TERMS & CONDITIONS

CUSTOMER TERMS & CONDITIONS

BINOTRACK

ITM Systems Australia Pty Ltd trading as “Binotrack”

ABN: 98 602 596 903

1. INTRODUCTION

These Customer Terms & Conditions (“Terms”) apply to the supply and provision of products and services by ITM Systems Australia Pty Ltd trading as Binotrack (“Binotrack”, “we”, “us” or “our”) to the customer identified in a quotation, order, application or account (“Customer”, “you” or “your”).

Binotrack provides vehicle telematics and fleet management solutions, including GPS tracking devices, dashcams, vehicle monitoring equipment, installation services, tracking software, fleet management platforms and related services.

These Terms are intended to be read together with the quotation or proposal issued by Binotrack and accepted by the Customer (“Quotation”).

By accepting a Quotation, placing an order, authorising installation, accessing or using the Binotrack platform, or otherwise proceeding with the Services, the Customer agrees to be bound by these Terms.

2. DEFINITIONS

In these Terms:

Account means the Customer’s account with Binotrack for the Services.
Binotrack Platform means the software, online portal, mobile application, dashboard, reporting system and associated technology made available by Binotrack for the Services.
Customer means the person, company, partnership, trust, organisation or other entity that accepts a Quotation or otherwise obtains the Services.
Equipment means any GPS tracker, dashcam, camera, sensor, accessory, SIM-enabled device, wiring, installation component or other hardware supplied or installed by Binotrack.
Fixed Term means the subscription period specified in the Quotation or otherwise agreed in writing between Binotrack and the Customer.
Monthly Subscription means a recurring subscription charged on a monthly basis for the Services.
Quotation means the written quotation, proposal, order form or other commercial document issued by Binotrack setting out the Equipment, installation, Services, fees, subscription and any other applicable commercial terms.
Services means the telematics, GPS tracking, fleet management, dashcam, monitoring, reporting, software, connectivity and related services provided by Binotrack.
Subscription means the recurring fee payable by the Customer for the Services.
Vehicle means the motor vehicle or other asset in which Equipment is installed.

3. APPLICATION OF THESE TERMS

These Terms apply to all Equipment and Services supplied by Binotrack unless Binotrack expressly agrees otherwise in writing.
The Quotation and these Terms together form the agreement between Binotrack and the Customer (“Agreement”).
If there is an inconsistency between these Terms and the Quotation, the Quotation will prevail to the extent that it expressly deals with a specific commercial matter, including price, Equipment, subscription amount or Fixed Term; and these Terms will otherwise continue to apply.
Any variation to the Agreement must be agreed in writing by Binotrack and the Customer.

4. QUOTATIONS AND ACCEPTANCE

Binotrack will generally provide the Customer with a Quotation identifying the proposed Equipment, installation services, subscription and other applicable charges.
Unless otherwise stated in the Quotation, a Quotation is valid for the period stated in the Quotation.
The Customer may accept a Quotation by signing it, confirming acceptance electronically, providing written acceptance, placing an order, authorising installation or otherwise instructing Binotrack to proceed.
Once accepted, the Quotation becomes binding on the Customer subject to these Terms.
Binotrack may require payment of an installation fee, Equipment fee, deposit or other amount before installation or commencement of the Services.
Binotrack may refuse or delay installation or commencement of Services where the Customer has not satisfied applicable payment or installation requirements.

5. EQUIPMENT

Binotrack may supply and install GPS tracking devices, dashcams and other telematics Equipment specified in the Quotation.
Equipment may include hardware supplied by Binotrack or third-party manufacturers.
The Equipment is intended to provide telematics, tracking, monitoring, recording or other functions described in the Quotation or applicable product documentation.
The Customer acknowledges that the performance and functionality of Equipment may depend on factors outside Binotrack’s reasonable control, including:

mobile telecommunications coverage;
GPS satellite availability and accuracy;
vehicle condition;
electrical supply;
vehicle modifications;
environmental conditions;
network outages;
telecommunications provider outages;
software or platform availability; and
damage, interference or tampering with Equipment.

