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WHG WARRANTY / TERMS AND CONDITIONS

DEFINITIONS AND INTERPRETATIONS
1. In this agreement, unless inconsistent with the context, the following words shall have the meanings assigned to them hereunder
  1. “agreement” – this agreement read with the preceding transaction schedule and vehicle list;
  2. “commencement date” – the date of signature of this agreement by the Subscriber;
  3. “contact person” – the Subscriber’s contact person(s) referred to in the transaction schedule or such substitute(s) as notified in writing to WHG by the Subscriber from time to time;
  4. “false alarm” – a signal from the WHG equipment or message from the Subscriber pursuant to which steps are taken to render the applicable WHG services but where WHG determines that the relevant WHG services are or were not required;
  5. “fitment centre” – the fitment centre, duly approved and/or recommended by WHG for the installation of the WHG equipment, or WHG if it installs the WHG equipment itself;
  6. “WHG” – WHG Telematics Pty Ltd
  7. “WHG Control Centre” – the centre where signals are sent to the WHG equipment and where applicable signals are received back from the WHG equipment;
  8. “WHG equipment” – the equipment specified in the transaction schedule;
  9. “WHG services” – the WHG services referred to in clause 7 hereof;
  10. “Service Providers” – includes the operator of the communications network utilised by WHG, the supplier of Mapping services utilised by WHG and the recovery teams utilised by WHG for vehicle recovery services;
  11. “Subscriber” – the contracting party as described in the preceding transaction schedule;
  12. “territory” – Australia excluding such areas or situations where the vehicles and/or the WHG equipment is not capable of or otherwise prevented from sending and receiving signals;
  13. “transaction schedule” – the preceding portion of this agreement which identifies the Subscriber and WHG and in which provision is made for other particulars and terms applicable to this agreement to be completed including any additional vehicles and services added to the transaction schedule at the written request of the Subscriber;
  14. “vehicle/s” – the vehicle/s referred to in the vehicle list;
  15. “vehicle list” – the annexure to the transaction schedule which identifies the vehicles that are subject to this agreement;
  16. “vehicle recovery service” – the vehicle recovery service referred to clause 7.
  17. "Rental" – The repayment of hardware only, or hardware plus subscription services and other monthly charges over the agreed Contract Period (Months).
2. Heading of clauses shall be deemed to have been included for purposes of convenience only and shall not affect the interpretation of the agreement;
3. Unless inconsistent with the context words relating to any gender shall include the other genders, words relating to the singular shall include the plural and vice versa and words relating the natural persons shall include association of persons having corporate status by statute or common law.
APPOINTMENT AND HIRE
1. The Subscriber hereby appoints WHG to provide the WHG services to the Subscriber in the territory and WHG agrees to do so upon the terms and conditions set out in this agreement.
2. Save in the event that the WHG equipment is purchased outright by the Subscriber, the Subscriber hereby hires the WHG equipment from WHG with effect from the commencement date for the individual pieces of WHG equipment set out in the transaction schedule on the terms and conditions set out in this agreement.
3. Insofar as it is necessary to enable WHG to provide the WHG Services, the Subscriber irrevocably authorises WHG to take control of and/or drive and/or otherwise secure the vehicles on the Subscribers behalf.
DURATION OF CONTRACT
1. Subject to the provisions of this agreement, this agreement shall take effect on the commencement date and shall continue for the period specified in the transaction schedule.
2. Either party may terminate this Agreement at the completion of the period specified in the transaction schedule by providing not less than 30 days notice.
3. In the event neither party terminates in accordance with clause 3.2, the parties agree that this agreement is automatically renewed for the period specified in the transaction schedule.
4. Should the Subscriber terminate this agreement otherwise than envisaged in clause 3.2, or WHG terminates in accordance with clause 11, then WHG shall be entitled to claim from the Subscriber as a genuine pre-estimate of the damages suffered by WHG, an amount equal to the total monthly rental and other monthly charges due, for the unexpired period of this agreement. The said amount shall be paid to WHG within seven (7) days of the date of such termination or the date on which the Subscriber fell in arrears.
5. Notwithstanding anything to the contrary contained in this agreement, WHG reserves the right to recover any and/or all damages suffered by WHG arising from such early termination of this agreement by the Subscriber.
