PART 1 – INTRODUCTION
1.1. Welcome to NutTAG Australia. This website at nuttag.com.au (the Website) along with the web app at my.nuttag.com.au and various mobile apps (collectively, the App) are operated by NUTTAG Pty Ltd (ABN 81 614 998 391) (NutTAG Australia, us, we, our), located at 40 Porter Street Prahran Victoria 3181, Australia.
Part 1 – Introduction
USER: (Person/s using NutTAG products)
NUTTAG Australia: NUTTAG Pty Ltd (ABN 81 614 998 391) (NutTAG Australia, us, we, our), located at 40 Porter Street Prahran Victoria 3181, Australia.
The parties hereto agree that
1.7. You warrant and represent that you have the legal right and ability to enter into legally binding agreements with NutTAG Australia. You must be at least 18 years of age or have the consent of a parent or guardian to enter this Agreement and to purchase any product from this Website or to use the App.
1.9. To report any problems regarding the Website, please contact NutTAG Australia at firstname.lastname@example.org
PART 3 – TERMS OF WEBSITE SALES
Placing an order
3.1. NutTAG Australia sells GPS tracking devices and related accessories (the Product) which is accompanied by the App.
3.2. To purchase a Product, please select it by placing it in the Website shopping cart. Your selection of a Product constitutes an offer by you to NutTAG Australia to buy the selected product on this Website (Order). All Orders are subject to acceptance by NutTAG Australia and are subject to availability.
3.3. NutTAG Australia will confirm acceptance of the Order when your payment is received in full as cleared funds by dispatching the products to you and by sending an invoice to you by email confirming that your order has been accepted.
3.4. Orders accepted by NutTAG Australia can only be cancelled by NutTAG Australia in its sole discretion, including the recovery of its reasonable costs for the acceptance of the Order, delivery of the products and its cancellation. You may contact us in order to make a request for the cancellation of the Order including an explanation of the reason for your cancellation request.
3.5. Orders can be placed for personal use only. Products cannot be purchased for the purpose of reselling to others.
3.6. Prices appearing on this Website are in the local currency where available or the closest currency to the location that you specified and are inclusive of sales tax (such as GST or VAT) where applicable.
3.7. The cost of your Order will be the price of the products ordered on this Website. Additional costs such as delivery may apply as outlined in the ‘Payment’ section below.
Subscription Terms and Renewals
3.8. The GPS Products sold on this Website must be purchased with an appropriate subscription. A subscription includes cellular plan for the embedded SIM card to facilitate data transfer between the product and the App, as well as access to the Web Portal and Apps. After the initial subscription period elapses, you will need to renew the subscription plan to keep the product working. The price of the cellular plan may differ from country to country and may be subject to change. The renewal fees are listed on this Website.
3.9 All subscriptions will automatically renew for periods equal to your initial Subscription Term unless you cancel your subscription through your account at my.nuttag.com.au. If you cancel, your subscription will terminate at the end of then-current billing cycle, but you will not be entitled to any credits or refunds for amounts accrued or paid prior to such termination.
3.10. To pay for an Order, simply complete the requested details when prompted to do so in the Shopping Cart and Checkout sections of this Website.
3.11. We accept Visa, MasterCard and PayPal methods of payment for an Order. You will be solely liable for all credit card charges, bank charges and any PayPal charges on the transaction for each Order. You agree that we may bill your credit card for renewals, additional users, and unpaid fees, as applicable.
3.12. Once your payment has been authorised by your bank, the Order will be processed and NutTAG Australia will issue a Tax Invoice if required under the relevant laws.
3.13. You are not entitled to exercise any right of set-off against moneys payable to NutTAG Australia in respect of your Order.
3.14. NutTAG Australia may offer free delivery for Orders to selected countries. However, most countries attract a delivery fee and NutTAG Australia reserves the right, in its sole discretion, to charge a delivery fee if your particular location requires a fee for any reason including for example excessive delivery charges. Any applicable delivery fees will be displayed on the Website before accepting your Order.
3.15. For each Order you make of a Product, you agree that:
(a) the Product will be delivered to the address you nominate in your Order;
(b) NutTAG Australia is not responsible for Products sent to an incorrectly supplied address;
(c) NutTAG Australia is not responsible for Products you fail to collect from NutTAG Australia’s delivery agent or any third party delivery depot such as a postal service.