Binotrack may replace Equipment with an equivalent or improved model where reasonably necessary to maintain or improve the Services.

6. INSTALLATION

Binotrack will install Equipment in the Vehicle at the agreed location or otherwise at a location reasonably determined by Binotrack.
The Customer must ensure that:

the Vehicle is available at the agreed time and location;
the Vehicle is reasonably accessible for installation;
the Vehicle is in a suitable condition for installation;
the Customer has authority to authorise installation; and
any necessary approvals from the Vehicle owner, employer, driver, lessor, financier or other relevant person have been obtained.

Binotrack may decline to install Equipment if the Vehicle is unsuitable or installation may reasonably create a safety, technical or warranty risk.
The Customer must not interfere with, relocate, disconnect, modify or remove Equipment without Binotrack’s prior approval.
Where Equipment is damaged, disconnected, removed, interfered with or rendered inoperable by the Customer or a person acting on the Customer’s behalf, Binotrack may charge the Customer for inspection, repair, replacement, reinstallation or other associated costs.

7. CUSTOMER RESPONSIBILITY FOR VEHICLE

The Customer is responsible for:

ensuring that the Vehicle is legally owned, leased or otherwise lawfully controlled by the Customer;
ensuring that installation of Equipment is permitted by the Vehicle owner, financier, lessor or other relevant party;
maintaining the Vehicle in proper mechanical and electrical condition;
promptly informing Binotrack of any change to the Vehicle that may affect Equipment;
ensuring that the Vehicle is not subjected to modifications that interfere with Equipment; and
notifying Binotrack if the Vehicle is sold, transferred, written off, scrapped, permanently removed from service or otherwise disposed of.

8. SUBSCRIPTION SERVICES

The Customer must pay the Subscription specified in the Quotation for the Services.
The Subscription may be charged:
monthly; or
for another period agreed in the Quotation.
Unless the Quotation states otherwise, a monthly Subscription continues on a month-to-month basis until cancelled in accordance with these Terms.
A Fixed Term Subscription continues for the Fixed Term specified in the Quotation.
The Customer’s Subscription may include access to the Binotrack Platform, GPS tracking, fleet management functionality, dashcam services, reports, alerts, data services and other features specified in the Quotation.
Additional features, Equipment, services or vehicles added after commencement may incur additional charges.

9. FEES AND PAYMENT

The Customer must pay all fees specified in the Quotation.
Unless otherwise agreed, all prices are in Australian dollars and are exclusive of GST where GST is applicable.
Invoices are payable by the due date stated on the invoice.
The Customer must not withhold or set off payment of an undisputed invoice because of a separate dispute.
If payment is overdue, Binotrack may, subject to applicable law:
issue a payment reminder;
charge reasonable costs associated with recovering overdue amounts;
suspend some or all Services;
restrict access to the Binotrack Platform; and/or
terminate the Agreement in accordance with these Terms.
Binotrack will not suspend or terminate Services in circumstances where doing so would breach a non-excludable right or obligation under applicable law.

10. MONTH-TO-MONTH CANCELLATION

A Customer whose Subscription is on a month-to-month basis may request cancellation by providing Binotrack with at least 30 days’ written notice.
The Customer remains responsible for all Subscription fees and other charges properly payable during the 30-day notice period.
Cancellation of Services does not automatically remove Equipment from the Vehicle.
The Customer must separately notify Binotrack and arrange an appointment if the Customer requires Equipment to be removed.
Equipment removal will incur the applicable removal charge notified by Binotrack.

11. FIXED TERM CANCELLATION AND EARLY TERMINATION

Where the Customer has agreed to a Fixed Term, the Customer is committing to the Subscription for that Fixed Term.
If the Customer requests cancellation before the end of the Fixed Term, the Customer remains responsible for the Subscription fees for the remaining period of the Fixed Term, unless otherwise agreed in writing by Binotrack.
Binotrack may, at its discretion, agree to an alternative early termination arrangement.
Any agreed early termination arrangement must be confirmed in writing.
Cancellation of a Fixed Term Subscription does not automatically remove Equipment from the Vehicle.

