Fleet Track NZ Limited — General Terms and Conditions
Effective Date: 23 March 2024
GENERAL
1. Definitions and Interpretation
In these Conditions, the Rate Schedule and every Quote, Order, Plan, Subscription, contract, or other arrangement in connection with the supply of Goods or Services by Fleet Track NZ Limited, the following words have the following meanings:
“Business Hours” means Monday to Friday from 08:30 to 17:00 hours excluding Public Holidays.
“Client”, “You” or “Your” means a person who seeks or obtains a quote for, or who orders, Goods or Services from Us, and includes both a person whose name is on the Order or on an email to which an order is attached, a person who places an order, and a person on whose behalf an Order is placed or appears to be placed, and in any case each of their heirs, successors and assigns.
“Conditions” means these terms and conditions.
“Connected Networks” means the mobile data, cellular and satellite networks that the Hardware uses to transmit and receive data, including mobile carrier networks, satellite network providers and the GPS network.
“Customer Data” means the location, telemetry and other data collected by the Hardware and displayed within or stored by the Platform, together with any information You upload to or input into the Platform.
“Goods” means any goods and/or services sourced or provided by Us, including the Hardware, SIM Cards, Software and any goods or services provided in connection with any of those things.
“GST” has the meaning given in the Goods and Services Tax Act 1985 (NZ).
“Hardware” means the GPS tracking, telematics and communications devices, accessories and SIM Cards supplied by Us to enable You to monitor Your vehicles, assets or equipment, whether owned by You or rented from Us.
“Installation Date” means the date the Hardware is installed and capable of providing the Services, regardless of completion of installation, unless otherwise agreed by Us in writing.
“Intellectual Property” means copyright, patents, designs, trade marks, trade names, goodwill, trade secrets, data, confidential information and any other intellectual property right or form of intellectual property, including the configuration of the Hardware.
“Order” means any order requested by You to Us for Goods or Services in any form.
“Platform” means the Fleet Track web-based and/or mobile GPS tracking and telematics platform through which the Services are delivered.
“Plan” / “Subscription” means any arrangement between Us and You for the ongoing provision of the Services and/or Goods, including as set out in a Plan Schedule, and including the recurring fees payable for access to the Platform.
“Plan Schedule” means the key terms applicable to Plans as set, and as may be varied, by Us from time to time.
“Professionally Installed” means installed by Us or by an installer approved by Us, in accordance with New Zealand Standards, all relevant regulatory requirements and the manufacturer’s instructions.
“Public Holidays” means public holidays in New Zealand as defined by the Holidays Act 2003.
“Quote” means a quote provided to You by Us.
“Rates” / “Rate Schedule” means the schedule of rates, charges and conditions for Goods and Services as set, and as may be varied, by Us from time to time.
“Rental Hardware” means Hardware supplied to You on a rental basis, where title remains with Us, as expressly stated in the Quote or Order.
“Services” means the telematics, GPS tracking and related services provided by Us, including access to the Platform, monitoring, alerts, reporting, support and any Work.
“SIM Card” means any SIM card supplied by Us or Our telecommunications provider(s) and installed in the Hardware.
“Software” means any firmware or software installed on or in connection with the Hardware or the Platform, and any installation, update or associated software.
“Us”, “Our” or “We” means Fleet Track NZ Limited.
“Work” means anything We may do, provide, customise, produce or acquire in connection with the Goods or Services, including testing, troubleshooting, installation, configuration, consulting, scoping, planning, documenting and quoting.
In these Conditions, unless the contrary intention appears: words in the singular include the plural and vice versa; a reference to any gender includes every other gender; a reference to any Act, Statute or Regulation includes any amendment in force at the relevant time and any enactment passed in substitution; headings and bold words are for convenience only and do not affect interpretation; all references to dollars ($) are to New Zealand Dollars (NZD); a reference to time is to New Zealand Time; a reference to a person includes a corporation, partnership, joint venture, association, authority, trust, state or government and vice versa; “includes” means includes without limitation; “will” imports a condition not a warranty; and a reference to bankruptcy or winding up includes liquidation, dissolution, administration and anything analogous under any applicable jurisdiction.