THE INSTALLATION AND OPERATION OF EQUIPMENT
1. The WHG services cannot be invoked or rendered unless the WHG equipment is properly installed (if purchased outright, within 3 business days of the purchase) in the vehicle/s by an approved fitment centre and such WHG equipment is programmed, enabled and functioning in accordance with WHG’s specifications.
2. Notwithstanding anything to the contrary contained in this agreement, WHG shall be relieved of its obligation under this agreement during any period in which the WHG equipment is not functioning arising out of or in connection with the Subscriber not complying with its obligations under this agreement.
OBLIGATIONS OF THE SUBSCRIBER
1. The Subscriber shall immediately notify the WHG Control Centre of any activation of the vehicle recovery service which has been accidentally or unintentionally activated.
2. In the event the WHG Control Centre receives a signal from the WHG equipment invoking the vehicle recovery service, it shall endeavour to contact the Subscriber or its contact person by short message service (SMS) to the mobile telephone number notified in writing by the Subscriber to WHG, to verify the signal. Where WHG cannot reach the Subscriber or its contact person by SMS at the given telephone number, WHG shall in its sole discretion decide whether to initiate the vehicle recovery service.
3. The Subscriber hereby accepts responsibility for all the consequences of any accidental or unintentional activation of the WHG equipment.
4. The Subscriber undertakes to use the WHG equipment and the WHG services in a careful and proper manner and strictly in accordance with the provisions of this agreement and with any other literature disseminated by WHG from time to time. If there is any conflict between the provisions of this agreement and the aforementioned literature, the provisions of this agreement shall prevail.
5. The Subscriber shall not alter or modify or otherwise interfere with the WHG equipment or any part thereof in any way whatsoever. The Subscriber shall keep the WHG equipment free of any lien or charge and not sell, donate or pledge or in any other manner encumber or dispose of same.
6. The Subscriber hereby acknowledges that WHG shall not be responsible for any loss or damage or expense suffered by the Subscriber or any third party resulting from any use of the WHG equipment and/or the WHG services.
7. When the WHG services are invoked and the WHG services require the tracking and recovery of the vehicles, the Subscriber shall, within twelve (12) hours of such service being invoked, lodge details of the relevant police case number with WHG. Failure to comply with the provisions of this sub clause will render the Subscriber liable to WHG for the cost of the vehicle recovery.
8. The Subscriber shall have the installed WHG equipment tested by the fitment centre within 72 hours after having been advised by WHG that such WHG equipment needs to be tested, but in any event, at intervals of not less than 12 months.
RENTAL AND OTHER MONTHLY CHARGES
1. The Subscriber shall pay the rental and other monthly charges set out in the transaction schedule, free of demand, deduction or set off of any nature, free of exchange, bank costs and other charges monthly in advance to WHG. The first monthly rental and other monthly charges shall be payable on the commencement date and thereafter on or before the day specified in the transaction schedule by way of debit order authorisation on the Subscriber’s bank account referred to in the transaction schedule, or, if WHG consents in writing, in accordance with such other terms. If the commencement date falls on a day other than the first of a month, the first monthly rental and other monthly charges shall be an amount equal to a proportionate share of the monthly rental and other monthly charges in the ratio which the monthly rental and other monthly charges bear to the number of days calculated from the commencement date to the end of the relevant month.
2. After the expiry of the initial period referred to in the transaction schedule, WHG may increase the monthly rental and other monthly charges upon (1) calendar month’s written notice to the Subscriber. During the initial period referred to in the transaction schedule, the monthly rental and other monthly charges shall escalate as set out in the transaction schedule.
3. In the event of the WHG equipment being hired by the Subscriber, neither the Subscriber, nor any person on the Subscriber’s behalf, shall during the course of this agreement, or upon its termination, acquire ownership of the WHG equipment and ownership thereof shall remain with WHG. Upon termination of this agreement the Subscriber shall be obliged to take the vehicles with the WHG equipment installed in them to a fitment centre for removal within 7 (seven) days of termination. The Subscriber shall pay all the costs incurred or associated with such removal.
4. In the event the Subscriber fails to take the vehicles to the fitment centre for removal of the WHG equipment, the Subscriber shall continue to pay the rentals and other monthly charges whilst it is in possession of the WHG equipment, as if the agreement was not terminated.