12. SALE, TRANSFER OR DISPOSAL OF A VEHICLE

If the Customer sells or transfers a Vehicle with Binotrack Equipment installed, the Customer must notify Binotrack as soon as reasonably practicable.
The Customer may request that the Binotrack Services be transferred to the new owner of the Vehicle.
The new owner may continue the Services subject to:
accepting Binotrack’s then-current customer terms;
providing the information reasonably required by Binotrack;
establishing an account with Binotrack; and
paying the applicable Subscription and other charges.
A transfer will not be effective until Binotrack has confirmed the transfer in writing or otherwise activated the new owner’s account.
Until the transfer is accepted and activated by Binotrack, the existing Customer remains responsible for the Account and all amounts payable under the Agreement.
If the Customer sells the Vehicle but does not wish the new owner to continue the Services, the Customer must notify Binotrack and arrange for removal of the Equipment.
Equipment removal charges will apply.
If a Vehicle is scrapped, written off or otherwise permanently disposed of, the Customer must notify Binotrack.
Where a Vehicle is disposed of and the Customer is entitled to cancel the Services, Binotrack may cancel the relevant Service subject to:
any applicable Fixed Term commitment;
outstanding fees; and
any other amounts properly payable under the Agreement.

13. EQUIPMENT REMOVAL

The Customer is responsible for notifying Binotrack when Equipment needs to be removed.
Binotrack must carry out or authorise removal of Equipment unless otherwise agreed.
The Customer must not remove Equipment itself or engage an unauthorised person to remove Equipment where doing so may damage the Equipment, Vehicle or Services.
A removal fee will apply.
If Equipment is not removed and remains installed after Services have been cancelled, the Customer remains responsible for ensuring that Binotrack is notified of the Equipment’s location and status.

14. GPS TRACKING AND SERVICE LIMITATIONS

The Customer acknowledges that GPS and telematics services are technology-dependent services and are not guaranteed to provide continuous, uninterrupted or perfectly accurate information.
GPS location may be affected by buildings, tunnels, underground areas, weather, satellite availability, signal obstruction, device positioning and other technical conditions.
Mobile network coverage may vary depending on location and telecommunications provider.
Binotrack does not guarantee that the Services will operate continuously in every geographical location.
The Services are intended as a fleet management and vehicle monitoring tool and should not be relied upon as the sole means of preventing theft, accident, loss or damage.
The Customer remains responsible for the safety, security, operation and management of its Vehicles and drivers.
Binotrack does not represent that use of the Services will prevent theft, unauthorised vehicle use, accidents, speeding, misconduct, loss or damage.

15. DASHCAM SERVICES

Where dashcams are supplied, the Customer acknowledges that recording performance may depend on the Equipment, power supply, storage capacity, network connectivity, configuration and other technical factors.
Dashcam footage may not be available in every circumstance.
The Customer is responsible for ensuring that use of dashcams within its Vehicles complies with applicable laws and obligations, including any applicable privacy, surveillance, employment or workplace requirements.
The Customer must ensure that drivers and other relevant persons are appropriately informed of monitoring and recording where required by law.
The Customer must not use dashcam footage for unlawful, discriminatory, harassing or otherwise unlawful purposes.

16. CUSTOMER RESPONSIBILITY FOR DRIVERS AND EMPLOYEES

Where the Customer uses the Services to monitor employees, contractors, drivers or other individuals, the Customer is responsible for determining and complying with all laws applicable to that monitoring.
The Customer must provide appropriate notices, policies or consents to drivers, employees and other relevant persons where required.
The Customer is responsible for ensuring that its use of GPS tracking, dashcams, recordings, driver information and telematics data is lawful.
The Customer must not instruct Binotrack to collect, use or disclose information in a manner that would require Binotrack to breach applicable law.