2. Application of these Conditions
Unless otherwise agreed by Us in writing, these Conditions are deemed incorporated in and applicable to (and to the extent of any inconsistency will prevail over) the terms of every Quote, Order, Plan, Subscription, contract or other arrangement in connection with the supply of Goods and/or Services by Us to You.
The invalidity or unenforceability of any one or more provisions of these Conditions will not invalidate or render unenforceable the remaining provisions.
3. Commitment Term
3.1 The Subscription commences on the Installation Date (or, where there is more than one piece of Hardware, the Installation Date of the first piece of Hardware) and, unless a fixed minimum term is specified in Our Quote, continues on a month-to-month basis.
3.2 Where a fixed minimum term is specified in Our Quote, the term will automatically renew on a month-to-month basis on expiry of that minimum term, unless earlier terminated in accordance with Clause 4.
3.3 Either party may terminate a month-to-month Subscription by giving the other no less than thirty-one (31) days’ written notice. Where a fixed minimum term applies, Clause 4.4 governs early termination within that term.
4. Termination
4.1 You may terminate this Agreement upon ninety (90) days’ written notice if We:
4.1.1 fail to fulfil in any material respect Our obligations under this Agreement and do not cure such failure within thirty (30) days of receipt of written notice;
4.1.2 breach any material term or condition of this Agreement and fail to remedy such breach within thirty (30) days of receipt of written notice; or
4.1.3 terminate or suspend Our business operations, unless succeeded by a permitted assignee.
4.2 We may terminate this Agreement upon ninety (90) days’ written notice to You.
4.3 If either party terminates this Agreement, We will assist You in the orderly termination of the Services, including timely transfer to another designated provider. You agree to pay Us for rendering such assistance at Our normal Rates.
4.4 Should You wish to terminate this Agreement before the end of the committed term, You agree to pay all remaining Subscription payments up until the end of the committed term.
4.5 On termination, and in addition to any other obligation under these Conditions:
4.5.1 You must pay any outstanding fees for Goods and Services, including fees for any notice period;
4.5.2 where the Hardware is Rental Hardware, You must arrange for its removal by an installer approved by Us and return it to Us; the costs of removal and return are Your responsibility and chargeable at Our current Rates;
4.5.3 You must return any SIM Card to Us undamaged and in working condition within one (1) calendar month of notice to terminate, failing which You will incur a SIM termination fee of $60 plus GST; and
4.5.4 if the Hardware is not decommissioned on termination, any subsequent use of the SIM Card or Connected Networks by the Hardware (including outgoing data, SMS or calls) is Your responsibility, and We are not responsible for any failure to provide the Services arising from such use.
5. Representations
5.1 You acknowledge that no employee or agent of Ours has any right to make any representation, warranty or promise in relation to the supply of Goods or Services other than as contained in these Conditions.
6. Notices
6.1 Any notices given under these Conditions must be in writing and sent by email to the last notified email address of the other party.
6.2 A notice is deemed received when the sender’s email system records successful transmission, if sent during Business Hours on a Business Day, otherwise at 9:00am on the next Business Day.
7. Governing Law
7.1 These Conditions are governed by New Zealand law, and the parties submit to the non-exclusive jurisdiction of the courts of New Zealand.
8. Assignment
8.1 You may not assign Your rights and obligations under this Agreement without Our prior written consent. We may assign, novate or subcontract any of Our rights or obligations without Your consent.
9. Variation of these Terms and Conditions
9.1 We may at any time vary these Terms and Conditions by publishing the varied Terms and Conditions on Our website. You accept that by doing so We have provided You with sufficient notice of the variation, and We are under no other obligation to notify You of any variation.
GOODS AND SERVICES
10. Quotes
10.1 Term and effect: Quotes are valid for thirty (30) days unless otherwise specified. A Quote is an invitation to You to place an Order, and acceptance of a Quote does not of itself create a binding contract until accepted by Us.
10.2 Once a Quote has been confirmed by Us, the prices in the Quote are confirmed as the final agreed price. A Quote is confirmed as ‘final’ once both parties agree the final price after any last changes requested by You.
10.3 The price in the final Quote may vary from the original request where any price or product change is requested by You. We reserve the right to alter products and prices in the Quote until it has been confirmed.
10.4 Quotes and estimates are deemed to correctly interpret the original specifications and are based on costs at the time the Quote is given. Changes later requested by You, where We agree to them, will be charged at Our prevailing Rate.