5. If WHG cancels this agreement due to default by the Subscriber and the Subscriber disputes WHG’s rights to do so, the Subscriber shall nevertheless continue to pay the rentals and other monthly charges whilst it remains in possession of the WHG equipment and WHG shall be entitled to accept such payments without prejudice to the claim for cancellation then in dispute.
THE WHG VEHICLE RECOVERY & VEHICLE INFORMATION SERVICES Where specifically Subscribed for WHG shall provide a vehicle recovery service, and/or a vehicle information service, as set out in the transaction schedule.
1. WHG Vehicle Recovery Service Subject to the provisions of clause 5.2, as soon as practicable after receipt of a signal by the WHG Control Centre from the WHG equipment or a verified message from the Subscriber invoking the vehicle recovery service within the territory, whichever is applicable, WHG shall –
  1. immobilise the vehicle if possible, endeavour to determine the location of the vehicle and endeavour to take possession and/or control of the vehicle;
  2. drive or otherwise move the vehicle to a secure location, determined as such in the sole discretion of WHG, at the cost and expense of the Subscriber;
  3. advise the Subscriber of the location of the vehicle and/or the outcome of its endeavours to track and recover the vehicle
2. Vehicle Information Services The Subscriber acknowledges, understands and agrees that the vehicle information services are a tool to be used for productivity enhancement in relation to the Subscriber’s vehicle, the benefits of such services to the Subscriber depend upon the use thereof by the Subscriber.
FEES AND CHARGES, PAYMENT AND INTEREST
1. In addition to the rental and other monthly charges referred to in clause 6, the Subscriber shall be liable for and pay to WHG all charges and costs plus GST thereon actually expended and/or incurred by WHG arising from–
  1. a false alarm and/or any WHG services provided by WHG where the Subscriber fails to comply with clause 5.7 ; and/or
  2. any rendering or use of the WHG services knowingly made or caused by the Subscriber or any representative of the Subscriber or any authorised persons or users or drivers of the vehicles, which transpires to be false or not required; and/or
  3. the transporting, removal, driving and/or securing of the vehicles (including but not limited to towing charges and similar carriage charges) pursuant to the WHG services to a safe location so determined by WHG in its sole discretion, where, in the sole discretion of WHG, the vehicles are not capable of being driven.
2. The Subscriber shall be responsible for a reconnection fee as determined by WHG from time to time, plus GST, in the event of the reinstatement of any WHG services previously suspended by WHG in accordance with the provisions of clause 11 below.
3. Payment of all costs and fees in terms of this agreement shall be made by the Subscriber without demand, deduction or set off of any nature, free of exchange, bank costs and other charges. Payment of the additional costs set out in 8.1 shall be made within seven (7) days of receipt by the Subscriber of an invoice in respect of same from WHG.
4. The Subscriber shall be responsible for payment of any stamp duties in respect of this agreement and for the payment of all legal costs incurred by WHG arising out of a breach of this agreement on a “solicitor and own client” basis.
5. The monthly rental and other monthly charges have been determined, inter alia with reference to the information provided by the Subscriber from time to time, which the Subscriber warrants is true and correct. The Subscriber shall forthwith notify WHG in writing of any changes or additions to such information. If such information is found to be incorrect, inadequate or insufficient, WHG may cancel this agreement in accordance with the provisions of clause 11, or, without notice to the Subscriber, adjust the monthly rentals and other charges in accordance with its standard charges from time to time to such rentals and other charges as would have applied if WHG had been furnished with the correct information. Such adjustment may be made retrospectively with effect from the date of the giving of the incorrect and/or inadequate and/or insufficient information and any additional amounts which become so payable shall be paid by the Subscriber to WHG on demand.
6. The Subscriber shall effect all payments in terms of or arising from this agreement in such manner as determined from time to time by WHG. The Subscriber shall at all times ensure that WHG is advised of a bank account from which it may withdraw amounts due by the Subscriber under this agreement.
7. For as long as this agreement remains in force the Subscriber shall not be entitled to withhold payment of any amounts due to WHG hereunder for any reason whatsoever.
8. WHG shall be entitled, in its sole discretion, to appropriate or allocate any payments received from or on behalf of the Subscriber to any indebtedness of the Subscriber to WHG from whatsoever cause arising.
