FLEET ADMINISTRATION AGREEMENT

 

BACKGROUND

 

1. Fleetcheck provides a Service whereby the Customer may manage their fleet on the Website or the App.

 

1. The Customer wishes to use the Service.

 

1. The parties wish to enter into this Agreement to record the basis on which the relationship between them will be governed.

 

THE PARTIES AGREE

 

1. Definitions and Interpretation

1.1        In this Agreement, unless the context otherwise requires:

1.1.1     Agreement means this Agreement as it may be amended from time to time;

1.1.2     App means the software program developed by Fleetcheck for download by the Customer on a portable smart device for use as part of the Services;

1.1.3     Commencement Date means the date that this Agreement is signed by both parties, or (if both documents are not finalised on the same date) the date on which the Customer provides Fleetcheck with a completed Direct Debit Authority, whichever is the latter;

1.1.4     Customer means the purchaser of the Services named above;

1.1.5     Data means all information:

(a)    inputted into the Website and/or App by the Customer for the purpose of using the Services; and

(b)    all information owned by the Customer which it provides it to Fleetcheck; and

(c)    information owned by the Customer which it consents to third parties giving to Fleetcheck;

1.1.6     Direct Debit Authority means the authority given by the Customer to authorise the Company to debit funds from the Customer’s nominated bank account to fulfil the payment under this Agreement;

1.1.7     Fleetcheck means Fleetcheck Limited and includes its successors or assigns and all of its subsidiaries, whether wholly or partly owned;

1.1.8     GST means goods and services tax payable under the Goods and Services Tax Act 1985;

1.1.9     Intellectual Property means all trade marks, copyright, trade secrets, know how and any other intellectual property rights;

1.1.10   Prices means the prices for the Services advised to the Customer in writing prior to the Customer’s entry into this Agreement, as may be amended by Fleetcheck by notice in writing from time to time;

1.1.11   Privacy Policy means the privacy policy which sets out Fleetcheck’s privacy obligations pursuant to the Privacy Act 1993 available on the Website;

1.1.12   Related Party has the meaning given to it in section 2(3) of the Companies Act 1993;

1.1.13   Services means the fleet management system owned and operated by Fleetcheck for use by the Customer in the administration of its fleet;

1.1.14   Term means the period commencing on the Commencement Date and terminating on the date specified in the Termination Notice;

1.1.15   Termination Notice means a notice given in accordance with clause 11;

1.1.16   Website means www.fleetcheck.nz or any other URL domain which operates the Services and is owned by Fleetcheck; and

1.1.17   Working Day means a day other than a Saturday, Sunday or a Public Holiday on which registered banks are open for general banking business in Christchurch.

1. Commencement and Agreement

2.1        This Agreement commences on the Commencement Date and continues for the Term.

2.2        Fleetcheck will provide the Services and the Customer will accept the Services based on the terms set out in this Agreement.

1. Provision of Services

3.1        Fleetcheck, prior to making the Services accessible by the Customer, may:

3.1.1     perform a credit check on the Customer, its directors, agents or Related Parties and the Customer authorises Fleetcheck to perform the credit checks. The Customer warrants that the information it supplies to Fleetcheck will be complete and accurate for the purpose of any credit check; and/or

3.1.2     request that a guarantee for the Services is entered into by the Customer, its directors or Related Company.

3.2        Subject to clause 3.1, the Services will be accessible by the Customer from the Commencement Date and Fleetcheck grants the Customer a non-exclusive, non-transferable right to use the Services via the Website and/or the App in accordance with this Agreement and the Privacy Policy.

1. Customer Obligations

4.1        As a term of this Agreement, the Customer will:

4.1.1        use and access the Website and Services for their intended purpose and in accordance with this Agreement;

4.1.2        comply with all reasonable instruction of Fleetcheck when using the Services on either the Website or the App;

4.1.3        not use the Services in a way which may impact the functionality of the Services, Website or App;

4.1.4        not use the Services in any manner which could be considered illegal or offensive;

4.1.5        not attempt to modify, tamper, amend, adapt, make derivative works, copy, imitate, interfere or reverse engineer the App or Website;

4.1.6        keep safe and secure all passwords and associated details relevant to the App or Website; and

4.1.7        not use the Services otherwise in accordance with this Agreement.

1. Price and Payment

5.1        All Services supplied by Fleetcheck are quoted in New Zealand currency and exclude GST. The Customer acknowledges that all amounts payable will be in addition to GST.

5.2        Fleetcheck reserves the right to correct any typographical or clerical errors contained in the Prices.

5.3        Payment of the Services will be made by direct debit from the Customer’s nominated bank account as per the Direct Debit Authority on the 20th of the month following receipt of an invoice by Fleetcheck to the Customer.

5.4        Fleetcheck reserves the right to require the Customer to pay for the Services (either in full or in part) in advance.

5.5        Time for payment is of the essence and, without prejudice to any other rights of the Company, if the Customer fails to pay any sum payable pursuant to this Agreement when due:

5.5.1        the Company may treat the Agreement as being  repudiated by the Customer or may until payment in full is made, suspend the Services;

5.5.2        the Customer will (if required by the Company) pay interest to the Company at the default interest rate of eight percent (8%) above the current base lending rate set from time to time by the Company’s bankers in New Zealand.  Interest shall be payable daily until payment is received; and

5.5.3        the Customer will be liable for all expenses and costs (including legal costs and debt collection costs) in relation to the Company enforcing or attempting to enforce this Agreement.

5.6        The Customer is not entitled to make any deduction from the price of the Services in respect of any set-off or counterclaim or to withhold any payment without the prior written approval of Fleetcheck.