17. DATA AND PRIVACY

In providing the Services, Binotrack may collect and process information including:
Vehicle location;
Vehicle identification information;
GPS and telematics information;
driving and vehicle activity data;
dashcam footage;
account and contact information;
service and technical information; and
other information reasonably required to provide the Services.
Where information constitutes personal information, Binotrack will handle that information in accordance with applicable privacy laws and Binotrack’s Privacy Policy.
The Customer acknowledges that location information and other telematics information may constitute personal information where an individual is identifiable or reasonably identifiable.
The Customer authorises Binotrack to collect, store, process and use information reasonably required to:
provide and operate the Services;
maintain and support Equipment;
provide reports and alerts;
maintain Customer accounts;
troubleshoot and improve the Services;
comply with legal obligations; and
protect Binotrack’s legitimate business interests.
Binotrack may use third-party technology providers, telecommunications providers, hosting providers, software providers and other service providers in providing the Services.
Where required by applicable privacy law, Binotrack will take reasonable steps to protect personal information from misuse, interference, loss and unauthorised access, modification or disclosure.
Further information about Binotrack’s handling of personal information will be set out in its Privacy Policy.

18. CUSTOMER DATA

The Customer remains responsible for the accuracy and legality of information it provides to Binotrack.
The Customer grants Binotrack the right to process Customer data to the extent reasonably necessary to provide the Services.
The Customer must ensure that it has all necessary rights and permissions to provide information to Binotrack for processing.
Binotrack may retain information for reasonable periods for operational, security, legal, accounting and business purposes, subject to applicable law.
Where legally required, Binotrack will handle requests for access to or correction of personal information in accordance with applicable privacy laws.

19. BINOTRACK PLATFORM

Binotrack may provide the Customer with access credentials for the Binotrack Platform.
The Customer must keep usernames, passwords and access credentials secure.
The Customer must promptly notify Binotrack if it becomes aware of unauthorised access or suspected compromise of an account.
The Customer must not:
share access credentials with unauthorised persons;
attempt to circumvent security controls;
interfere with the operation of the Platform;
reverse engineer the Platform except where permitted by law;
copy or commercially exploit the Platform without permission; or
use the Platform for unlawful purposes.
Binotrack may perform maintenance, updates or upgrades to the Platform from time to time.
Binotrack will use reasonable efforts to minimise disruption caused by maintenance and upgrades.

20. THIRD-PARTY NETWORKS AND SERVICES

Some Services may rely upon third-party telecommunications networks, GPS infrastructure, cloud services, mapping services or other third-party technology.
Binotrack does not control third-party networks or services and cannot guarantee their uninterrupted availability.
Changes, interruptions, failures or withdrawal of third-party services may affect the Services.
Where reasonably necessary, Binotrack may modify or replace third-party technologies used to provide the Services.

21. SERVICE AVAILABILITY AND OUTAGES

Binotrack will use reasonable efforts to provide the Services in a reliable and professional manner.
The Customer acknowledges that temporary outages or interruptions may occur.
Binotrack will not be responsible for interruptions caused by matters outside its reasonable control.
Where reasonably practicable, Binotrack will take reasonable steps to restore affected Services.

22. WARRANTIES

Binotrack warrants that it will provide the Services with due care and skill to the extent required by applicable law.
Equipment supplied by Binotrack will be subject to any applicable manufacturer’s warranty and any warranty rights provided by applicable law.
The Customer must notify Binotrack of suspected Equipment faults within a reasonable time after becoming aware of the issue.
Binotrack may inspect Equipment before determining whether a fault is covered by warranty.
Warranty coverage may not apply to faults caused by:
misuse;
physical damage;
tampering;
unauthorised modification;
incorrect removal;
water or environmental damage;
electrical faults in the Vehicle;
accident or collision;
abnormal use; or
other causes outside the reasonable control of Binotrack,
subject always to rights that cannot legally be excluded.

23. AUSTRALIAN CONSUMER LAW

Nothing in these Terms excludes, restricts or modifies any consumer guarantee, right, remedy, warranty or other protection that cannot lawfully be excluded, restricted or modified under the Australian Consumer Law or other applicable legislation.
To the extent permitted by law, Binotrack’s liability in relation to a failure of goods or services will be dealt with in accordance with the applicable provisions of the Australian Consumer Law.
Where the law permits Binotrack to limit its liability or provide a remedy of its choice, Binotrack may do so to the extent permitted by law.

