End User Agreement and Terms and Conditions
WARNING NOTE:
Improper use of the ANCAR anti-theft system products, may result in property loss, damage, serious injury or even death. While this document and other information included with the products provide guidance on how to most safely use the products, failure to exercise due care, skill and diligence may put you at risk of property loss, damage, serious injury or death. You must read ALL instructions and safety messages and warnings in this document and the User Guide.
These Terms and Conditions (the “Agreement”) describe the terms and conditions applicable to your use of our website (https://www.ancar.com.au/), the Device, Services, and/or other electronic device(s) provided by ANCAR.
In this Agreement, we refer to ourselves as ANCAR or “us” or “we”; we refer to you as “customer” or “you.”
By accessing or using the Device, Software, Services, or accessing our website or social media, you intend and expressly agree to be bound by all the terms and conditions of this Agreement and the Privacy Policy (available at https://www.ancar.com.au/), which is incorporated by reference.
If you do not agree to these terms and conditions, you may not use the Device, Services, website or social media.
1. THE WEBSITE & SOCIAL MEDIA
GENERALLY
1.1 Our website and social media may consist of information, opinions, text, graphics, animations, links, audio, video, software, photos, music, sounds, and other material and data provided by ANCAR, third parties or other users formatted, organised, and collected in a variety of forms including, without limitation, courses, bulletin board postings, databases, and electronic mail services.
1.2 The website and social media provide information of a general nature to members of the public, and advanced features for registered users such as commenting on material or engaging in online collaboration.
USE OF WEBSITE AND SOCIAL MEDIA
1.3 Breach of these terms and conditions may result in registered user’s access to the advanced or subscription features of the website or social media being cancelled at the sole discretion of ANCAR.
1.4 These terms and conditions must also be read in conjunction with the privacy information of the public aspects of the ANCAR website.
1.5 The website, social media, Device and Software are available only to individuals who are at least 16 years old (and at least the legal age in your jurisdiction). You represent and warrant that if you are an individual, you are at least 16 years old and of legal age in your jurisdiction to form a binding contract, and that all registration information you submit is accurate and truthful. ANCAR reserves the right to ask for proof of age from you and your account may be suspended until satisfactory proof of age is provided. ANCAR may, in its sole discretion, refuse to offer the website, social media, Device and Software to any person or entity and change its eligibility criteria at any time. This provision is void where prohibited by law and the right to access the service is revoked in those jurisdictions.
WEBSITE AND SOCIAL MEDIA COPYRIGHT AND INTELLECTUAL PROPERTY
1.6 Material appearing on this website is subject to copyright vested in ANCAR or third parties. All content on this website is protected by Australian and international copyright and other intellectual property laws. Users may not do anything which interferes with or breaches those laws or the intellectual property rights in the content.
1.7 Users may download, display or print a copy of material from this website and social media only for personal, non-commercial use, or use within their own organisations provided that:
(a) the website of ANCAR is acknowledged as the source, including the reference https://www.ancar.com.au/;
(b) the material is not amended or modified in any way (including any copyright notice); and
(c) this permission is revocable at any time by ANCAR.
1.8 All other use of the website and social media content is not permitted without the copyright or trademark owner’s permission. ANCAR asserts the right to be recognised as the author of the material and the right to have its material remain unaltered.
1.9 Apart from any use as permitted under the Copyright Act 1968 (Cth), all other rights are reserved.
1.10 Nothing displayed on the website and social media should be construed as granting any licence or right to use, reproduce or adapt the ANCAR logo without the express written permission of ANCAR.
1.11 Requests and inquiries concerning reproduction and rights should be sent to info@vascarauto.com.au.
1.12 The website and social media may include third party content which is subject to that third party’s terms and conditions of use. Trade marks, brand names, product names, and company names of or related to the products appearing on this website are the property of their respective owners. ANCAR does not claim to own any of these trademarks nor claim that ANCAR is related to, endorsed by, or in any other way connected or associated with these companies. Nothing on this website or social media should be construed as granting any licence or right for users to use that content. Users should consult the third party’s terms and conditions of use in relation to any third party content. External website images, if any, accessible on https://www.ancar.com.au/ or our social media are used with the permission of the authors of those websites or other social media, and must not be reproduced without obtaining the permission of the author of those materials.
1.13 The copyright in material appearing on websites and social media which are linked from this website or social media vest in the author of that material, or the author’s licensee (subject to the operation of the Copyright Act 1968 (Cth)). ANCAR recommends that users refer to the copyright statements at those websites before making use of any material. Links to third party websites do not constitute any endorsement or approval of those websites or the owner of those websites.
CONTRIBUTING CONTENT
1.14 If users submit content for the website or social media in any format, including text, photographs, graphics, video or audio, they grant ANCAR an irrevocable, non-exclusive, royalty-free, perpetual licence to publish that content on the website or social media. Users acknowledge that content submitted by them may be accessible by the public through the website and through social media. Users agree that ANCAR can use that content in any way, now and in the future. ANCAR also reserves the right not to use or publish on the website and social media any submitted content.
1.15 Users warrant that they have all of the necessary rights, including copyright, in the content they contribute, that their content is not defamatory and that it does not infringe any law. Users also warrant that the content they contribute complies with any relevant professional obligations (if any).