1. Confidentiality of Data

6.1        All Data received by Fleetcheck from the Customer shall be used solely for the supply of Services under this Agreement.

6.2        Fleetcheck will keep all Data safe and secure and to the maximum extent possible, free from unauthorised use and disclosure.

6.3        Fleetcheck will only disclose or use the Data where permitted by this Agreement, with the consent of the Customer or as required by law.

1. Intellectual Property

7.1        The Customer acknowledges that all Intellectual Property in the Services, Website and App is owned by Fleetcheck and the Customer will not reproduce, adapt, amend, reverse engineer, make derivative works from or copy any Intellectual Property or Data owned by the Company.

7.2        The Customer’s right to use the Intellectual Property is limited to a non-transferrable, non-exclusive licence to use the Services in accordance with the terms of this Agreement for the duration of the Term.

1. Warranties

To the maximum extent permitted by law, Fleetcheck expressly exclude all warranties, express or implied, including (but not limited to) implied warranties of satisfactory quality, fitness for a particular purpose, non-infringement, compatibility, security, timeliness, suitability, and specifications of the Services.

1. Indemnity and Limited Liability

9.1        To the fullest extent permitted by law, the Customer indemnifies Fleetcheck against all costs, claims, demands, expenses and liabilities of whatsoever nature, including without prejudice to the generality of the foregoing damage to property and consequential loss (including loss of profits or intellectual property), which may be made against Fleetcheck or which Fleetcheck may sustain, pay or incur as a result of or in connection with any breach of this Agreement by the Customer.

9.2        Without limiting clause 9.1, the Customer acknowledges that while the Customer can customise the Services for its specific use (for example, the Customer can add check boxes to the check sheets made available to the Customer as part of the Services), Fleetcheck shall not be liable for any loss or damage relating to or connected with any feature of the Services that has been customised by the Customer.

9.3        In the event Fleetcheck is held to be liable to the Customer, the liability of Fleetcheck shall be limited to the total Price payable under the Agreement entered into for the Services, or the cost of replacement of the Services, whichever is less.

9.4        Fleetcheck shall not be liable for any loss or damage caused by its failure to supply the Services due to anything outside the reasonable control of Fleetcheck, including but not limited to acts or omissions of the Customer, shortage of labour, software malfunctions, technical issues, security and fraud issues and any other matters of any kind.

1. Default

10.1      In the event that the Customer:

10.1.1   breaches any terms and conditions of this Agreement; or

10.1.2   becomes insolvent or has a receiver appointed; or

10.1.3   ceases or threatens to cease carrying on business; then

10.1.4   Fleetcheck will be entitled to cancel any Agreement it has with the Customer; and

10.1.5   all amounts outstanding under any Agreement, whether or not due for payment, immediately become due and payable.

1. Termination

11.1      Either party may terminate the Agreement by giving 30 Working Days written notice to the other (Termination Notice).

11.2      In the event the Customer breaches any of the terms of this Agreement, Fleetcheck may immediately in writing, either suspend supply of the Services or terminate the Agreement it has with the Customer at which point all money due and owing to Fleetcheck by the Customer will be payable.

11.3      Suspension or termination will not prejudice or affect the rights of Fleetcheck to make any claims against the Customer.

1. Consumer Guarantees Act 1993

The parties agree that the supply of Services under this Agreement is a supply for business purposes and that the provisions of the Consumer Guarantees Act 1993 do not apply.

1. Disputes

13.1      Negotiation:  If a dispute arises (Dispute) between the parties in relation to the supply of Services then the parties will endeavour to settle the Dispute by way of good faith negotiation.  If the parties are unable to resolve the dispute within five Working Days, the Dispute shall be resolved in accordance with clause 13.2.

13.2      Mediation: In the event that the Dispute is not resolved by negotiation, the matter may be referred to mediation by any party by written notice. In the event that the matter is referred to mediation, the parties shall agree within five Working Days of the matter being referred to mediation on a mediator.  In the event the Dispute is not resolved by a completed mediation within a further 20 Working Days, any party may refer the matter to arbitration.

13.3      Arbitration:  If a Dispute is not settled under clauses 13.1 or 13.2, then the Dispute shall be submitted to, and settled by, arbitration by a sole arbitrator in accordance with the provisions of the Arbitration Act 1996. The arbitrator shall be appointed by the parties or failing agreement within five Working Days after the request to appoint an arbitrator by one party to the other, the arbitrator shall be appointed by the president for the time being of the New Zealand Law Society.

1. Miscellaneous

14.1      If any part of this Agreement is held to be unenforceable, the part concerned will be deleted or modified to the minimum possible extent necessary the remainder of the Agreement enforceable will remain in force.

14.2      No delay or failure by Fleetcheck to exercise its rights under the Agreement operates as a waiver of those rights.

14.3      The Customer may not assign or transfer any of its rights or obligations under or in connection with any Agreement to any third party without the prior written consent of Fleetcheck.

14.4      Fleetcheck reserves the right to sub-licence the Agreement the performance of the Agreement or any part of the Agreement to any other party or person.

14.5      Variations to this Agreement must be agreed in writing between the parties.

14.6      The Customer agrees that Fleetcheck may obtain information about the Customer from any source including credit assessment and debt collecting and the Customer consents to any person providing Fleetcheck with such information.

14.7      The Customer will pay all costs and expenses (including legal fees) incurred by Fleetcheck in exercising any of its rights under any this Agreement.

14.8      Any notice given by one party to the other will be deemed to have been delivered 48 hours after posting to the recipient’s registered office or last known address and immediately, if forwarded by facsimile or email.

14.9      This Agreement will be governed by and construed in accordance with the laws of New Zealand and the parties irrevocably agree to submit to the exclusive jurisdiction of the New Zealand Courts.

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