10.5 Once the Quote is confirmed and converted to an Order, the Order is subject to these Conditions.
10.6 When a special price or discount has been applied to a Quote, no other promotion, discount or bonus offer will apply.
10.7 Where products in a Quote are subject to price or supply fluctuations outside Our control, We reserve the right to update the price and product accordingly. Where a product is no longer available, it will be replaced or substituted based on Your request and subject to Your final approval.
10.8 The fact that a Quote has been given, and its contents, are commercially sensitive and confidential to Us, and may not be disclosed to any person without Our prior written consent.
10.9 We may vary or withdraw a Quote at any time before You accept it in writing, including where Goods or Services become unavailable or the cost price increases.
11. Orders
11.1 Order forms: You may place an Order for Goods and/or Services with Us. Normally We require that You provide a completed purchase order, or approve the Quote electronically via email or a web-based system, with the date and Your details, including Your full legal name, any applicable NZBN or Company Number, and Your address together with any relevant Quote number and date.
11.2 Approval of Orders: Where an Order is sent by email or via the web-based ordering system, it will be treated as if signed by or on behalf of You by the person whose name appears as the sender of the email or submitter of the form.
11.3 Reliance on validity: Absent actual knowledge to the contrary, We may rely upon the apparent validity of an Order. Any named person submitting an Order warrants that it is duly authorised by them and by any person on whose behalf it is placed.
11.4 Credit checks: You consent to Us undertaking a credit reference check for the purposes of ascertaining Your credit standing where We are considering extending credit or payment terms. We do so in accordance with the Credit Reporting Privacy Code 2020.
11.5 Cancellation of Orders: You may not cancel an Order unless We agree in writing in Our absolute discretion. You acknowledge that We cannot cancel an Order once the manufacturer or supplier has despatched the relevant Goods.
11.6 Processes and procedures: You agree to co-operate with Us and comply with such processes and procedures as We advise from time to time in the course of providing the Goods and Services.
12. Pricing and Rates
12.1 Rates exclude GST: All rates and amounts charged or quoted for Goods and/or Services are exclusive of GST, and of any credit card merchant or processing fees, unless stated otherwise.
12.2 Subscription and Rate Schedule: You must pay for Goods and Services at the Rates set out in any applicable Plan and the Rate Schedule. Subscription fees for the Services are billed in advance on a recurring basis from the Installation Date.
12.3 Vary Rates: We reserve the right to vary any Rate and/or the Rate Schedule from time to time (subject to any fixed pricing for specific periods in a Plan). Where a variation results in You being materially disadvantaged, We will give You no less than thirty (30) days’ written notice, during which You may terminate without penalty by written notice.
12.4 Call-out and installation fees: Call-out, installation, removal and re-installation fees may be charged in addition to the Rates, depending on where the Services are provided.
12.5 Return/Cancellation Fee: Where We arrange a return or refund on Your behalf, or where an Order is cancelled by You after acceptance, We may charge a Return/Cancellation fee to cover administration costs, and may deduct it from any monies otherwise due to be refunded to You.
12.6 Expenses: You must pay any out-of-pocket expenses incurred by Us in providing the Services in addition to the Rates, including travel, flights, vehicle hire, fuel, accommodation, tolls and parking. Where appropriate We will obtain prior written authorisation before incurring such expenses.
12.7 Calculation of increments: Where a charge is calculated in increments of time, We will charge the applicable Rate for the whole increment even where work is done for only part of it.
12.8 Change in underlying costs: Where there is any increase in the underlying costs incurred by Us in connection with the supply of Goods or Services, We may, in Our absolute discretion, vary Our Rates.
12.9 Annual review: The fees for the Services are subject to annual review and may be adjusted in line with the New Zealand Consumers Price Index (CPI) or an equivalent measure of inflation. Where an increase exceeds CPI significantly, We will give You no less than thirty (30) days’ prior written notice.
12.10 Suspension of tracking: Where You do not require an asset tracked (for example, seasonal machinery), We may agree in Our sole discretion to a reduced monthly suspension rate to retain the active status of the SIM Card and avoid SIM termination fees.