1.16 Users waive any moral rights in their contribution for the purposes of its submission to and publication on the website and social media.
1.17 ANCAR does not provide any protection as against third parties to the intellectual property in any material submitted. By submitting material, users warrant that they have all necessary permissions and licences for the use of that material and agree to indemnify ANCAR against any loss, liability, claim or demand (including legal fees) claimed by any third party arising from a breach of that warranty or these terms and conditions.
COLLABORATION SPACES AND USER SUBMITTED CONTENT
1.18 Users acknowledge that the website and social media is created, managed, and administered by ANCAR and may provide opportunities for registered users to post comments and collaborate with other users.
1.19 ANCAR is not responsible for, or adopts as a statement of its own, content posted by other users, such as comments or other material.
1.20 You are responsible for all of your activity in connection with the website and social media.
1.21 You shall not, and shall not permit any third party using your account to, take any action, or submit content, that:
(a) infringes any patent, trademark, copyright, or other right of any other person or entity;
(b) is false, misleading, or inaccurate;
(c) is unlawful, threatening, abusive, harassing, defamatory, deceptive, fraudulent, tortious, obscene, offensive, profane, or invasive of another’s privacy;
(d) contains software viruses or any other computer codes, files, or programs that are designed or intended to disrupt, damage, limit, or interfere with the proper function of any software, hardware, or telecommunications equipment or to damage or obtain unauthorised access to any system, data, password, or other information of ANCAR or any third party;
(e) is made in breach of any legal duty owed to a third party, such as a contractual duty or a duty of confidence; or
(f) impersonates any person or entity, including any employee or representative of ANCAR.
1.22 Users recognise that ANCAR cannot and does not intend to screen communications in advance, nor does it exercise any control in advance whatsoever over the content of the information passing through the website or social media submitted by users.
1.23 Notwithstanding the above, ANCAR will monitor the content of the website and social media from time to time and will remove any content it deems to be inappropriate or unacceptable to protect itself and users.
WEBSITE AND SOCIAL MEDIA – GENERAL TERMS
1.24 These terms and conditions will be governed by and interpreted in accordance with the laws of Victoria, Australia.
1.25 Users will not use this website or social media for any purpose or in any way which is unlawful.
1.26 In relation to any dispute arising out of the use of this website or our social media, the user and ANCAR agree to irrevocably submit to the non-exclusive jurisdiction of the courts of Victoria, Australia and courts competent to hear appeals from those courts.
1.27 The omission of ANCAR to exercise any right under these terms and conditions will not constitute a waiver of such right unless formally waived in writing by ANCAR.
1.28 The website and social media may contain errors and may not be complete or current. ANCAR reserves the right to the fullest extent allowed by law to correct any errors or omissions and to change or update information at any time without prior notice.
WEBSITE AND SOCIAL MEDIA LIABILITY AND INDEMNITY
1.29 ANCAR does not warrant the accuracy, reliability or completeness of the content on the website or social media. The content is provided to users ‘as is’ and on an ‘as available’ basis and on the condition that users undertake all responsibility for assessing the accuracy of the content and rely on it at their own risk. All content on the website and social media may be changed without notice.
1.30 ANCAR will have no responsibility or liability in relation to any loss or damage that users incur, including damage to their Device or Software, arising from their use or access to this website or social media.
1.31 ANCAR does not warrant that functions contained in the website and social media content, such as hyperlinks, will be uninterrupted or error free, that defects will be corrected or the server that makes it available, are free of viruses, malicious computer code or bugs.
1.32 Users indemnify ANCAR, its directors, members, officers, employees and agents against any action, claim, loss or expense which it incurs which arises from their use of the website and social media, including as a result of them submitting content to the website or social media in any form.
1.33 In no event shall ANCAR, its subsidiaries, affiliates or any of their respective officers, directors, employees, agents, successors, subsidiaries, suppliers, affiliates, or third parties providing information on this website and social media be liable to any user of the website or social media or any other person or entity for any direct, indirect, special, incidental, punitive, consequential or exemplary damages (including, but not limited to damages for loss of profits, loss of data, or loss of use) arising out of the use or inability to use the website or social media, whether based upon warranty, contract, tort, or otherwise, even if ANCAR has been advised or should have known of the possibility of such damages or losses. In no event shall the total liability of ANCAR, its affiliates or any of their respective officers, directors, employees, agents, successors, subsidiaries, suppliers, affiliates or third parties providing information on this website or social media to you for all damages, losses, and causes of action resulting from your use of this website or social media, whether in contract, tort (including, but not limited to, negligence) or otherwise, exceed the amount you paid to ANCAR in connection with the event giving rise to such liability.
WEBSITE AND SOCIAL MEDIA DISCLAIMER
1.34 The material on this website and on our social media is provided for general information in summary form. The content does not constitute recommendations and should not be relied on as such.
1.35 While every care has been taken in the preparation of this material, ANCAR does not accept responsibility for any errors, including those caused by negligence, in the material. ANCAR makes no statements, representations or warranties about the accuracy or completeness of the information and users should not rely on it. Users are advised to make their own independent inquiries regarding the accuracy of any information provided on this website and social media.
