Service Agreement

This service agreement includes our “terms of use” and “terms and conditions” policies.

Parties

Traqly Limited, a company incorporated in New Zealand with company number 5621647, (“Supplier”); and
You, the person or entity that has agreed to these terms (“Client”).

Sections of the Agreement

The Supplier agrees to provide, and the Client agrees to buy, Services on the terms of the Agreement. The agreement comprises:

Section A (Agreement and Key Details); and
Section B (General Terms).

Section A: Agreement and Key Details

Acceptance of Terms

By accessing and using the Traqly software (“Software”) provided by Traqly Limited (“Supplier”), you agree to abide by these Terms of Use. If you do not agree with these terms, you should discontinue use of the Software immediately.

Start date of the Agreement

Our agreement with you begins from the day you complete the sign-up to the Software service using your email address, and you are provided with email confirmation from us to that effect.

End date of the Agreement

This agreement has no set end date, and will only terminate through notice being given by either party, as per Section C, Part 8 of this Terms of Use Agreement. By actively using the Traqly online platform, or using any other aspects of the Software service, the Client continues to agree to this Services Agreement.

Services

The Software provides fleet and asset management services for businesses.

Pricing

The Software is provided on a subscription basis. The Client will be charged a monthly fee for each vehicle or asset that is managed through the Software. The fee will be charged on the first day of each month, and will be based on the number of vehicles or assets that were managed through the Software in the previous month. Any vehicle or asset that is added part way through a month will be charged at the full rate for that month. No pro rata discounts will be applied. The fee will be charged to the Client’s credit card, which will be provided to the Supplier during the sign-up process or through the Client billing settings. Invoicing is available on a case-by-case basis, and will be subject to a 10% surcharge.

Countries of Service

The Software is only intended for use in New Zealand, Australia and the United Kingdom. While it can be accessed by users in other countries, the Supplier does not provide any guarantee that it will work as intended.

Section B: General Terms

1. INTERPRETATION

1.1 Definitions:

In the Agreement, the following terms have the stated meaning:

Agreement: Section A (Agreement and Key Details, including the cover page), Section B (Authority to Act) and Section C (terms and conditions).

Confidential Information: the terms and conditions of the Agreement and any information that is not public knowledge and which is obtained from the other party in the course of, or in connection with, the Agreement. Intellectual Property owned by the Supplier is the Supplier’s Confidential Information.

Fees: the fees set out in the Pricing section of ‘Key Details’.

Force Majeure: an event that is beyond the reasonable control of a party, excluding an event to the extent that it could have been avoided by a party taking reasonable steps or reasonable care.

Intellectual Property Rights: includes copyright and all rights conferred under statute, common law or equity relating to inventions (including patents), registered or unregistered trademarks and designs, circuit layouts, data and databases, confidential information, know-how, and all other rights resulting from intellectual activity. Intellectual Property has a consistent meaning.

Key Details: the agreement specific details set out in Section A of the Agreement.

Services: the services set out in the Key Details.

1.2 Interpretation:

In the Agreement:

clause and other headings are for ease of reference only and do not affect the interpretation of the Agreement;
words importing the singular include the plural and vice versa; and
a reference to:
1. a party to this Agreement includes that party’s permitted assigns; and
2. including and similar words do not imply any limit.

2. OBLIGATIONS

2.1 General:

In addition to the other obligations of the Agreement:

the Supplier must provide the Services:
1. in accordance with the Agreement, including any requirement set out in the Key Details, and all applicable laws;
2. exercising reasonable care, skill and diligence; and
3. using suitably skilled, experienced and qualified staff; and
the Client must promptly make decisions (including approvals) and provide the Supplier with all information reasonably required to provide the Services.

3. WARRANTIES

3.1 General:

The Supplier warrants that the Services will, at the time they are provided, materially conform to any requirement set out in the Key Details.

3.2 Breach of warranty:

If the Services do not meet a warranty, at the Client’s request and at the Supplier’s cost, the Supplier must re-perform the Services so that they meet or satisfy that warranty. The Supplier’s obligation under this clause 3.2 is the Client’s sole remedy against the Supplier for breach of warranty.

3.3 Exclusions:

To the maximum extent permitted by law, the Supplier’s warranties are limited to those stated in clause 3.1. Any implied condition or warranty (including any warranty under the New Zealand Sale of Goods Act 1908) is excluded.
The Client agrees and represents that it is acquiring the Services for the purposes of a business and that the New Zealand Consumer Guarantees Act 1993 does not apply to the supply of the Services or the Agreement.

