HOURFLEET TERMS AND CONDITIONS OF USE - VERSION 1.1 DATED 12 JUNE 2018
ACCEPTANCE OF TERMS - IMPORTANT
BY CREATING AN ACCOUNT AND REGISTERING FOR A PRICING PLAN WITH HOURFLEET AND/OR BY USING HOURFLEET’S PLATFORM YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS.
These terms and conditions (the “Terms”) are a legal agreement between MINDKIN LIMITED, a New Zealand incorporated company that owns and operates the Hourfleet platform (“Us”, “We” or “Our”) and each person or entity who creates an account and/or registers for a pricing plan with Hourfleet (“You” or “Your”).“You” and “Your” also refers to Your employees and personnel, and You are responsible for ensuring such employees and personnel comply with these Terms.
Your use of the Hourfleet service, website, and mobile application (collectively, the "Service") on one of a trial or regular basis are subject to these Terms and Your use of the Service constitutes irrevocable acceptance of these Terms. If You do not agree to these Terms You must not use the Service. We reserve the right to amend the Terms from time to time without notifying You or obtaining Your acceptance.
The Service includes, and is limited to, ‘Hourfleet’, a SaaS hosted application, a native application (“App”), optionally an in-car hardware device (“Device”), and one or more third-party integrations (“Integration”).
Hourfleet provides a sub-set of the capabilities that allow Your business to offer car sharing services to Your customers (“End User”). Hourfleet enables to You capture and manage End Users, car details, bookings and to conduct other administrative functions. The Service may contain information, data, text, photographs, videos, audio clips, written comments and ratings created by You or End Users (“Your Content”).
While the in-car Device is generally suited to vehicles which operate by way of proximity keys and OEM push-to-start buttons, We do not warrant that the Device is suitable for all cars, or for any car. You may supply us with a working, OEM proximity key which We will use to customise a Device for You. You acknowledge that this proximity key will no longer function as a manual, conventional car key. You agree to have any Device installed and, as required, de-installed by a suitably qualified auto-electrician at Your cost. We will maintain minimally suitable, publicly-accessible documentation on Our website to facilitate understanding of Devices, their customization and installation processes.
We will make the App, including binary files and essential configuration data available for You to download to Your systems. Placement of this App in to app stores, and decisions about when to upload App updates are Your responsibility. You will be responsible for maintaining direct developer relationships with the app store providers.
Operation of the Service also requires You to maintain an account with Stripe.com (an Integration) for the purpose allowing Us to initiate credit card charges to End Users on Your behalf, and You agree to:
Send Us the Public API Key to Your Stripe account’s live profile as guided by our online documentation, and;
Create and send to us Us a Restricted API Key to Your Stripe account’s live profile as guided by our online documentation. You note and agree that the privileges We require of You may need to change over time as Hourfleet improves the Service, and You agree to promptly supply us with updated Restricted API Key if and when We request this from You.
We will provide the Service in accordance with these Terms. We may at its sole discretion modify the features of the Service from time to time without prior notice. Any new features that augment or enhance the current Service shall be subject to these Terms.
Our supply of the Service to You is non-exclusive. Nothing in these Terms prevents Us from the supplying the Service to another party.
We are responsible for procuring all software, IT solutions, systems and networks (including software and hardware), including any third party solutions, systems and networks, reasonably required to provide the Service.
Through the use of web services and APIs, the Service interoperates with a range of third party service features. We do not make any warranty or representation on the availability of those features. If a third party feature provider ceases to provide that feature or ceases to make that feature available on reasonable terms, we may cease to make available that feature to You and You will not be entitled to any refund, discount or other compensation.
We will use reasonable efforts to ensure the Service is available on a 24/7 basis. However, it is possible that on occasion the Service may be unavailable to permit maintenance or other development activity to take place, or in the event of forces beyond Our control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God (“Force Majeure”). We will use all reasonable efforts to provide warning to you prior to such an outage, and minimise any downtime or scheduled outages.
Our obligations in this section are subject to the following conditions. We will not be responsible for:
any use of the Service contrary to these Terms or Our instructions, or
any modification or alteration of the Service by You or any other party.
any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, where this is not within Our reasonable control.
You must use the Service in accordance with these Terms.