1.36 Neither ANCAR, nor its affiliates, directors, officers, employees, agents, contractors, successors or assigns will be liable for any damages, whatsoever arising out of, or in any way related to, the use of this website, and social media, and any other website linked to this website or social media. This limitation applies to direct, indirect, consequential, special, and punitive or other damages you or others may suffer as well as damages for loss of profits, business interruption or the loss of data or information.
1.37 The website and social media may include third party content which is subject to that third party’s terms and conditions of use. Nothing on this website should be construed as granting any licence or right for users to use that content. Users should consult the third party’s terms and conditions of use in relation to any third party content.
1.38 ANCAR is not responsible for the accuracy of information contained on other websites or social media by links from this website or social media and makes no warranties that the information contained on this website or social media or any links from this website or social media are free of infection by computer viruses or other contamination. ANCAR disclaims all responsibility and all liability (including liability for negligence) for all expenses, losses, damages and costs you might incur as a result of the information being inaccurate or incomplete in any way.
1.39 Links to third party websites do not constitute endorsement or approval of those websites or the owners of those websites.
2. THE GOODS
2.1 ANCAR offers to sell the Goods to you through authorised distributor/s from time to time and as such the offer to sell the Goods, including the Device, to you is on the terms and conditions provided by such authorised distributor/s. For the avoidance of doubt, ANCAR does not sell products direct to Customers.
2.2 Ordering, cancelling orders, payments, invoices, GST, shipping and delivery, and all related matters are governed by the distributor/s’ terms and conditions as applicable from time to time.
2.3 Where the distributor/s’ terms and conditions extend, or vary, the terms and conditions contained herein, the Customer acknowledges that the distributor/s are solely liable for such extended terms and unless agreed in writing, ANCAR will in no way be liable for such extended terms – as an example, if the distributor offers an extended warranty in excess of what ANCAR offers, then the distributor shall solely be liable for warranty claims for the period that is in excess of the period offered by ANCAR.
3. THE SOFTWARE
GRANT OF LICENSE
3.1 ANCAR conditionally offers to provide the Software to you on the terms contained in this Agreement. For the avoidance of doubt, ANCAR’s offer under this clause is only open to Customers who own the Device.
3.2 Subject to the above, ANCAR grants you a limited, non-exclusive license to download, install and use the Software for your personal and internal business use, on the smartphone, tablet, or other mobile device, only in connection with Device owned by you.
3.3 You may accept ANCAR’s offer to provide the Software by downloading, and/or signing-up (if applicable from time to time), the Software.
3.4 By accepting the Software, you will be entitled to access the Software until such Software is cancelled, or this Agreement terminated.
3.5 If applicable, you are responsible for ensuring ANCAR has accurate and current information, including current contact information. If applicable, you are further responsible for regularly reviewing the email account used for signing up for the Software with ANCAR for any communications from ANCAR.
SOFTWARE OUTAGES
3.6 You acknowledge and agree that at times the Software may be inaccessible or inoperable for any reason whatsoever, including, without limitation:
(a) equipment malfunctions;
(b) periodic maintenance procedures or repairs which ANCAR may undertake from time to time with or without notice to you; or
(c) causes which are beyond the control of ANCAR or which are not reasonably foreseeable.
SOFTWARE UPDATES
3.7 You acknowledge that ANCAR has no obligation to provide you with any Software Updates to the Software.
3.8 From time to time, ANCAR may develop the Software, including upgrades, patches and other modifications to improve the performance of the Software and/or the Device or for other reasons in our sole discretion. You agree that ANCAR may automatically install the Software Updates and similar without providing any additional notice to you or receiving any additional consent from you.
END OF LIFE OF SOFTWARE
3.9 We reserve the right to create a Software ‘end-of-life’ (EOL) and/or ‘end-of-support/service’ (EOSL) policy.
3.10 In the event that we do not have a policy in place from time to time, we may EOL and/or EOSL the Software by providing reasonable prior written notice.
LEGACY PRODUCTS
3.11 If you have a legacy ANCAR product, some of the features and limits that apply to that product may be different than those that appear in the current ANCAR Device and/or Software description.
COMPATIBILITY OF THE SOFTWARE AND DEVICE
3.12 Notwithstanding other clauses, the Software is not guaranteed or warranted to work with all software and/or hardware.
3.13 The functionality and performance of the Software is contingent upon the software and hardware capabilities of the user’s mobile device. Variations in device specifications and software versions may affect the Software’s performance. ANCAR does not guarantee or warrant uniform functionality across all devices and is not responsible for variations resulting from the user’s device specifications.
3.14 ANCAR does not guarantee or warrant continuous compatibility or functionality of the Software when changes or updates to a user’s mobile device occur. ANCAR is not responsible for any incompatibility issues or loss of functionality that may arise due to such changes or modifications made to the user’s device after the initial installation of the Software. Users are advised to regularly check for updates to the Software that may address compatibility issues and to contact ANCAR support for assistance with specific compatibility problems.