13. Services and Plans
13.1 Service and Plan variations: We offer the Services and Plans referred to in the Rate Schedule and any Plan Schedule. We may withdraw, vary the scope or terms of, add to or change the Services from time to time in Our absolute discretion. Where a change results in material detriment to You, You may terminate in accordance with Clause 4.
13.2 Platform access: We will provide You with secure access to the Platform to monitor Your assets to the best ability of the Hardware and Connected Network coverage, to obtain stored GPS data records, and to receive alerts You select via SMS, email or other means. You are responsible for entering correct information to receive alerts.
13.3 Copies on request: We will provide You with a copy of the current Rate Schedule upon request. Plan Schedules are tailored for particular Plans and available to Clients participating in the Plan.
14. Contracting and Installation
14.1 We may appoint related companies or vetted subcontractors for any or all of the Services to be performed. We remain responsible for their acts and omissions as if Our own.
14.2 Hardware must be Professionally Installed. Where You arrange installation other than through Us, You must engage a suitably qualified installer at Your cost, and the warranty in Clause 17 is conditional on Professional Installation.
15. Delivery, Title and Risk
15.1 Delivery liability: We will use all reasonable endeavours to despatch Hardware by the due date but do not accept liability for non-delivery or late delivery caused by circumstances beyond Our reasonable control, including failures in supply or delays caused by third parties.
15.2 Passing of risk: Risk in the Hardware passes to You on delivery, being the earlier of when the Hardware arrives at Your nominated address (whether or not You are present) or when You take possession. From that time You are responsible for insuring the Hardware.
15.3 Title to purchased Hardware: Where Hardware is purchased by You, title to and property in that Hardware remains vested in Us until We receive payment in cleared funds of all amounts owing on any account. The retention-of-title and security provisions in Clause 16 apply until then.
15.4 Rental Hardware: Title to Rental Hardware remains with Us at all times. You may not sell, dispose of, encumber or remove Rental Hardware except as permitted by these Conditions, and You must return it on termination in accordance with Clause 4.5.
16. Retention of Title and Security Interest
16.1 Until We receive full payment in cleared funds for all monies due to Us by You on any account:
16.1.1 title to and property in purchased Hardware remains vested in Us and does not pass to You;
16.1.2 You must hold such Hardware as fiduciary bailee and agent for Us and must not sell it;
16.1.3 where You sell such Hardware in breach of these Conditions, You must hold the proceeds on trust for Us in a separate account;
16.1.4 We may, without prior notice, enter any premises where We suspect such Hardware may be, take possession of it and remove it, and You irrevocably authorise Us (and Our employees and agents) to do so and indemnify Us against any claims arising from such entry, repossession or removal; and
16.1.5 You irrevocably appoint Us as Your attorney to do anything We consider necessary to enter such premises and repossess the Hardware.
16.2 You grant Us a security interest under the Personal Property Securities Act 1999 (NZ) (PPSA) in the Hardware (including Rental Hardware) and its proceeds to secure all amounts owing. You will do all things We reasonably require to enable Us to register and maintain a perfected first-ranking security interest on the PPSR. To the extent permitted, You waive Your rights under sections 114(1)(a), 116, 120(2), 121, 125, 126, 127, 129, 131 and 133 of the PPSA, and waive Your right to receive a verification statement.
17. Hardware Warranty, Maintenance and SIM Cards
17.1 Warranty: Where Hardware has been Professionally Installed, We warrant the Hardware against defects in materials or workmanship for a period of two (2) years from the Installation Date, provided that all amounts owing under this Agreement are paid and up to date. Hardware that has not been Professionally Installed is not covered by this warranty.
17.2 Warranty exclusions: The warranty does not cover general wear and tear, cosmetic damage, moisture damage, physical damage, tampering, electrical damage, abuse, misuse, neglect, unauthorised modification or repair, failure to follow installation or user manuals, failure to follow the manufacturer’s instructions of the vehicle or asset, an act of God, or Hardware that has been altered, defaced or had its product label removed. Consequential and incidental damages are not coverable under this warranty.
17.3 Third-party hardware: Any Hardware not supplied by Us carries only the warranty stated in the manufacturer’s documentation, and You will deal directly with that manufacturer for warranty claims.
17.4 No warranty of Connected Networks: We do not warrant that any third party will continue to operate the cellular network, satellite network or other telecommunications infrastructure needed to operate the Hardware or deliver the Services.