9. Should the Subscriber fail to pay any amount due in terms of or arising from this agreement on due date then such overdue amount shall bear interest at the rate applicable under the Penalty Interest Rates Act 1984 (Vic), calculated from the due date for payment of such amount until the date of payment thereof.
10. WHG shall be entitled to make any enquiries deemed necessary in any application for credit facilities or continuation thereof. If a credit facility is approved for the Subscriber, WHG is further entitled to register details about the conduct of the Subscriber’s account with any National Credit Bureau.
NOTICES Where WHG is required to notify the Subscriber of any matter arising from this agreement, (except for the service of legal documents) such notice shall be effected by SMS to the Subscriber or its contact person, as the case may be, at such mobile telephone number as notified in writing by the Subscriber to WHG from time to time. Where WHG cannot reach the Subscriber or its contact person at the given mobile telephone number, WHG shall be relieved of the duty to provide such notice.
EXCLUSION OF LIABILITY
1. The Subscriber acknowledges and agrees that notwithstanding anything to the contrary contained in this agreement –
  1. the WHG services are intended to reduce the risk of loss but not of eliminating such risk;
  2. WHG shall not be liable for any loss or damage of whatsoever nature (whether direct or consequential) or expenses or cost of any nature whatsoever which may be suffered by the Subscriber or any third party in consequence of, or attributable directly or indirectly to, any act or omission by WHG or any failure by WHG to provide the WHG services pursuant to this agreement, notwithstanding any negligence on the part of WHG and/or its employees and/or its agents; or directly or indirectly arising pursuant to or in connection with the provision of services to WHG or the Subscriber by any wireless telephone network operator (“the Service Provider”) or which makes such wireless telephone network services (“the Network Services”) available to Subscribers or arising out of or in connection with any system down time or delay, malfunction or breakdown of equipment or the Network Services or unavailability of the Network Services, or the activation, deactivation, suspension, cancellation or reactivation of any SIM card by the Service Provider, or the reliance on any information received from the Service Provider via the Network Services.
2. The Subscriber hereby indemnifies and holds WHG harmless against all claims of whatsoever nature including all claims for loss, damage, expenses and costs, which may be brought against WHG by any person arising directly or indirectly or in connection with any act or omission by WHG in providing the WHG services or otherwise, notwithstanding any negligence on the part of WHG and/or its employees and/or its agents, or arising directly or indirectly or in connection with any act or omission by the Service Providers, WHG’s or the Subscriber’s use or accessing of the Network Services, or the reliance on information provided by the Service Providers.
BREACH If the Subscriber:
1. breaches any term or condition of this agreement; or
2. if, in the sole opinion of WHG, raises a false alarm or abuses the WHG services; WHG may, notwithstanding anything to the contrary contained herein, immediately suspend its obligations under this agreement without notice, and/or cancel this agreement without notice and without any liability to the Subscriber. Any such suspension or cancellation shall be without prejudice to any other rights which WHG may then have against the Subscriber at law. Upon termination of this agreement for whatsoever reason all amounts payable by the Subscriber to WHG shall immediately become due and payable.
CERTIFICATE OF INDEBTEDNESS A certificate signed by any director or manager for the time being of WHG (whose appointment need not be proved) in respect of any indebtedness of the Subscriber to WHG under the agreement or otherwise or in respect of any other fact shall be prima facie evidence of the Subscriber’s indebtedness to WHG and/or such other fact.
INSTALLATION INTO NEW VEHICLES
1. The Subscriber shall not transfer the WHG equipment to new vehicles without WHG’s prior written consent, which WHG may give or withhold in its sole discretion and which WHG may give subject to such conditions as WHG may determine in its sole discretion. If WHG gives its prior written consent, the Subscriber shall ensure that the WHG equipment is removed from the vehicles and installed in the new vehicles by the fitment centre. The Subscriber shall pay all the fitment centre’s charges for such removal and installation and advise WHG immediately of the details of the new vehicles. The Subscriber acknowledges that WHG may adjust the monthly rental fee in accordance with the provisions of clause 8.5 as a result of the transfer of the WHG equipment to the new vehicles. In such an event, the parties shall jointly draw up a new updated vehicle list. The parties shall initial and date the vehicle list for identification purposes and shall append the new vehicle list to this agreement.
WARRANTY
1. The WHG equipment has a warranty of 12 months and the workmanship in installing the equipment, where WHG is the fitment centre, is warranted for 3 months. The terms and conditions of such warranties are set out in WHG’s Warranty Document. A copy of the Warranty Document is available on request.