3.15 ANCAR strives to ensure compatibility of the Device with a wide range of vehicle models and makes. However, ANCAR does not guarantee or warrant that the Device will be compatible with every vehicle, particularly as vehicle configurations, settings, aftermarket modifications, or the presence of other devices may affect the Device functionality. While initial compatibility may be confirmed, subsequent changes to a vehicle’s configuration or the addition of conflicting devices may impact the effectiveness of the Device. ANCAR is not responsible for any incompatibility issues that arise due to such changes or modifications made to the vehicle after the installation of the Device.
OPEN SOURCE AND OTHER THIRD-PARTY COMPONENTS
3.16 Notwithstanding the license grant, you acknowledge that certain components of the Software may be covered by third-party licenses, including “open source” software licenses. To the extent required by such licenses, the terms of such licenses will apply in lieu of the terms of these terms.
4. IMPORTANT INFORMATION
IMPORTANT NOTICE
4.1 ANCAR makes no warranty or representation that use of the Goods or Services will affect or increase any level of safety of your vehicle.
4.2 You acknowledge that the Goods and Services are not intended to be 100% reliable and ANCAR cannot, and does not, guarantee that your vehicle will not be stolen while using the ANCAR product.
4.3 ANCAR expressly disclaims any liability associated with a Customer failing to comply with the User Guide for the ANCAR product, including but not limited to the Customer failing to remember or properly record their PIN number which is irrecoverable.
DEVICE INSTALLATION
4.4 The effectiveness of the Device and Software is dependent upon the Device being installed in accordance with the Device installation instructions (made available with the Device), and the Software being used in accordance with the User Guide.
4.5 While ANCAR provides detailed installation guidelines with every Device, it is the installer of the Device who is responsible for the correct installation of the Device. ANCAR is not liable in any way for any loss or damage, either directly or indirectly caused or resulting from incorrect or defective installation of the Device.
BLUETOOTH RELIANCE
4.6 The Device is reliant upon Bluetooth signals to send and receive data.
4.7 ANCAR is not liable in any way for any loss or damage, either directly or indirectly caused, or resulting from the Device or Software being unable to access Bluetooth as a result of any reason outside of the control of ANCAR.
PROHIBITED AND UNAUTHORISED USE
4.8 Privacy Laws and other laws applicable in your jurisdiction may impose certain responsibilities on you and your use of the Goods and Services. You agree that it is your responsibility, and not the responsibility of ANCAR, to ensure that you comply with any applicable laws when you use the Goods and Services.
4.9 Notwithstanding anything to the contrary in this Agreement, ANCAR may temporarily suspend access to the Software provided to you and any other third-party for security purposes, to prevent illegal or fraudulent activity, to comply with the requests of any legal agency or government entity, or if you violate or breach this Agreement or the Privacy Policy.
ACKNOWLEDGMENT OF POTENTIAL IMPACT ON VEHICLE WARRANTY
4.10 The Customer is responsible for reviewing their vehicle warranty conditions prior to the installation of the ANCAR product.
4.11 The Customer acknowledges and agrees that installation and use of ANCAR products may void or otherwise adversely affect warranties associated with the Customer’s vehicle. The Customer assumes all risks and responsibilities associated with the installation and use of ANCAR products and hereby forever disclaims any liability of ANCAR in relation to any impact on the Customer’s vehicle warranties.
PREMIUM OR PAID SERVICES
4.12 ANCAR continues to innovate and develop products and as such ANCAR reserves the right to introduce new services, premium or paid services that may be applicable to the Software, Device or otherwise, for a fee, and/or on a subscription model, in the future. Such services shall be offered on an opt-in basis, and customers will have the choice to purchase such new services, premium or paid services or not. The terms and conditions of such new services, premium or paid services, including the fees and/or subscription model, will be communicated to customers at the time of the offer., and may vary these terms and conditions. Customers with existing products will not be required to opt-in to continue using existing products as originally offered, however where a customer does not opt-in, such new services, premium or paid services will not be applicable to that customer.
5. COMPETITION AND CONSUMER ACT 2010 (CTH)
5.1 Nothing in this Agreement is intended to have the effect of contracting out of any applicable provisions of the CCA, except to the extent permitted by the CCA.
5.2 Where the provisions of the CCA apply, the provisions of these Terms will be read subject to the application of the CCA and in the case of any conflict, the provisions of the CCA will apply.
6. INTELLECTUAL PROPERTY RIGHTS
6.1 All Intellectual Property Rights in the website, social media, the Services, the Device and our Software are the exclusive property of ANCAR or its licensors. All Intellectual Property Rights that subsist in third party software are the property of and are reserved to third party licensors. Such licensors may be the relevant author or the publisher.
6.2 ANCAR reserves all Intellectual Property Rights, including but not limited to copyright in the material, content and Services provided by ANCAR.
6.3 Nothing in this Agreement provides you with the right to copy or use, including but not limited to, any digital content, trademarks, marketing material, logos, domain names, and brands owned or licensed by ANCAR.
6.4 Subject to the terms and conditions of this Agreement, you are granted a limited non-exclusive license to use the Device (including but not limited to any intellectual property subsisting in the Device, such as the subject matter of any patent or similar held by ANCAR) for the sole and express purpose of enabling you to receive the Services from ANCAR. This License does not grant you any rights to use any other intellectual property owned by ANCAR for any other purpose, including but not limited to using the Device for any purpose other than to receive the Services from ANCAR.