17.5 Customer-owned Hardware: Unless expressly stated in the Quote or Order to be Rental Hardware, the Hardware is owned by You. We do not guarantee Hardware that is owned by You beyond the warranty in Clause 17.1, and the warranty does not cover any component of the asset (such as wiring or batteries) to which the Hardware is fitted.
17.6 Maintenance commitment: While You hold an active Subscription with Us and Your account is in good standing, We will maintain the Hardware to a high standard and use commercially reasonable endeavours to keep it operating correctly on the Platform. This commitment does not extend to fault, damage or non-performance arising from any cause set out in Clause 17.2, or to use of the Hardware otherwise than on the Platform.
17.7 Platform-only use: The Hardware is supplied, configured and guaranteed for use on the Fleet Track Platform only. We give no warranty and accept no responsibility for the Hardware’s performance, compatibility or fitness for use on any other platform or system.
17.8 SIM Cards: Any SIM Card supplied by Us or Our telecommunications provider(s) remains the property of Us or that provider at all times. You must not remove the SIM Card from the Hardware (except on termination), use it in any other device, or use it for any purpose other than operation of the Hardware on the Platform. Where You breach this clause, We may recoup from You any charges incurred through misuse, and may suspend the Services or repossess the SIM Card and Hardware. Our telecommunications provider(s) may send updates or upgrades to the SIM Card by any means, and You consent to the same.
18. Configuration and Intellectual Property
18.1 We (or Our suppliers) are and remain at all times the sole owner of all Intellectual Property rights in the Hardware, the Software, the Platform and the configuration of the Hardware units. Nothing in these Conditions transfers any such Intellectual Property to You.
18.2 We grant You a non-exclusive, non-transferable licence, for the term of Your Subscription, to access and use the Platform and Software solely for the purpose of receiving the Services.
18.3 You must not, nor permit any other person to: copy, alter, modify, reproduce, reverse assemble or reverse compile the Software or Hardware configuration; remove or tamper with any trade marks, proprietary notices or identifying numbers; or make the Software or Platform available to any unauthorised person.
18.4 All copyright and other Intellectual Property rights in any Work created, commissioned or acquired by Us in the course of supplying the Services will be the exclusive property of Ours unless otherwise agreed in writing.
19. Service Availability and Customer Acknowledgements
19.1 Best endeavours, no guarantee: We will use commercially reasonable endeavours to make the Platform and Services available and to keep any suspensions or outages as short as practicable. We do not, however, guarantee continuous, uninterrupted or error-free availability of the Platform or Services, as these depend on the Hardware, the Connected Networks and other third-party infrastructure that We do not control.
19.2 Maintenance: From time to time the Services may be unavailable to allow for upgrades or maintenance. We will use reasonable endeavours to advise You in advance where practicable.
19.3 Not insurance; no guarantee of recovery: The Services and Hardware are intended to assist with and enhance Your security, fleet management and risk management. We give no guarantee against theft, loss or recovery of any asset, or that any incident will or will not occur. The Services are not a policy of insurance nor a substitute for one, and nothing in these Conditions constitutes Us as an insurer.
19.4 Safety aid only: Where the Services include any driver-safety or driver-behaviour feature, You acknowledge it is a safety aid only, and You must always follow the manufacturer’s instructions of the vehicle for safe operation.
19.5 Customer monitoring: You must monitor Your Hardware and the Services received and notify Us of any faults as soon as reasonably possible.
19.6 Reports and data: We strongly recommend that You regularly generate, export and securely store any reports or records containing data of importance to You (including data containing personal or sensitive information). You acknowledge that stored location and telemetry data is retained and accessible on the Platform for a period of up to three (3) years, depending on Your Plan, after which it may be deleted from the active Platform. Data may be retained for an additional period within Our backup rotations before final deletion.
20. Force Majeure
20.1 If We are unable to supply any Goods or Services due to circumstances beyond Our reasonable control, We may cancel the Order (even if already accepted) or cease to provide the Services by written notice to You, in which case You will hold Us harmless.