4. INTELLECTUAL PROPERTY

4.1 Retained Intellectual Property:

The following Intellectual Property (including any modification, enhancement or derivative work of that Intellectual Property) remains the property of the current owner, regardless of its use in the Services:

Intellectual Property that existed prior to the date of the Agreement; and
Intellectual Property that was developed independently of the Agreement.

4.2 Know how:

To the extent not owned by the Supplier, the Client grants the Supplier a royalty-free, transferable, irrevocable and perpetual licence to use for the Supplier’s own business purposes any know how, techniques, ideas, methodologies, and similar Intellectual Property developed by the Supplier in the provision of the Services to the Client.

4.3 Ownership

All content, trademarks, service marks, trade names, logos, and icons are proprietary to Traqly Limited. Nothing contained in the Software should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any trademark displayed in the Software without the written permission of Traqly Limited or such third party that may own the trademarks displayed in the Software. Your use of the trademarks displayed in the Software, or any other content in the Software, except as provided herein, is strictly prohibited.

4.4 Ownership going forward:

Subject to clauses 4.1 and 4.2, all new Intellectual Property created or developed by the Supplier in providing the Services, is owned by the Supplier.

5. FEES

5.1 Fees:

The Client must pay the Fees to the Supplier for providing the Services. Fees will be deducted automatically by the Supplier from the credit card supplied by the Client. If the Client’s credit card is declined, the Supplier will notify the Client and the Client must provide an alternative credit card within 5 working days. If the Client has chosen to pay by invoice, the Supplier will send the Client an invoice for the Fees. The Client must pay the invoice within 14 working days of the date of the invoice or by the first of the month for which the invoice relates to, whichever is sooner.

5.2 Promotional Credit:

Periodically, Traqly may offer promotional credit to existing and prospective customers as a form of incentive or rewards. Credit is only valid for active, transacting Traqly customers. Any credit earned by the Client via referral of Traqly to other parties will be valid only after that party has received their first payment through Traqly. Once active, Credits will be automatically used in lieu of payment of Traqly fees.

5.3 Refunds:

The Supplier does not provide refunds.

6. CONFIDENTIALITY

6.1 Security:

Each party agrees that, unless it has the prior written consent of the other party, it will:

keep confidential at all times the Confidential Information of the other party; and
ensure that any personnel or professional advisor to whom a party discloses other party’s Confidential Information are aware of, and comply with, the provisions of this clause 6.1.
not permit third-party access to the Client’s Traqly login details and Confidential Information

6.2 Third-party access:

Sharing personal log-in details to the Client’s Traqly profile contravenes the Supplier’s Terms and Conditions. The Supplier cannot be held liable for providing Confidential Information to a third party in the event of third party access being granted by the Client.

6.3 Disclosure required:

The obligations of confidentiality in clause 6.1 do not apply to any disclosure:

for the purpose of performing the Agreement or exercising a party’s rights under the Agreement;
required by law (including under the rules of any stock exchange);
of Confidential Information which:
1. is publicly available through no fault of the recipient of the Confidential Information or its personnel; or
2. was rightfully received from a third party without restriction or without breach of the Agreement; or
by the Supplier if required as part of a bonafide sale of its business (assets or shares, whether in whole or in part) to a third party, provided that the Supplier enters into a confidentiality agreement with the third party on terms no less restrictive than this clause 6.

6.4 Return of information:

Except to the extent that a party has ongoing rights to use Confidential Information, a party must, at the request of the other party following the expiry or termination of the Agreement, promptly return to the other party or destroy all Confidential Information of the other party in the recipient party’s possession or control.

7. LIABILITY

7.1 Maximum liability:

The maximum aggregate liability of the Supplier under or in connection with the Agreement, whether in contract, tort (including negligence), breach of statutory duty or otherwise, must not exceed the Fees paid and/or payable by the Client under the Agreement for Services properly provided in accordance with the Agreement.

7.2 Unrecoverable loss:

Except for the Client’s liability to pay the Fees, neither party is liable to the other for any loss of profit, data, savings, business, revenue, and/or goodwill, or other indirect, consequential or incidental loss or damage arising under or in connection with the Agreement.

7.3 Unlimited liability:

Clauses 7.1 and 7.2 do not apply to limit the Supplier’s liability for:
1. personal injury or death;
2. fraud or wilful misconduct; or
3. breach of clause 6.
Clause 7.2 does not apply to limit the Client’s liability for those matters stated in clause 7.3a i - iii.