6.5 Subject to the terms and conditions of this Agreement, you are granted a limited non-exclusive license to use the Software for the sole and express purpose of using the Device in conjunction with the Services. This License does not grant you any rights to use ANCAR proprietary interfaces or any other intellectual property owned by ANCAR for the design, development, manufacture, licensing or distribution of third-party devices and accessories, or third party software applications, for use with Device. This licence does not grant you any rights to use any other intellectual property owned by ANCAR for any other purpose, including but not limited to using the Software for any purpose other than to receive the Services from ANCAR.
6.6 Subject to the terms and conditions of this License, you are granted a limited non-exclusive license to download Software Updates that may be made available by ANCAR for your model of the Device to update or restore the software on any such Device that you own or control. This License does not allow you to update or restore any Device that you do not control or own, and you may not distribute or make the Software Updates available over a network where they could be used by multiple devices or multiple computers at the same time.
6.7 This Licence expressly prohibits you from modifying or altering the Software Updates in any way.
6.8 You may not, and you agree not to or enable others to, copy (except as expressly permitted by this License), decompile, reverse engineer, disassemble, attempt to derive the source code of, decrypt, modify, or create derivative works of the Device, the Services, the Software and/or any services provided by the Device, the Services or the Software or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law or by licensing terms governing use of open-source components that may be included with the Device, the Services or the Software). You agree not to remove, obscure, or alter any proprietary notices (including trademark and copyright notices) that may be affixed to or contained within the Device, the Services or the Software.
6.9 If you provide any communications or materials to ANCAR by mail, email, telephone, or otherwise, suggesting or recommending changes to the Device, Services or similar, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (Feedback), you acknowledge that ANCAR may, without any further notice to you, use such Feedback, irrespective of any other obligation or limitation between the parties governing such Feedback. You acknowledge that ANCAR may in its discretion use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever.
7. PRIVACY
7.1 You acknowledge and agree that by purchasing a Device and/or engaging ANCAR to provide the Services, you expressly consent and agree to the collection, holding, using and disclosing of personal data and sensitive information about you and information about your use of the Services in accordance with our Privacy Policy, which is incorporated into, and forms an integral part of, this Agreement.
7.2 You acknowledge and agree that you have read and understood our Privacy Policy and agree that all information and data collected by ANCAR in connection with the Device or Services, or any future Service provided by ANCAR, and this Agreement, may be collected, held, used and disclosed in accordance with our Privacy Policy.
7.3 ANCAR may retain any data to which you are entitled but leave in our possession (except documents deposited in safe custody) for no more than seven (7) years and on the undertaking that ANCAR have your authority to destroy the file seven (7) years.
7.4 ANCAR may not directly collect or store comprehensive customer data, and accordingly any necessary communication that requires access to your personal information may be conducted through our authorised distributors. ANCAR may occasionally need to communicate directly with customers for services or notices related to the Software or other direct services. In such cases, ANCAR may utilise contact details provided by the authorised distributors, or via notifications directly through the Software under the conditions that these communications are essential and in compliance with our 19 Policy. Customers are encouraged to keep their contact information up to date with the authorised distributors to ensure timely and accurate communications. ANCAR is not responsible for Data collected or handled by its authorised distributors or third-parties. Please consult the privacy policy of the authorised distributors for details on how your information is otherwise managed and protected.
MACHINE LEARNING
7.5 We may, as permitted by this Agreement, use your data in an anonymized manner for machine learning to support certain product features and functionality within the Services.
7.6 For more information on these practices please see the Privacy Policy.
CONTACTING YOU
7.7 We can contact you by:
(a) writing to you at the postal address you most recently provided to us;
(b) emailing you at the email address you most recently provided to us;
(c) publishing a notice on our website in a portal accessible by you; or
(d) sending you an SMS or contacting you via the telephone number you most recently provided to us.
7.8 If we need to give you notice under this Agreement, we will do so by using one (or a combination) of the above methods.
7.9 You must promptly notify us of any changes to your contact details.
8. DISPUTE RESOLUTION
8.1 If a dispute arises between the parties in relation to this Agreement, the dispute must be dealt with in accordance with this clause.
8.2 Any party claiming that a dispute exists must notify the other party to the dispute (Second Party) in writing of the nature of the dispute.
8.3 If the dispute is not resolved by Agreement within five (5) Business Days of the Second Party receiving the notice referred to in paragraph (2) above, either party may refer the matter to mediation conducted by a mediator agreed between the parties within a further five (5) Business Days or failing Agreement within that period, as appointed by the executive director for the time being of the Australian Commercial Disputes Centre Limited. The costs of the mediator shall be borne equally between the disputing parties. The chosen mediator shall determine the procedures for the mediation. The chosen mediator will not have the power or authority to make any other determination in relation to the dispute.
8.4 If the parties have not mediated a resolution of the dispute within ten (10) Business Days of the selection of a mediator, neither party shall be obliged to continue any attempt at mediation under this clause, and either party may then commence such legal proceedings as it thinks fit in relation to the dispute.
9. TERMINATION
9.1 This Agreement may be terminated by either party in writing to the other. Termination will be effective from 11:59PM on the last day of the month in which the written termination is received by the non-terminating party or as otherwise specified in this Agreement.