3.16. Being a new product, we may experience some delays in the manufacturing and delivery of the product into our warehouse and to you. If your Order fails to arrive within 30 business days of the email confirmation of your Order, please email email@example.com and we will confirm that your order is in the system and provide an updated ETA to you.
3.17. Title in each product that you Order remains with NutTAG Australia until NutTAG Australia receives payment in full for such product.
3.18. Risk in each product that you Order passes to you upon delivery of the product(s) to the address you specified in the Order or to a local delivery depot, such as a postal service.
Warranty and product returns
3.19. NutTAG Australia warrants that all Products sold under this agreement will conform in all material respects to the specification for a period of 1 year. (Warranty Period).
3.20. If NutTAG Australia delivers you a product that you consider does not conform to the specification or is not in accordance with your Order, please contact us at firstname.lastname@example.org as soon as possible within the Warranty Period. NutTAG Australia support staff will attempt to resolve the issue with you via email or over the phone where required and try to determine if there is a technical fault with your Product.
3.21. Please refer to the NutTAG Australia Returns Policy.
Product description and availability
3.22. We take all reasonable measures to ensure that details, measurements and descriptions of the products shown on this Website are as accurate and complete as possible but there may be variations between these and the Products supplied for your Order.
3.23. We do not warrant that the product descriptions are complete or error-free.
3.24. All Products are subject to availability. The Products displayed on this Website may not be available in your particular country, state or locality.
Your right to use the Website and App
4.1. The Website and App are only for your personal use.
4.3. All materials on the Website and App, including but not limited to audio, images, software, text, artwork, video clips and other materials (Content) are protected by copyright under Australian copyright law, international conventions, and other copyright laws. You shall not copy, capture, reproduce, perform, transfer, sell, license, modify, manipulate, create derivative works from or based upon, republish, upload, edit, post, transmit, publicly display, frame, link, distribute, or exploit, in whole or in part, the Website, the App or the Content. There are a number of proprietary logos, service marks, and trade marks found on the Website and App, all of which are owned by, or licensed to, or otherwise authorized for use by NutTAG Australia. By making them available on the Website and App, NutTAG Australia is not granting you any licence to utilize those proprietary logos, service marks, or trade marks. Any unauthorized use of the Content may violate copyright laws, trade mark laws, the laws of privacy and civil and criminal statutes.
4.4. You may download one (1) copy only of the Content to be used only by you for your personal and non-commercial use at home. If you download any Content from the Website and App, you may not remove any copyright or trade mark notices or other notices that accompany it.
4.6. You may not use this Website, the App or the Products to track anything that you don’t own or don’t have the express permission of the owner to track.
4.7. You may not use this Website, the App or the Products to track any person for whom you are not the legal guardian or don’t have the express permission of the person to track. NutTAG Australia limits all liability for your use of the Website, the App or the Products including any potential invasion of anyone’s privacy.
4.9. NutTAG Australia prohibits the use of the Website and App, for any of the following:
(a) tracking people or items without express permission;
(b) transmitting or posting any message, information, data, text, software or images, or other materials (Material) that is unlawful, harmful, threatening, abusive, harassing, sexually explicit, defamatory, vulgar, obscene, libellous, hateful, racially, ethnically or otherwise objectionable or invasive of another’s right of privacy;
(c) impersonating any person or entity or to falsely state or to otherwise misrepresent your affiliation with a person or entity;
(d) posting or transmitting any Material that you do not have a right to reproduce, display or transmit or that infringes the rights of any person, or entity;
(e) posting or transmitting any Material that contains a virus or corrupted data;
(f) using any device, software, or routine that interferes with or attempts to interfere with the proper functionality of the Website and App or that adversely affects the availability of the Content on the Website and App to others;
(g) offering for sale or to distribute, exchange, modify or transmit any Content or any information received from NutTAG Australia; and
(h) attempting to decipher, decompile, disassemble or reverse engineer any of the software that makes up this Website, the App or the Content or for the purpose of creating derivative works from the Website and App.