2. In the event of the Subscriber electing the extended warranty option in the transaction schedule, then such extended warranty shall apply to the equipment.
CONSENT
1. The Subscriber consents to information relating to the Subscriber contained in the transaction schedule, or as otherwise provided, being disclosed to the Service Provider and/or to any party where such disclosure is necessary for the performance of WHG’s obligations under this agreement..
2. The Subscriber consents to WHG performing such credit checks relating to the subscriber as WHG deems necessary from time to time.
FORCE MAJEURE
1. Subject to the following provisions of this clause 16, neither party shall be responsible to the other for its failure to perform or any delay in performing any obligation under this agreement in the event and to the extent that such failure or delay is caused by force majeure.
2. For the purposes of this agreement, force majeure shall mean any circumstance which :
  1. is beyond the reasonable control of the party giving notice of force majeure (“the affected party”) and for which it is not responsible; and
  2. is not a circumstance which the affected party could, by the exercise of a standard of care and skill which could reasonably be expected of that party, have avoided.
3. Subject to the above, force majeure includes but is not limited to war (whether declared or not), terrorism, revolution, invasion, insurrection, riot, civil, commotion, mob violence, sabotage, blockade, embargo, boycott, the exercise of military or usurped power, fire, explosion, theft, storm, flood, drought, wind, lightning, or other adverse weather condition, epidemic, quarantine, accident, breakdown of machinery or facilities, strike, lockout or labour dispute, acts or restraints of government imposition, or restrictions of or embargoes on imports or exports.
4. Notwithstanding the provisions of 16.2 :
  1. a labour dispute, strike or lockout which could be resolved by the affected party acceding to the demands made of it shall be deemed to be an event of force majeure; and
  2. inability to comply with this agreement because of a lack of funds shall in no circumstances be treated as an event of force majeure.
5. The affected party shall give notice thereof to the other immediately upon the occurrence of an event of force majeure.
GENERAL
1. This agreement contains all of the express provisions agreed upon by the parties with regard to the subject matter hereof. No agreement varying, adding to, deleting from or cancelling this agreement and no waiver of any right under this agreement shall be effective unless reduced to writing and signed by or on behalf of the parties.
2. No relaxation by a party of any of its rights in terms of this agreement at any time shall prejudice or be a waiver of its rights (unless it is a written waiver in terms of the previous clause) and it shall be entitled to exercise its rights thereafter as if such relaxation had not taken place.
3. The Subscriber shall not be entitled to assign or delegate its rights or obligations under this agreement without the prior written consent of WHG. If the WHG equipment is rented or hired, the Subscriber agrees that should WHG assign all or any of its rights under this agreement or transfer ownership of the WHG equipment to any third party, it shall hold the goods on behalf of the assignee and/or transferee.
4. If any provision in a definition is a substantive provision conferring rights or imposing obligations on any party, notwithstanding that it is only in the definition clause, effect shall be given to it as if it were a substantive provision in the body of the agreement.
5. When any number of days is prescribed in this agreement, same shall be reckoned exclusively of the first and inclusively of the last day unless the last day is not a business day (a business day being a day other than a Saturday, Sunday or public holiday in Australia) in which case the last day shall be the next succeeding business day.
6. Where figures are referred to in numerals and in words, if there is any conflict between the two, the words shall prevail.
7. The rule of construction that the contract shall be interpreted against the party responsible for the drafting or preparation of the agreement, shall not apply.
NOTICES
1. The parties choose for all purposes under this agreement, whether in respect of court processes, notices or other documents or communications of whatsoever nature, the following addresses:
  1. WHG: Unit 33, 640-650 Geelong Rd, Brooklyn, Victoria, Australia, 3012
  2. Subscriber: As set out in the transaction schedule
2. Any notice required or permitted to be given in terms of this agreement shall be valid and effective only if in writing.
3. Any notice to a party:-
  1. sent by prepaid registered post (by airmail if appropriate) shall be deemed to have been received on the 2nd business day after posting (unless the contrary is proved); or
  2. notwithstanding anything to the contrary herein contained, a written notice or communication actually received by a party shall be an adequate written notice or communication to it notwithstanding that it was not sent to or delivered in accordance with clause 18.1.

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