You must not, and must ensure that End Users do not, engage in any of the following prohibited activities while using the Service:
copying, distributing, or disclosing any part of the Service in any medium, including without limitation by any automated or non-automated "scraping";
reverse engineering, reverse compiling or otherwise reducing to human readable form any software associated with the Service;
using any automated system, including without limitation "robots, "spiders, "offline readers", etc., to access the Service in a manner that sends more request messages to the Hourfleet servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser except that We grant the operators of public search engines revocable permission to use spiders to copy materials from Hourfleet.com for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials;
transmitting spam, unsolicited email, or any electronic messages which do not comply with data, privacy, or similar laws and regulations in the countries in which You or End Users use the Service;
attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Service;
taking any action that imposes, or may impose an unreasonable or disproportionately large load on Our infrastructure;
uploading invalid data, viruses, worms, or other software agents through the Service, and otherwise interfering with the proper working of the Service;
accessing any content on the Service through any technology or means other than those provided or authorized by the Service, including collecting or harvesting any personally identifiable information from the Service;
using the Service for any commercial solicitation purposes;
impersonating another person or otherwise misrepresenting Your affiliation with a person or entity, conducting fraud, hiding or attempting to hide Your identity; or
copying, reproducing, altering, modifying, or publicly displaying any information displayed on the Service, to the extent that such action(s) would constitute copyright infringement or otherwise violate the intellectual property rights of Us or any other third party, except with the prior written consent.
You are responsible for procuring all licences, authorisations and consents required for You to use the Service, including to use, store and input Data into, and process and distribute Data through, the Service.
You are solely responsible for ensuring that these Terms are in compliance with all laws, rules and regulations applicable to You and End Users, and the right to access the Service is revoked where these Terms or use of the Service is prohibited or to the extent offering, sale or provision of the Service conflicts with any applicable law, rule or regulation.
You are responsible for ensuring that Your Content is accurate, not objectionable or misleading, and does not infringe on any third party intellectual property rights. We do not have any obligation to monitor Your Content and accept no responsibility whatsoever for Your Content.
We reserve the right to access, read, preserve, and disclose any information from Your Content that We reasonably believes is necessary to:
satisfy any applicable law, regulation, legal process or governmental request (provided We notify You of such a request in advance);
enforce these Terms of Service, including investigation of potential violations hereof;
detect, prevent, or otherwise address fraud, security or technical issues;
respond to user support requests;
protect the rights, property or safety of Us or the public.
ACCESS TO AND USE OF SERVICE BY END USERS
No person other than personnel authorised by You to access and use the Service on Your behalf and End Users may access or use the Service.
You must use reasonable efforts to ensure that all End Users are of an age to legally use the Service in the jurisdiction in which You are operating the Service. We will not be responsible for any use of the Services by an End User contrary to such laws.
We acknowledge that these Terms are intended to confer benefits on and enforceable by each End User. You are entitled to exercise all rights, powers, authorities, discretions or remedies conferred on You (or any other End User) by these Terms or any applicable law as if You were the sole beneficiary of the promises made and the obligations owed by Us under these Terms.
To the extent permitted by law, where an End User may, or is required to, provide any information, give a notification, make a request or take any action, You may provide that information, give the notification, make the request or take that action.
You must use reasonable endeavours to ensure each End User is aware of and complies with these Terms (to the extent applicable) while using the Services. Any breach of such Terms by an End User is deemed to be a breach of the Terms by You.
TITLE AND RISK
If You choose to purchase Devices, Risk in the Devices will pass from Us to You on delivery of the Devices to You. Title in the Devices will not pass to You until We have received payment in full for the Devices, and payment of all other sums that may be owing to Us from You.
INTELLECTUAL PROPERTY AND LICENSE TO USE SERVICE
Title to and all Intellectual Property Rights in the Service, and all trade names, trademarks and service marks associated or displayed with the Service, remain Our property. You must not dispute that ownership. Subject to these Terms, We grant You a non-exclusive, worldwide, non-sublicensable, non-transferrable licence to use the Service for the purpose of providing car sharing services to End Users in accordance with these Terms.
You retain title to, and all Intellectual Property Rights in, the Data. You grant Us a non-exclusive, worldwide, fully paid up, transferable, irrevocable licence to use, store, copy, modify, make available and communicate the Data for any purpose in connection with the exercise of its rights and performance of Our obligations in accordance with these Terms.
If You provide Us with ideas, comments or suggestions relating to the Service (’Feedback’), We own all Intellectual Property Rights in that Feedback, and anything created as a result of that Feedback (including new material, enhancements, modifications or derivative works). You will execute all documents We reasonably require in relation to Our ownership of such rights.
You acknowledge that the Service may link to third party websites or feeds that are connected or relevant to the Service. Any link from the Service does not imply any endorsement, approval or recommendation by Us, or any responsibility from Us, for those websites or feeds or their content or operators. To the maximum extent permitted by law, We exclude all responsibility or liability for those websites or feeds.