9.2 If you fail to perform any of your obligations under this Agreement, ANCAR may elect to:
(a) suspend performance of their obligations under this Agreement, which includes suspending the Services, until you have rectified such failure; or
(b) immediately terminate this Agreement by written notice, without providing for any notice period that would otherwise apply. ANCAR will give you notice of their intention to terminate the Agreement, setting out the grounds on which the notice is based.
10. LIABILITY
10.1 SUBJECT TO THE AUSTRALIAN CONSUMER LAW, YOU USE THE GOODS AND SERVICES AT YOUR OWN RISK. YOU HAVE SOLE RESPONSIBILITY FOR ADEQUATE PROTECTION AND BACKUP OF DATA AND/OR EQUIPMENT USED IN CONNECTION WITH YOUR USE OF THE SERVICE, AND YOU AGREE TO HOLD ANCAR HARMLESS FROM, AND YOU COVENANT NOT TO SUE FOR, ANY CLAIMS (EXCEPT THOSE PERMITTED UNDER THE AUSTRALIAN CONSUMER LAW) BASED ON YOUR USE OF THE GOODS OR SERVICES, INCLUDING CLAIMS FOR LOST DATA OR CONTENT, WORK DELAYS OR LOST PROFITS RESULTING FROM YOUR USE OF THE PRODUCT OR SERVICES.
10.2 OTHER THAN ANY GUARANTEES THAT CANNOT BE EXCLUDED UNDER THE AUSTRALIAN CONSUMER LAW, ANCAR PRODUCTS AND SERVICES ARE PROVIDED ‘AS IS,’ AND ANCAR DOES NOT MAKE ANY WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY. ANCAR DOES NOT IN ANY WAY GUARANTEE THE QUALITY, DATA CONTENT OR LEGALITY OF INFORMATION, CONTENT, GOODS OR SERVICES THAT ARE TRANSFERRED, RECEIVED, PURCHASED OR OTHERWISE MADE AVAILABLE OR OBTAINED BY WAY OF THE ANCAR WEBSITE OR THE SERVICES. EXCEPT AS SET FORTH IN ANY GUARANTEES YOU MAY BE ENTITLED TO UNDER THE AUSTRALIAN CONSUMER LAW. ANCAR DOES NOT WARRANT THAT ANCAR PRODUCTS OR SERVICES WILL BE UNINTERRUPTED, OR ERROR-FREE, OR THAT DEFECTS WILL BE CORRECTED.
10.3 UNDER NO CIRCUMSTANCES (EXCEPT AS OTHERWISE CANNOT BE EXCLUDED UNDER THE AUSTRALIAN CONSUMER LAW), INCLUDING NEGLIGENCE, SHALL ANCAR BE LIABLE FOR ANY SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OR LOST PROFITS THAT RESULT FROM THE DISTRIBUTION OR USE OF, OR THE INABILITY TO USE, THE CONTENT OR MATERIALS ON THIS WEBSITE, THE GOODS, OR THE SERVICES IRRESPECTIVE OF NOTICE OF THE POSSIBILITY OF SUCH DAMAGES.
LIMITATIONS OF LIABILITY
10.4 EXCEPT AS OTHERWISE PROVIDED BY THE AUSTRALIAN CONSUMER LAW, IN NO EVENT SHALL ANCAR’S TOTAL LIABILITY TO A CUSTOMER FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT OR OTHERWISE) EXCEED THE AMOUNT PAID BY THAT CUSTOMER, IF ANY, FOR THE GOODS OR SERVICES AT ISSUE WITHIN THE PRIOR TWELVE (12) MONTHS. THIS LIMITATION IS CUMULATIVE AND WILL NOT BE INCREASED BY THE EXISTENCE OF MORE THAN ONE INCIDENT OR CLAIM.
10.5 ANCAR DISCLAIMS ALL LIABILITY OF OR ASSOCIATED WITH ITS LICENSORS AND SUPPLIERS.
10.6 TO THE EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT AS OTHERWISE PROVIDED BY THE AUSTRALIAN CONSUMER LAW, UNDER NO CIRCUMSTANCES WILL ANCAR BE LIABLE IN ANY WAY FOR ANY CONTENT, INCLUDING, BUT NOT LIMITED TO, ANY ERRORS OR OMISSIONS IN ANY CONTENT, OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED IN CONNECTION WITH USE OF OR EXPOSURE TO ANY CONTENT POSTED, EMAILED, ACCESSED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE WEBSITE, GOODS OR SERVICES.
11. BAR TO PROCEEDINGS
11.1 This Agreement may be pleaded by the parties as a full and complete defence to any claim, suit or other action in relation to the subject matter herein.
12. RELATIONSHIP
12.1 The parties acknowledge and agree that the relationship between them is a contractual one for the provision of good and/or services, and that this Agreement does not and is not intended to create any other relationship at law, including one of employer/employee, principal/agent or fiduciary relationship.
13. WAIVER
13.1 A waiver by any party of any right arising from a breach of this Agreement must be in writing and signed by the party granting the waiver.
14. GOVERNING LAW AND JURISDICTION
14.1 This Agreement is governed by and must be construed according to the laws of:
(a) Victoria, Australia; or
(b) if not possible, Australia.