20.2 We will not be liable for any breach of contract due to any matter beyond Our reasonable control, including failures by third parties to supply goods, services or transport, stoppages, transport breakdown, fire, flood, earthquake, acts of God, strikes, lock-outs, work stoppages, wars, riots or civil commotion, epidemics or pandemics, breakdown of communication facilities, intervention of public authority, explosion or accident.
21. Account Security
21.1 You are responsible for maintaining the confidentiality and security of all login credentials issued to or created by You and Your users for the Platform, including the use of strong passwords and, where available, multi-factor authentication.
21.2 You are responsible for all activity that occurs under Your account and that of Your users. Administrator users are responsible for inviting and maintaining their own users, each of whom must have a valid email address.
21.3 To the maximum extent permitted by law, We are not liable for any loss, damage or unauthorised access arising from any failure by You or Your users to keep credentials secure, to use adequate passwords, or to follow reasonable security practices.
22. Warranties and Liability
22.1 Business acquisition / CGA: Nothing in these Conditions limits any rights You have under the Fair Trading Act 1986 or the Consumer Guarantees Act 1993. However, where You acquire Goods or Services for business purposes, You agree that the Consumer Guarantees Act 1993 does not apply, and that sections 9, 12A and 13 of the Fair Trading Act 1986 do not apply to this Agreement.
22.2 Exclusion: Except as specifically set out herein and so far as permitted by law, any term, condition or warranty in respect of the quality, fitness for purpose, condition, description, manufacture, design or performance of the Goods or Services, whether implied by statute, common law, trade usage, custom or otherwise, is expressly excluded.
22.3 No liability for program or data loss: You indemnify and hold Us harmless in respect of any allegation, claim, loss or expense of Yours or any third party for any program or data loss or damage arising directly or indirectly from the supply of the Goods or Services. You acknowledge You are solely responsible for backing up Your programs and data.
22.4 Consequential loss: You indemnify and hold Us harmless in respect of any indirect or consequential losses or expenses suffered by You or any third party, howsoever caused, including loss of turnover, profits, business, revenue, production, contracts or goodwill.
22.5 General limit on liability: Except as expressly stated in these Conditions, We are not liable for any loss or damage of any kind however caused (including by Our negligence) suffered or incurred by You in connection with: the Goods, Services or any Work; these Conditions; Your use of Our website or Platform or any linked website; the non-availability of the Goods or Services for any reason; any act or omission of Ours or the provision of inaccurate, incomplete or incorrect information by You; or for any other reason whatsoever.
22.6 Limitation options: To the extent any legislation implies a condition or warranty that cannot be excluded but can be limited, Clause 22.5 does not apply to that liability, and Our liability is limited, at Our election, to one or more of: replacing the Goods or supplying equivalent Goods or Services; repairing the Goods or Work; paying the cost of replacement or acquiring equivalent Goods, Services or Work; or paying the cost of repair.
22.7 Aggregate cap: In any event, Our maximum aggregate liability to You for any claim under or in connection with this Agreement will not exceed the net amount paid by You for the Hardware to which the claim relates as set out in the relevant Quote or Order.
22.8 Network availability indemnity: You acknowledge that the Connected Networks do not have guaranteed uninterrupted availability. You agree to indemnify and hold harmless Us, Our telecommunications supplier(s) and Our respective affiliates, directors, officers and employees from any claim, suit, damage or expense arising from use of the Services in a way that requires uninterrupted availability of a Connected Network, where interruption causes death, personal injury or property damage.
22.9 Laws still apply: Nothing in these Conditions is to be interpreted as excluding, restricting or modifying the application of any legislation that cannot lawfully be excluded, restricted or modified.
22.10 Severance: If any provision of these Conditions is unlawful, invalid or unenforceable, that provision may be severed without prejudice to the validity and enforceability of the remaining provisions.
22.11 Time limit on claims: No action may be brought against Us unless notice of the claim is given to Us within two (2) weeks of the relevant installation or provision of the relevant Services, and proceedings are brought in a court of competent jurisdiction within one (1) year of that date.
23. Errors and Omissions
23.1 We make every effort to ensure all prices and descriptions quoted are correct. In the case of an error or omission, We may rescind the affected contract by written notice to You, notwithstanding that We have already accepted Your Order and/or received payment. Our liability in that event is limited to the return of any money You have paid in respect of the Order.