4.10. You may be required to create an account (Your Account) before you can access certain information or functionality on the Website and App. You must provide complete and accurate information when creating Your Account. You cannot use another person’s account and must immediately notify us of unauthorised use of Your Account. We reserve the right to co-operate with any legal order, direction or request to disclose the identity or other information relating to anyone posting Material which violates any law.
Rights to your Material
4.11. You may choose to upload your own Materials to the Website or App. NutTAG Australia retains full ownership in all Materials uploaded and some of those Materials such as profile photos may be publicly accessible through the Website and App. Some Materials such as history tracks, alarm history and device settings may be shown to users which you have specifically chosen to share with through the Website or App and accept the sharing of those Materials.
4.12. NutTAG Australia welcomes your feedback and is pleased to have you submit your comments regarding its products. However, we request that you be specific in your comments, and that you do not voluntarily submit any ideas, suggestions or Materials related to the business of NutTAG Australia. If despite this request, you do voluntarily submit any ideas, suggestions or Materials related to the business of NutTAG Australia either directly to the Website and App or indirectly by means of any third party, including without limitation, Facebook, Instagram, Youtube, Pinterest or Twitter (Submissions), these Submissions shall be deemed, and shall remain, the exclusive property of NutTAG Australia. No Submissions shall be subject to any obligation of confidence on the part of NutTAG Australia, and NutTAG Australia shall not be liable for any use or disclosure of any Submissions. Without limitation to the foregoing NutTAG Australia shall exclusively own the Intellectual Property rights and all now known or hereafter existing rights to the Submissions of every kind and nature, in perpetuity, throughout the universe, and NutTAG Australia shall be entitled to use, reproduce, modify, adapt, publish, translate, license, create derivative works from and distribute such materials or incorporate such Submissions into any form, medium, or technology now known or later developed throughout the universe, for any purpose whatsoever, commercial or otherwise, without compensation to the author(s) or provider(s) of the Submissions.
4.14. NutTAG Australia does not usually actively supervise, edit, control, monitor or censor the Submissions. However, NutTAG Australia may from time to time review Submissions and you acknowledge that NutTAG Australia retains the right to edit or take down Submissions and may suspend you from participating on the Website and App in NutTAG Australia’s sole discretion. You also acknowledge that some views or opinions expressed are those of other users of the Website and App which are not necessarily shared by NutTAG Australia and NutTAG Australia does not endorse any Submissions or any opinion, recommendation or advice contained in them.
4.15. You irrevocably waive any right which you have or which you may in the future have to make any claim or demand or institute any legal or quasi legal proceedings against NutTAG Australia based on the contents of any Submissions included on the Website and App.
4.18. By posting Submissions on the Website and App you agree to the following:
(a) you are entering into a communication with us and we can contact you via email and other commercial electronic messages in relation to the Submissions or with information that we believe will be directly relevant and of interest to you. You have the option to opt out of this service at any time upon notice and you may contact us to provide the notice.
(b) if you have chosen to receive e-mail updates and newsletters, if any, these can be cancelled at any time and you may contact us to provide the notice of cancellation.
Security of electronic transmissions
4.19. Internet transmissions are never completely private or secure. You understand that any message or information you send to the Website and App may be read or intercepted by others, unless there is a special notice that a particular message is encrypted. Sending an e-mail message to NutTAG Australia does not create any reciprocal obligation or responsibility of NutTAG Australia to you.
Links to other websites
4.20. This Website and App may contain links to other Internet sites on the World Wide Web. NutTAG Australia provides such links for your convenience only, and is not responsible for the content of any website linked to or from the Website and App unless it is owned or published by NutTAG Australia. Links from the Website and App to any other website do not indicate that NutTAG Australia approves of, endorses, sponsors or recommends that website. NutTAG Australia disclaims all warranties, express or implied, as to the accuracy, legality, reliability or validity of any content on any other website.
Use of Website and App by children
PART 5 – GENERAL
5.1. All Intellectual Property rights in NutTAG Australia Products including without limitation the App and those supplied in relation to an Order from this Website or by any authorised retailer or supplier are retained by NutTAG Australia and you are not entitled to reverse engineer or re-brand the Products in any way.