14.2 The parties irrevocably submit to the exclusive jurisdiction of the courts of, or exercising jurisdiction in, Victoria, or if not possible, Australia, with respect to any claim, suit or action which may be brought at any time and relating in any way to this Agreement.
15. AMENDMENT
15.1 ANCAR may amend any term of this Agreement in its unfettered discretion from time to time by providing you with notice that the terms of this Agreement have been amended. If you continue to use the Services after receiving notice that the terms of this Agreement have been amended, the parties agree that your conduct in continuing to use the Service after receiving notice of the amendments shall be deemed to constitute acceptance to be bound by the amended terms and conditions. If you do not wish to continue using the Services in light of the amendments to the terms of this Agreement, they may terminate the Agreement pursuant to the provisions of this Agreement.
16. GENERAL
16.1 This Agreement is the entire agreement, together with the Privacy Policy, between the parties on anything connected to or arising from the subject matter of the Agreement.
16.2 You warrant that you have entered into this Agreement without relying on any representation whatsoever by ANCAR, its directors, officers, agents, employees and any other person purporting to represent or be associated with ANCAR.
16.3 ANCAR may assign, novate or transfer this Agreement and the Services, or any part thereof, to any third party, including our related bodies corporate worldwide, without requiring your consent. You may not assign this Agreement in whole or in part for any reason.
16.4 If all or part of a provision of this Agreement is void, voidable, unenforceable or illegal for any reason but would not be if it were read down (and it is capable of being read down), the provision will be read down accordingly. In the event that the provision is not capable of being read down, that provision shall be severed from the Agreement and the remainder of the Agreement will continue to be valid and enforceable.
16.5 Termination of this Agreement will not end those provisions that are capable of surviving the termination of this Agreement.
16.6 Any notice pursuant to this Agreement may be delivered by hand, by prepaid letter or email to the address details provided for each party. Any such notice will be deemed to have been served when delivered (if delivered by hand) or forty-eight (48) hours after posting (except by prepaid letter) or if sent by email, when the email enters the recipient’s mail server (unless an out of office or similar notification is received).
17. WARRANTY, REFUNDS AND RETURNS
GENERAL TERMS AND CONDITIONS
17.1 The Australian Competition and Consumer Act (2010) (including the Australian Consumer Law) as well as other laws in Australia guarantee certain conditions, warranties and undertakings, and give you other legal rights, in relation to the quality and fitness for purpose of ANCAR products sold in Australia.
17.2 In Australia, our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure. What constitutes a major failure is set out in the Australian Consumer Law.
17.3 Nothing in this Warranty purports to modify or exclude the conditions, warranties and undertakings, and other legal rights, under the Australian Competition and Consumer Act and other Australian laws. This Warranty gives you additional protection for your ANCAR product, and identifies a preferred approach to resolving warranty claims which will be quickest and simplest for all parties, subject to the exclusions, terms and conditions below.
COVERAGE AND APPLICATION
17.4 ANCAR warrants that your ANCAR product is of acceptable quality and does not have a latent defect.
PARTS AND LABOUR WARRANTY
17.5 This Warranty covers corresponding costs for parts and labour which may be required to repair the ANCAR product, part or accessory if ANCAR or its agent repair the item under this Warranty.
WARRANTY PERIOD
17.6 Each ANCAR product has a 12 month warranty. In all cases the commencement date for the period is the actual day of purchase, as reflected on the authorised reseller’s or distributor’s invoice / receipt provided to you. A claim must be made within the Warranty Period. This Warranty does not cover any defects not notified to ANCAR within the Warranty Period, although you may have statutory rights outside of the Warranty Period.
WARRANTY CLAIM PROCESS
17.7 If you consider that the ANCAR product which you have purchased is not of acceptable quality, has a latent defect, or is otherwise not compliant with the conditions, warranties, undertakings, and legal rights given to you under Australian Law (for example, it appears faulty, or does not work at all or properly), you can make a claim under this Warranty.
17.8 If you wish to make a claim under this Warranty, you should:
Motor One Group
(03) 8809 2700
Level 9, 3 Nexus Court Mulgrave VIC 3170
info@motoronegroup.com
PROOF OF PURCHASE
17.9 In order to make a valid claim under this Warranty it is essential that you provide a copy of your proof of purchase of the ANCAR product, whether in person, or by email. A claim under this Warranty is not formally made unless and until that proof of purchase is provided. This does not detract from your statutory rights. You will not be able to gain the benefit of this Warranty without making a claim.
APPROVED CLAIMS
17.10 If, following receipt of a claim under this Warranty, ANCAR or its agent determine that your claim in respect of a ANCAR product is valid, and:
(a) if the goods can be repaired and the failure to comply with the warranty is not a major failure or a failure of substantial character, ANCAR or its agent will either repair the ANCAR product or, if authorised by ANCAR, pay you for the cost of a repair of the ANCAR product, or replace the ANCAR product with the same or similar product or refund you the cost of a replacement, in each case depending upon what is reasonable in the circumstances and with regard to ANCAR’s statutory obligations and at no cost to you. Goods presented for repair may be replaced by refurbished goods of the same type with equal or greater functionality rather than being repaired. Refurbished parts may be used to repair the goods; or
(b) if the failure to comply with the warranty is a major failure or a failure of substantial character, you may reject the goods or require ANCAR to pay you compensation for any reduction in the value of the goods below the price paid or payable by you for the goods.