OUR RESPONSIBILITIES
24. Privacy and Your Rights
24.1 We collect Your personal information for the fulfilment of Quotes, Orders and the provision of Goods or Services to You, and may retain and use it for those purposes (“Authorised Purposes”).
24.2 We collect, use and disclose personal information in accordance with the Privacy Act 2020 and the Information Privacy Principles, and in accordance with Our Privacy Policy published on Our website. If a notifiable privacy breach occurs, We will notify affected individuals and the Office of the Privacy Commissioner as required by law. Some service providers may be located offshore; where used, We will take reasonable steps to ensure comparable safeguards protect personal information.
24.3 As between You and Us, You own the Customer Data. You grant Us a licence to use the Customer Data during the term to perform Our obligations and enforce Our rights under this Agreement, and You acknowledge that You are responsible for ensuring Your employees and other affected individuals are aware of the collection, use and disclosure of any personal information.
24.4 We may anonymise and aggregate Customer Data to generate statistical or analytical data, which is owned by Us and may be used or disclosed by Us.
24.5 We may disclose Your personal information (including GPS tracking information) to service providers who assist Us in delivering the Services, to Our telecommunications and Hardware suppliers (who may by necessity see some data), and to government authorities under statutory obligation. Otherwise We will not disclose Your personal information without Your consent unless authorised by law.
24.6 Where We use credit reporters, We do so in accordance with the Credit Reporting Privacy Code 2020.
24.7 You may request access to, and correction of, the personal information We hold about You by contacting Us.
25. Our Website and Platform
25.1 We make no representations or warranties in relation to information available on Our website or Platform, including that it is complete or correct, or that the website or Platform will be continuously available or free from delay, virus, communications failure, access difficulty or malfunction. We do not endorse any third-party site linked to, or third-party products or services referred to on, Our website or Platform.
26. Insurance Coverage
26.1 We will maintain, at Our own expense, commercial general liability insurance for personal injury and property damage. At Your request We will provide certificates evidencing such coverage within thirty (30) days of commencing this Agreement and at renewal.
YOUR RESPONSIBILITIES
27. Lodging of Service Requests
27.1 In order for Us to provide You with the agreed Services, You agree to follow Our process for lodging Service Requests as outlined in Appendix A.
28. Access to Systems, Sites and People
28.1 You agree to give Us access to Your equipment, people, sites and assets as and when reasonably required to provide the Services, including for installation, maintenance, repair, upgrade and decommissioning of Hardware.
28.2 You acknowledge that You are responsible for ensuring You have obtained all permissions and consents necessary in relation to use of the Hardware and Services, including under privacy and employment law, in particular where the Hardware monitors vehicles or assets used by Your employees.
28.3 You must not install or fit Hardware to any asset You do not own, lease or rent, unless You have the owner’s permission to do so.
29. Third Party Authorisations
29.1 At times We may need to contact Your third-party providers on Your behalf, such as Your telecommunications or internet provider. Some providers may require Your authorisation for Us to deal on Your behalf. It is Your responsibility to ensure We are able to deal freely with those providers.
30. Payment, Late Payment and Default
30.1 Payment due date: All invoices are due and payable within the terms stated on the invoice (unless otherwise agreed in writing), by credit card or direct deposit. Subscription fees are payable in advance. Where You pay by credit card, We may pass on any merchant or processing fees.
30.2 Set-off: You must make all payments in full without deduction of any nature, whether by set-off, counterclaim or other claim, and without deduction of any taxes or government charges.
30.3 Disputed charges: If You consider there is a mistake in the calculation of any charge, You must notify Us within ten (10) Business Days of the invoice. You must pay the charges, including any disputed part, by the due date regardless. If there is a mistake, We will adjust a later invoice or reverse the transaction as appropriate.
30.4 7 days late: Where You fail to pay an invoice within seven (7) days of the due date, We may, in Our absolute discretion and without prior notice, suspend or discontinue the supply of Goods and/or Services, including disabling access to the Platform.
30.5 Recoveries: All legal and other costs and expenses incurred in connection with the recovery of late payments (including debt collection and legal costs on a solicitor-client basis) will be added to the amount due. If You default in payment of any invoice on time, monies which would otherwise become due at a later date are immediately due and payable without further notice. All such monies are referred to as a “Sum Due”.
