters into, or any steps are taken to have the other party enter into, liquidation, provisional liquidation, receivership, receivership and management, administration, bankruptcy or any arrangement, reconstruction or composition with that other party’s creditors or any of them, or a controller is appointed with respect to any of that other party’s assets, that other party becomes unable to pay its debts to any person as they become due or that other party otherwise becomes insolvent.
A party (“first party”) will notify the other party immediately if:
(a) The first party disposes of the whole or any part of its assets, operations or business other than in the normal course of business (other than a voluntary liquidation for the purpose of amalgamation or reconstruction if the new company assumes all of the first party’s obligations under this agreement);
(b) Any step is taken to enter into any arrangement between the first party and its creditors.
(c) The first party ceases to be able to pay its debts as they become due.
(d) The first party ceases to carry on business or any step is taken by a mortgagee to enter into possession or dispose of the who
(e) or any part of the first party’s assets or business.
(f) Any step is taken to appoint a receiver, a receiver and manager, a trustee in bankruptcy, a liquidator, a provisional liquidator, an administrator or other like person of the whole or any party of the first party’s assets or business; or any step is taken against it by any government, government body or regulator for any unlawful reduction in its assets or the funds under its control.
Promptly after termination:
(a) Netstar Australia will return to the Customer, at the Customer’s expense, any of the Customer’s freight or property in Netstar Australia Pty Ltd’ or its subcontractors’ possession or control.
(b) The Customer will pay Netstar Australia for all Products supplied to the Customer up to and on termination.
(c) If there is a Term for this agreement and the agreement has been terminated early for whatsoever reason, the Customer will pay Netstar Australia any outstanding lease or rental Payments, Subscription and Residual Fees up until the end of the term stated in this agreement.
(d) Each party will return to the other party all Confidential Information of that other party in material form (including without limitation, those parts of all notes and other records of the first party containing Confidential Information of the other party) in its possession or control.
(e) After termination of this agreement a party will not use, disclose, record, sell or otherwise transfer any Confidential Information of the other party.
(f) Termination of this agreement is without prejudice to any remedies available to the party terminating and any rights or obligations of the parties that accrued prior to the time of termination (except as otherwise provided under this agreement).
- Personal Property Securities Act:
(a) The Customer must, at its cost, do or cause to be done anything (such as obtaining consents, completing, signing and producing documents and supplying information) which Netstar Australia requests and considers necessary or desirable for the purposes of: 1. Ensuring that each security interest provided by this agreement is enforceable, attached, perfected, protected and otherwise effective; 2. Enabling Netstar Australia to apply for any registration, or give any notification, in connection with each such security interest so that that security interest has the priority required by Netstar Australia Pty Ltd; and 3. Enabling Netstar Australia to exercise rights in connection with each such security interest.
(b) The Customer acknowledges and agrees that Netstar Australia may register one or more financing statements in relation to any security interest provided for by this agreement. If permitted by the PPSA, the Customer waives its right to receive notice of any verification statement relating to the registration of any such financing statement or any related financing change statement:
(c) To the extent that Chapter 4 of the PPSA would otherwise apply, the Customer and Netstar Australia agrees that the following provisions of the PPSA do not apply: 1. To the extent that section 115(1) of the PPSA allows them to be excluded: sections 95, 118, 121(4), 125, 129(2) and (3), 130, 132(3)(d), 132(4), 135, 138B(4), 142 and 143; and 2. In addition, to the extent that section 115(7) of the PPSA allows them to be excluded: sections 127, 129(2) and (3), 132, 134(2), 135, 136(3), 136(4), 136(5) and 137. 3. The Customer agrees that at any time after any security interest provided for by this agreement has become enforceable, Netstar Australia may delay disposing of, or taking action to retain, the whole or part of the relevant property to the extent permitted by law.
(d) Unless agreed to by Netstar Australia in writing, the Customer acknowledges and agrees that Netstar Australia has not agreed to subordinate any security interest provided for by this agreement in favour of any third party.
(e) Subject to section 275(7) of the PPSA, neither the Customer nor Netstar Australia may disclose information of the kind referred to in section 275(1) of the PPSA, nor is Netstar Australia not required to respond to a request for information made in accordance with section 275(1) of the PPSA, unless otherwise agreed in writing.
(f) For the purposes of this agreement, terms defined in the PPSA have the same meaning in this agreement - General:
(a) The Customer agrees to the Terms and Conditions posted on the Netstar Australia website at https://netstataustralia.com.au Web Application which shall apply to this agreement as if set out in full in this document
(b) To the full extent permitted by law, Netstar Australia will not be liable for any delay or failure to perform its obligations under this agreement to the extent that such delay or failure is due to any cause beyond the reasonable control of Netstar Australia Pty Ltd.
(c) This agreement supersedes and replaces any arrangements, representations, understanding or agreements made or existing between Netstar Australia and the Customer in relation to the subject matter of this agreement and shall (except as otherwise may be agreed in writing) constitute the entire agreement relating to the supply of Products by Netstar Australia to the Customer.
(d) This agreement will be construed in accordance with the laws of New South Wales, Australia.
(e) The Customer must not assign or otherwise transfer or attempt to assign any right or obligation under this agreement without Netstar Australia Pty Ltd’ prior written consent.
(f) Netstar Australia reserves the right to vary this agreement at any time. It is the Customer’s responsibility to check the printed terms and conditions accompanying or included with any quote, invoice or order confirmation.
(g) This agreement binds the parties and their respective legal personal representatives, successors, and permitted assign.
14 Returns, refunds and exchanges.
a) Netstar Australia will not refund for change of mind. In the event that the vehicle tracking unit malfunctions or is defective in the first 12 months from original invoice date, through no fault of the Customer, Netstar Australia will replace the unit at no additional charge at a time and place mutually convenient to the Customer and Netstar Australia or its agents.
15 Faulty or Defective Products
a) If you receive a faulty product, return it to Netstar Australia within 14 days of purchase and we will inspect the product and if we agree that the product is faulty and unlikely to have occurred through misuse, we will, with your agreement, repair or replace the product with an identical product. If we are unable to provide you with an identical product, we will recommend available alternatives or alternatively provide you with a credit or refund the purchase price at our election.
Last updated 11/4/2023