24. LIMITATION OF LIABILITY

To the maximum extent permitted by law, Binotrack will not be liable for loss or damage arising from matters outside Binotrack’s reasonable control.
Without limiting clause 24.1, this may include loss arising from:
telecommunications network failure;
GPS signal limitations;
Vehicle electrical faults;
unauthorised interference with Equipment;
inaccurate information supplied by the Customer;
failure by the Customer to maintain Equipment or Vehicle systems;
failure by the Customer to respond to alerts or notifications;
theft, accident or damage to a Vehicle;
driver conduct;
acts or omissions of third parties; or
events of force majeure.
The Services are not a substitute for appropriate vehicle security, insurance, driver management or other risk-management measures.
Nothing in this clause limits liability to the extent that such limitation is prohibited by law.

25. CUSTOMER INDEMNITY

To the extent permitted by law, the Customer indemnifies Binotrack against claims, losses, liabilities and reasonable costs arising from:

the Customer’s unlawful use of the Services;
the Customer’s failure to obtain required permissions or notices from drivers, employees, vehicle owners or other persons;
unauthorised access to the Customer’s account caused by the Customer’s failure to protect its credentials;
unlawful use or distribution of dashcam footage by the Customer; or
damage caused to Equipment by the Customer or persons under the Customer’s control.

This indemnity does not apply to the extent that the relevant loss was caused by Binotrack’s negligence, unlawful conduct or breach of a non-excludable obligation.

26. CUSTOMER INSURANCE

The Customer is responsible for maintaining appropriate insurance for its Vehicles, Equipment, drivers, business operations and risks.

The Customer acknowledges that Binotrack’s Services are not insurance products and do not replace appropriate insurance cover.

27. INTELLECTUAL PROPERTY

Binotrack and its licensors retain all intellectual property rights in:
the Binotrack Platform;
software;
systems;
reports and templates;
documentation;
branding;
technology; and
other materials supplied by Binotrack,
except for Customer-owned data.
The Customer receives a limited, non-exclusive, non-transferable right to use the Binotrack Platform for the duration of the Subscription.
The Customer must not copy, reproduce, modify, distribute, sell, sublicense or commercially exploit Binotrack intellectual property without written permission.

28. SUSPENSION OF SERVICES

Binotrack may suspend some or all Services where reasonably necessary because:

an account is materially overdue;
the Customer has materially breached the Agreement;
Equipment creates a safety or technical risk;
continued provision of Services may cause Binotrack to breach the law;
there is suspected fraud, misuse or unauthorised access; or
suspension is necessary for security, maintenance or technical reasons.

Where reasonably practicable, Binotrack will provide notice before suspension, except where immediate suspension is reasonably necessary.

Suspension does not automatically release the Customer from payment obligations.

29. TERMINATION BY BINOTRACK

Binotrack may terminate the Agreement by written notice where:

the Customer commits a material breach and fails to remedy it within a reasonable period after notice;
the Customer fails to pay amounts properly due after being given reasonable notice;
the Customer engages in unlawful or fraudulent use of the Services;
the Customer becomes insolvent or enters external administration, subject to applicable law; or
continued provision of the Services is no longer reasonably possible.

Termination will not affect rights or obligations that accrued before termination.

30. EFFECT OF TERMINATION

Upon termination:

the Customer must pay all outstanding amounts;
access to the Binotrack Platform may cease;
Services will cease at the effective termination date;
the Customer must arrange Equipment removal where required;
Equipment removal charges may apply; and
any provisions intended to survive termination will continue to apply.

Termination does not affect any rights that cannot legally be excluded.

31. EQUIPMENT AFTER TERMINATION

Unless otherwise expressly agreed in the Quotation, termination of the Services does not automatically transfer ownership of Equipment to the Customer or Binotrack.

The parties’ rights in relation to Equipment will depend on the commercial arrangement specified in the Quotation and any applicable law.

Where Equipment is to be returned or removed, the Customer must cooperate with Binotrack in arranging this.