30.6 Interest: If any Sum Due is not paid on time, We may charge interest compounding monthly on the unpaid overdue balance at a rate of 2% per month, with a minimum of $20, until paid in full.
30.7 Application of funds: All payments of the Sum Due are applied: first towards costs (including legal costs), charges and expenses incurred in recovery; secondly towards interest; and thirdly towards Your debts in order from longest standing to most recently incurred.
30.8 Security: We may require You to provide security over Your property as collateral for any Sum Due or as a condition of continued supply.
30.9 Payment arrangements: Where a repayment arrangement is made and supply resumed, but a repayment is then not made on time, We may again suspend or discontinue supply in Our absolute discretion and without prior notice.
30.10 Power of attorney: You irrevocably appoint Us as Your attorney to do anything We consider fit for the recovery of the Sum Due or the creation, perfection or enforcement of any collateral held as security.
30.11 Other remedies: We may exercise any of Our rights and remedies, including legal action for recovery, notwithstanding the exercise of other rights under these Conditions.
31. Software and Licences
31.1 All third-party Software licences are Your responsibility. It is Your duty to store all licences for Software used so they can be reproduced when required, including Software installed by Us.
31.2 You indemnify and hold Us harmless against any claim, loss, damage or expense arising directly or indirectly from any unauthorised Software use by You, any breach of a Software licence in respect of Software You provide to Us for installation, Us installing Software where You are not authorised to use it, or any defect or malfunction in Software supplied by third parties.
31.3 All copyright in custom software remains the sole property of Ours unless alternate arrangements are made under a separate software agreement.
32. Copyright and Confidentiality
32.1 Warranty and breach: You warrant that any confidential or copyright information or Intellectual Property provided by You to Us belongs to You. You indemnify and hold Us harmless in respect of any claim, loss, cost or expense in connection with a breach of this warranty.
32.2 Confidential information: Each party acknowledges that in the course of this Agreement it may receive non-public, confidential or proprietary information of the other (including, in Our case, information relating to You, Your customers, consumers or employees). Both parties will regard such information as confidential and will take all commercially reasonable steps not to disclose, copy, sell, transfer or distribute it, except as permitted in writing by the disclosing party or as required by applicable law.
33. Dispute Resolution
33.1 If any dispute arises in connection with this Agreement, the party raising it must give the other written notice detailing the dispute. The parties will use all reasonable endeavours to resolve it, including by meeting within ten (10) Working Days of the notice. If unresolved, either party may refer the dispute to mediation or arbitration under the Arbitration Act 1996, with the appointing body being the Arbitrators’ and Mediators’ Institute of New Zealand.
33.2 Each party must, to the extent possible, continue to perform its obligations even if there is a dispute. This clause does not affect either party’s right to seek urgent interlocutory or injunctive relief.
34. General
34.1 Entire agreement: The Quote, these Conditions and any Plan Schedule constitute the entire agreement between the parties with respect to the Services and replace all earlier negotiations, representations and agreements, whether verbal or written.
34.2 No waiver: No right under these Conditions is waived except by notice in writing signed by the relevant party. Any failure to enforce, or any delay or indulgence, will not be construed as a waiver.
34.3 Binding effect: These Conditions are binding on the successors, permitted assigns, executors and administrators of the parties. Where there is more than one Customer, the liability of each is joint and several.
34.4 Counterparts: This Agreement may be signed in counterparts, including by email, each of which constitutes an original and together constitute the same agreement.
APPENDIX A — Service Request Lodgement Process
When You contact Us to lodge a service request, only the following methods must be used:
- Phone: 0800 437 078
- Email: support@fleettrack.nz
- Web Portal: https://support.fleettrack.nz/
Include a short description of the problem and any screenshots of errors to assist resolution. If the issue is lodged by phone or external email, You must include Your name, company and return contact details.
Service requests must not be lodged directly with technicians, as this detracts from resolving current issues.
Service requests outside of Business Hours. We provide support during Business Hours only. Service requests received outside Business Hours will be received and actioned on Our next Business Day.
Contact
Fleet Track NZ Limited
- Website: www.fleettrack.nz
- Email: support@fleettrack.nz
- Phone: 0800 437 078
- Address: PO Box 4275, Whanganui 4541, New Zealand