5.2. NutTAG Australia acknowledges that NutTAG Australia products supplied to you may come with guarantees under the consumer law that cannot be excluded. Subject only to the foregoing, NutTAG Australia gives no warranties or guarantees of any kind (whether express or implied) in relation to any NutTAG Australia products.
5.3. The NutTAG Australia’s claim on this Website that the products are waterproof, splashproof, or showerproof is not an express warranty that the products are fully waterproof in all conditions. The products have been tested for water resistance under controlled circumstances and have achieved an IPx5 water rating, indicating that the product will withstand a water stream projected from a nozzle in controlled conditions. NutTAG Australia disclaims all liability in relation to water damage to its products that arises from any use of its products that exceeds water rating IPx5.
5.4. The SIM card used in each NutTAG Australia product relies on a connection to a mobile communications network. If the connection to the mobile communications network is broken for any reason, the device will not work until the connection is restored. A connection may be broken for a number of reasons including the NutTAG Australia product is being used outside the reach or footprint of the mobile communications network used by the SIM card, or the mobile communications network is not functioning or temporarily shut down for maintenance purposes. NutTAG Australia disclaims all liability in relation to any failure of the NutTAG Australia product due to the non‑operation or faulty operation of the SIM card that is beyond the reasonable control of NutTAG Australia.
5.5. Each NutTAG Australia product has been designed for a specific use, which can be found listed on the product pages on the Website. NutTAG Australia disclaims all liability in relation to any use made by you of the NutTAG Australia products for any other purpose.
5.6. NutTAG Australia is under no obligation to keep and maintain your Material or Submissions. NutTAG Australia is not obliged to make any back-up(s) of data submitted by you.
5.7. The inclusion of any advertising or other information or third party material on any page of the Website and App which promotes products or services to be supplied by a party other than NutTAG Australia does not imply that NutTAG Australia endorses or recommends any such party, product or service.
5.8. While all reasonable care has been taken in publishing and maintaining the Website and App, NutTAG Australia and sponsors of any material presented on the Website and App accept no liability or responsibility whatsoever for, or in respect of, any use of the Website and App or any reliance upon material contained on the Website and App or any linked website. You should make your own inquiries and take independent advice tailored to your specific circumstances prior to making any decisions.
5.9. NutTAG Australia will not be liable for any Loss resulting from any action or decision by you in reliance on the material or Content on the Website and App, nor any interruption, delay in operation or transmission of the Website and App. You are solely responsible for any damage to your computer systems or loss of data that results from your use of the Website and App.
5.10. You expressly acknowledge and agree that NutTAG Australia does not exert control over users of the Website and App and NutTAG Australia is not liable either for their opinions or their behaviour, including any information or advice and any defamatory statements or offensive conduct on their part or the breach of any law including those relating to privacy.
5.11. Your use of the Website and App is at your sole risk and you understand that the location data might not be accurate. Location technologies such as GPS are not entirely accurate and are subject to various conditions such as buildings and weather and GPS doesn’t work reliably indoors. NutTAG Australia in not liable for inaccuracies in the location technology.
Limitation of Liability
5.13. To the fullest extent permitted by law, the NutTAG Australia Group will not be liable for any Loss or Consequential Loss that results from any use of or access to, or any inability to use or access the Website and App or the Content even if NutTAG Australia or any other member of the NutTAG Australia Group was made aware of the possibility of such losses. If this provision is unenforceable in whole or in part in any jurisdiction in the world due to the relevant laws in that jurisdiction, then in no event will the liability of the NutTAG Australia Group or any member of that Group to you for any Loss or anything else exceed the lesser sum of AU$1.00 and the amount paid by you, if any, for accessing the Website and App.
Release and indemnity
5.15. You release the NutTAG Australia Group from and against all Loss resulting from:
(a) your use of the Website and App;
(b) any activity by you or a third party relating to Your Account;
(c) your improper use of the NutTAG Australia products;
(d) any injury received by you or related persons in connection with your use of the NutTAG Australia products; and
5.17. You may not assign your rights or negate your obligations under this Agreement without the written consent of NutTAG Australia.