32. CHANGES TO SERVICES

Binotrack may improve, modify or update the Services from time to time.
Where a change materially affects the Customer’s contracted Services, Binotrack will provide reasonable notice where required by law.
Binotrack may replace discontinued technology, telecommunications services or Equipment with a reasonably equivalent alternative where necessary.

33. CHANGES TO FEES

Binotrack may review its Subscription fees from time to time.
For month-to-month Services, Binotrack may change the Subscription fee by providing reasonable prior notice to the Customer.
For a Fixed Term, the agreed Subscription fee will remain as stated in the Quotation unless the Quotation expressly provides otherwise.
Nothing in this clause permits Binotrack to impose a fee or variation contrary to applicable law.

34. FORCE MAJEURE

Binotrack will not be liable for delay or failure to perform its obligations where the delay or failure results from an event beyond its reasonable control, including:

natural disasters;
fire;
flood;
severe weather;
telecommunications outages;
internet or cloud service outages;
power failures;
war;
terrorism;
industrial disputes;
government action;
supply-chain disruption;
cyber incidents; or
other events beyond Binotrack’s reasonable control.

Binotrack will use reasonable efforts to minimise the effects of such an event.

35. DISPUTE RESOLUTION

If a dispute arises, the Customer should first contact Binotrack and provide reasonable details of the dispute.
The parties will attempt in good faith to resolve the dispute commercially.
Nothing in this clause prevents either party from seeking urgent legal relief or exercising a statutory right.

36. NOTICES

The Customer must keep its contact, billing, email and Vehicle information up to date.
Binotrack may provide notices to the email address or other contact details provided by the Customer.
A cancellation request must be made in writing and should include sufficient information to identify the Customer’s Account and the relevant Vehicle or Vehicles.

37. PRIVACY POLICY

The Customer acknowledges that Binotrack’s Privacy Policy forms part of the framework governing Binotrack’s handling of personal information.

The current Privacy Policy is available at:

[INSERT PRIVACY POLICY URL]

Binotrack may update its Privacy Policy from time to time where permitted by law.

38. CONFIDENTIALITY

Each party must take reasonable steps to protect confidential information received from the other party and must not disclose such information except:

with permission;
to professional advisers;
to employees or contractors who need the information;
to service providers where reasonably required to provide the Services; or
where required by law.

39. ASSIGNMENT

The Customer must not transfer or assign its rights or obligations under the Agreement without Binotrack’s prior written approval, except where the transfer forms part of an approved transfer of a Vehicle and Services under clause 12.
Binotrack may assign or transfer its rights and obligations as part of a corporate restructuring, sale of business or transfer to a related entity, subject to applicable law.

40. GENERAL

If any provision of these Terms is found to be invalid or unenforceable, it will be read down or severed to the extent necessary and the remaining provisions will continue to operate.
A failure or delay by Binotrack to enforce a provision does not constitute a waiver of that provision.
The Agreement constitutes the entire agreement between the parties concerning the Services, subject to any other written agreement expressly incorporated into the Agreement.
The Customer acknowledges that it has had a reasonable opportunity to review these Terms and seek independent advice before accepting them.

41. GOVERNING LAW

These Terms and the Agreement are governed by the laws of the State or Territory of Australia in which Binotrack has its principal place of business, unless otherwise agreed in writing.

The parties submit to the courts and tribunals having jurisdiction in that State or Territory, subject to any mandatory rights or jurisdiction applicable under Australian law.

42. ACCEPTANCE

By accepting a Binotrack Quotation, signing an order, authorising installation, commencing use of the Services or otherwise instructing Binotrack to proceed, the Customer acknowledges that:

it has read and understood these Terms;
it agrees to be bound by these Terms;
the information provided to Binotrack is accurate;
it has authority to enter into the Agreement;
it has authority to authorise installation of Equipment in the relevant Vehicle;
it will comply with applicable laws relating to GPS tracking, dashcams, privacy and monitoring;
it will pay all applicable fees in accordance with the Agreement; and
it will notify Binotrack promptly of any sale, transfer, disposal or other material change affecting a Vehicle or the Services.