7.4 No liability for the other’s failure:

Neither party will be responsible, liable, or held to be in breach of the Agreement for any failure to perform its obligations under the Agreement or otherwise, to the extent that such failure is directly attributable to the other party failing to comply with its obligations under the Agreement, or to the negligence or misconduct of the other party or its personnel.

7.5 Mitigation:

Each party must take reasonable steps to mitigate any loss or damage, cost or expense it may suffer or incur arising out of anything done or not done by the other party under or in connection with the Agreement.

8. TERM AND TERMINATION

8.1 Duration:

Unless terminated under this clause 8, the Agreement starts and ends on the dates set out in the Key Details.

8.2 No fault termination:

Either party may terminate the Agreement on no less than one month’s prior written notice to the other party.

8.3 Other termination rights:

Either party may, by notice to the other party, immediately terminate the Agreement if the other party:

breaches any material provision of the Agreement and the breach is not:
1. remedied within 10 days of the receipt of the notice from the first party requiring it to remedy the breach; or
2. capable of being remedied;
has an administrator, receiver, liquidator, statutory manager, mortgagee’s or chargee’s agent appointed, becomes subject to any form of external administration, or ceases to continue business for any reason; or
is unable to perform a material obligation under the Agreement for 30 days or more due to Force Majeure.

8.4 Consequences of expiry or termination:

Expiry or termination of the Agreement does not affect each party’s rights and obligations accrued before the termination or expiry date.
The Client must pay for Services provided before the expiry or termination date.

8.5 Obligations continuing:

Clauses which, by their nature are intended to survive expiry or termination, including clauses 6, 7 and 8, continue in force.

8.6 Forced Termination:

The Supplier reserves the right to terminate the Client’s access to the Supplier’s services with immediate effect, including (but not limited to) the following circumstances:

The Client is in breach of the Supplier’s Privacy Policy;
The Client is in breach of the Terms of Use policy;
The Client is not responding to communications from the Supplier for failure to pay their outstanding account and/or invoices;

9. DISPUTES

9.1 Good faith negotiations:

Before taking any Court action, a party must use their best efforts to resolve any dispute under, or in connection with, the Agreement through good faith negotiations.

9.2 Obligations continue:

Each party must, to the extent possible, continue to perform its obligations under the Agreement even if there is a dispute.

9.3 Right to seek relief:

This clause 9 does not affect either party’s right to seek urgent interlocutory and/or injunctive relief.

9.4 Notification of dispute

The Client must notify the Supplier of the dispute in writing by email to [email protected] or registered mail.

10. GENERAL PROVISIONS

10.1 Force Majeure:

Neither party is liable to the other for any failure to perform its obligations under the Agreement to the extent caused by Force Majeure, provided that the affected party:

immediately notifies the other party and provides full information about the Force Majeure;
uses best endeavours to overcome the Force Majeure; and
continues to perform its obligations as far as practicable.

10.2 Waiver:

To waive a right under the Agreement, that waiver must be in writing and signed by the waiving party.

10.3 Notices:

A notice given by a party under the Agreement must be delivered via email to an email address notified by the other party for this purpose. If the notice is given under clause 8, a copy of that email must be immediately delivered (by hand or courier) to the Chief Executive of the other party.

10.4 Severability:

Any illegality, unenforceability or invalidity of a provision of the Agreement does not affect the legality, enforceability or validity of the remaining provisions of the Agreement.

10.5 Variation:

Any variation to the Agreement must be in writing and signed by both parties.

10.6 Entire Agreement:

The Agreement sets out everything agreed by the parties relating to the Services and supersedes and cancels anything discussed, exchanged or agreed prior to the Agreement’s start. The parties have not relied on any representation, warranty or agreement relating to the subject matter of this Agreement that is not expressly set out in this Agreement, and no such representation, warranty or agreement has any effect from the Agreement’s start. Without limiting the previous sentence, the parties agree to contract out of sections 9, 12A, and13 of the Fair Trading Act 1986.

10.7 Subcontracting and assignment:

Neither party may assign, subcontract or transfer any right or obligation under the Agreement without the prior written approval of the other (not to be unreasonably withheld). The first party remains liable for its obligations under the Agreement despite any approved assignment, subcontracting, or transfer.

10.8 Law:

The Agreement is governed by, and must be interpreted in accordance with, the laws of New Zealand. Each party submits to the non-exclusive jurisdiction of the Courts of New Zealand in relation to any dispute connected with the Agreement.

10.9 Counterparts:

The Agreement may be signed in counterparts, each of which constitutes an original and all of which constitute the same agreement. A party may enter the Agreement by signing and sending (including by facsimile or email) a counterpart copy to the other party.