17.11 Although the standard ANCAR warranty period is 12 months from the date of purchase, each claim is assessed on its own merits, and you may have statutory rights outside of the Warranty Period.
NON-APPROVED CLAIMS
17.12 If, following receipt of a claim under this Warranty, ANCAR or its agent determine that your claim in respect of a ANCAR product is invalid, ANCAR may charge you for any labour, parts or transport costs incurred by ANCAR or its agent in assessing your claim.
WARRANTY TRANSFERABILITY
17.13 This Warranty is transferable to a subsequent owner of the ANCAR product. The effective transfer of this Warranty does not otherwise alter the terms of this Warranty in any way.
WARRANTY EXCLUSIONS
17.14 Any and all warranties or conditions which are not guaranteed under the Australian Competition and Consumer Act or, the Australian Competition and Consumer Regulations 2010 and which are not expressly included in this Warranty as additional warranties or conditions are excluded.
17.15 Unless stated otherwise, this Warranty does not extend to loss caused by normal wear and tear, fire, water (liquid spillage or ingression), theft, vermin or insect infestation. This Warranty does not cover damage caused by misuse of the ANCAR product, incorrect operation or not following the User Guide, improper installation, adverse external conditions such as power surges and dips, acts of God, damage caused by vermin, or any other act or circumstance beyond ANCAR’s control, exposure to excessive heat, moisture or dampness outside usual operating conditions, exposure to abnormally corrosive conditions, use of non-authorised/non-standard, defective or incompatible parts, password setting/ resetting and computer virus, repair and/or modification or other work carried out on the ANCAR product other than by authorised personnel.
17.16 This Warranty does not cover service costs in replacing and maintaining consumable parts which have ceased working through normal wear and tear.
18. DEFINITIONS
18.1 In this Agreement, unless the context requires otherwise:
• Agreement means the Agreement constituted by these terms and conditions, and any other written terms and conditions relating to the supply relationship between the parties which are agreed by both parties.
• ANCAR means VASCAR Auto Pty Ltd (ACN 673 798 671) of Toorak Corporate North Place, Suite 304, 306/19 Milton Parade, Malvern VIC 3144, being a company incorporated under the provisions of the Corporations Act 2001 (Cth).
• Business Day means a day that is not a Saturday, Sunday, or public holiday in Melbourne, in the State of Victoria, Australia.
• CCA means the Competition and Consumer Act 2010 (Cth).
• you shall mean the customer (or any person acting on their behalf or with their authority) purchasing the Device and/or engaging ANCAR to provide the Services.
• Device means the ANCAR device, as updated from time to time.
• Goods shall mean goods supplied by ANCAR, or an authorised distributor of ANCAR, to you (and where the context so permits shall include any supply of Services) and are as described on the invoices, quotation, work authorisation or any other forms as provided by ANCAR or an authorised distributor of ANCAR, to you.
• Intellectual Property Rights means all present and future rights owned by ANCAR or licenced to ANCAR, including without limitation any copyright, trade marks, designs, patents, and other intellectual property rights.
• Privacy Laws means each of the Privacy Act 1988 (Cth), the Surveillance Devices Act 1999 (Vic), Surveillance Devices Act 2007 (NSW), Surveillance Devices Act 2016 (SA), Surveillance Devices Act 1998 (WA) and any equivalent legislation, law, regulation, code or similar which places the same or similar restrictions on any person in any jurisdiction in Australia or which amends or replaces these laws.
• Services means the provision of Software that works with the Device allowing the Customer to immobilise their vehicle.
• Software means any and all software comprising part of the Device and/or the Services, subsisting within the Device and/or the Services or otherwise being made available by ANCAR to you in connection with the Device and/or the Services.
• Software Updates means any software that modifies, amends, updates or otherwise alters the Software.
• User Guide means the user guide made available by ANCAR from time to time.
• Website means https://www.ancar.com.au/.
19. INTERPRETATION
19.1 In this Agreement:
(a) headings are for reference only and do not affect the meaning of this Agreement;
(b) the singular includes the plural and vice-versa;
(c) if a word or phrase is defined, its other grammatical forms have a corresponding meaning;
(d) an Agreement, representation or warranty:
(i) in favour of two (2) or more persons is for the benefit of them jointly and severally; and
(ii) on the part of two (2) or more persons binds them jointly and severally;
(e) a reference to:
(ii) a document includes any variation or replacement of it and all its schedules, annexures and exhibits the document;
(iii) a law includes regulations and other instruments under it and amendments or replacements of any of them;
(iv) a thing includes the whole and each part of it;
(v) a group of persons includes all of them collectively, any two (2) or more of them collectively, and each of them individually;
(vi) a reference to “$” is a reference to Australian currency;
(vii) all reference to dates and times are to Melbourne Victoria, Australia dates and time; and
(viii) “including” when introducing a list of items does not limit the meaning of the words to which the list relates to those items or to items of a similar kind.