5.18. NutTAG Australia may assign its rights or negate its obligations without your prior approval.
5.19. NutTAG Australia will not be responsible for delays or failure of performance resulting from acts beyond its reasonable control. Such acts shall include, but not be limited to, acts of God, strikes, walkouts, riots, acts of war, epidemics, failure of suppliers to perform, governmental regulations, power failures, earthquakes, or other disasters.
5.21. If you request any amendments to this Agreement as part of your Order or in any other standard business forms employed by you (except as to the quantities of products requested in an Order in accordance with this Agreement) such amendments will not apply or be binding on NutTAG Australia unless a variation is agreed in accordance with clause 5.20.
5.23. No delay or failure in exercising any right hereunder and no partial or single exercise thereof shall be deemed to constitute a waiver of such right or any other rights hereunder. No consent to a breach of any express or implied term of this Agreement shall constitute consent to any prior or subsequent breach.
Consents and approval
Governing Law and Forum
‘Consequential Loss’ means any form of indirect or consequential Loss including any third party Loss, loss or corruption of data, loss of profits, loss of revenue, business disruption, loss of opportunity, loss of anticipated savings, pure economic Loss and any increased operating costs suffered or incurred by any person whether arising in contract or tort (including negligence) or under any statute;
‘GST’ means the goods and services tax implemented under the GST Laws;
‘GST Laws’ means A New Tax System (Goods and Services Tax) Act 1999 (Commonwealth of Australia) and all related Commonwealth legislation, and includes all regulations, determinations and rulings associated with or made under any such legislation;
‘Intellectual Property’ means all present and future rights, title and interest conferred by statute, common law or equity in or in relation to copyright, trade marks, service marks, designs, inventions (including patents), circuit layouts, business and domain names, whether or not now existing and whether or not registered or registrable and includes:
(a) any right to apply for the registration of these rights;
(b) all renewals and extensions of these rights; and
(c) all ancillary rights or related rights;
‘Loss’ means all liabilities, losses, damages, expenses and costs (including legal costs and disbursements on a full indemnity basis and whether incurred or awarded), of any kind and nature whether arising in contract or tort (including negligence) or under any statute;
‘Moral Rights’ means all present and future rights of integrity of authorship, rights of attribution of authorship, rights not to have authorship falsely attributed and rights of a similar nature conferred by statute anywhere in the world;
‘Taxable Supply’ has the same meaning as in the GST Laws;
‘Tax Invoice’ has the same meaning as in the GST Laws;
(a) headings are for convenience only and do not affect interpretation;
(b) words importing the singular include the plural (and vice versa), and words indicating a gender include every other gender;
(c) an obligation on two or more parties, binds all of them jointly and each of them severally;
(d) a reference to a ‘person’ includes a body corporate, an unincorporated body or other entity and conversely;
(e) a reference to any party to this Agreement or any other agreement or document includes the party’s successors and permitted assigns;
(f) an agreement, representation or warranty on the part of two or more persons binds each and all of them and in favour of two or more persons is for the benefit of each and all of them;
(g) a reference to any agreement or document is to that agreement or document as amended, novated, supplemented, varied or replaced from time to time, except to the extent prohibited by this agreement or that other agreement or document;
(h) a reference to any legislation or to any provision of any legislation includes any statutory modification or re-enactment of it or any legislative provision substituted for it, and all ordinances, by-laws, regulations, rules and statutory instruments (however described) issued under it;
(i) a reference to conduct includes any omission and any statement or undertaking, whether or not in writing;
(j) this document or any part of it is not to be construed against a party because that party drafted or proposed it;
(k) where a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;
(l) the word ‘includes’ in any form is not a word of limitation;
(m) a reference to ‘$’ or ‘dollar’ is to Australian currency (unless otherwise stated);
(n) if any day appointed or specified by this Agreement for the payment of any money or doing of anything falls on a day which is not a business day, the day so appointed or specified shall be deemed to be the next business day;
(o) expressions used in this Agreement that are defined in the Copyright Act 1968 (Commonwealth of Australia) that are not separately defined in this Agreement have the meanings attributed to them in that Act.
(p) all warranties will have the force and effect of conditions.
(q) all warranties, representations, undertakings, releases and indemnities, and all limitation of liabilities will survive termination or expiration of this Agreement for any reason and are for the benefit of each party’s successors and permitted assigns.