We may access data, content, and information (including personal information) owned, held, used or created by or on behalf of You or any End User that is stored using, or inputted into, the Service (“Data”), and create and use aggregated and anonymised Data, as necessary to exercise Our rights and perform Our obligations under these Terms.
The Service may include certain communications from Us, such as service announcements, administrative and other service-related messages, and these communications are considered part of the Service and neither You nor any End User will be able to opt out of receiving them.
You must obtain all necessary consents and approvals from End Users to enable You to transfer Data (including personal information) to Us, and to enable Us to collect, access, use, hold, process, and transfer Data (including personal information) and to send communications to End Users, in accordance with these Terms and any lawful instructions You reasonably give Us from time to time.
We will store and access Data (including any personal information) in and from secure servers in any territory where a Microsoft Azure hosting platform exists and in New Zealand from time to time. Data may also transit territories other than those where a Microsoft Azure hosting platform exists.
While We will take standard industry measures to back up all Data stored using the Service, You must keep a separate back-up copy of all Data You upload onto the Service.
You agree to comply with all applicable laws regarding the privacy of personal information and storage and transmission of Data in the country in which You reside.
PRICING AND BILLING
You may select one of Our available collections of pricing amounts, limits and conditions displayed on Our website or otherwise advised by Us (“Pricing Plans”). Upon selection of a Pricing Plan, You must provide current, complete and accurate billing information ("Billing Data").
Each Pricing Plan includes two components: a fixed subscription fee, charged monthly in advance, and a usage fee, determined by Your usage the previous month (together, “Fees”). You may also choose to purchase Devices from us. All Fees and Devices are priced and charged in US dollars.
Credit cards are the only payment mechanism We will accept for payment of Fees and Devices.
You agree that the credit card You provide as part of the Billing Data can be
Automatically and immediately billed in accordance with Your Pricing Plan, and any Fees billed in the month prior will be charged to Your credit card on or about Your monthly billing cycle date. Fees charged are non-refundable.
Immediately billed when You purchase Devices
You may cancel Your Pricing Plan at any time. If Your Pricing Plan is cancelled or these Terms are terminated for any reason, You agree We may charge Your credit card all amounts due and owing.
You will be liable for interest at a rate of 2% for annum for any overdue or unpaid Fees. If Your Fees remain overdue or unpaid for a period of one month following written notice from Us, We may disable Your access to the Service until the Fees are paid.
In the event We are unable to collect Fees owed to Us for Your Pricing Plan, We may take any other steps deemed necessary to collect such Fees from You. You agree that You will be responsible for all costs and expenses We incur in connection with collection of overdue Fees, including recovery fees, court costs and legal fees.
We may change or discontinue Pricing Plans from time to time. We will notify You if this occurs. You will be entitled to continue using a discontinued Pricing Plan for 90 days after notification, during which time You must while select a replacement Pricing Plan. Failure to select a replacement Pricing Plan within 90 days will constitute termination of these Terms.
These Terms start on the date You create an account to use the Service, and continue until terminated by Us or You in accordance with the Terms.
You may terminate these Terms at any time, by notice in writing to Us or by deleting Your account to use the Service. We may terminate the Terms at any time on 3 months’ prior notice to You. We may terminate the Terms with immediate effect if You breach these Terms by fraud or wilful misconduct.
Either party may, by notice to the other party, immediately terminate the Terms if the other:
breaches any material provision of the Terms and the breach is not:
remedied within 10 days of the receipt of a notice from the first party requiring it to remedy the breach; or
capable of being remedied;
becomes insolvent, liquidated or bankrupt, has an administrator, receiver, liquidator, statutory manager, mortgagee’s or chargee’s agent appointed, becomes subject to any form of insolvency action or external administration, or ceases to continue business for any reason; or
either party is unable to perform a material obligation under the Terms for more than one month as the result of a Force Majeure.
Termination of these Terms does not affect the rights and obligations that accrued before termination. On termination, You must pay all Fees incurred as at the date of termination, and as outlined above, We may charge Your credit card for these Fees.
Following termination of the Terms, at either Your or Our request, the requested party must promptly or destroy all confidential information of the requesting party in their possession or control except to the extent that:
a party has ongoing rights to use Confidential Information;
the Confidential Information is stored on electronic backup hard drives that are not readily accessible
The Confidential information is required for corporate governance and insurance purposes.
At any time prior to one month after the date of termination, You may request, in accordance with these Terms:
A copy of any Data stored using the Service in a common electronic format, provided that You pay Our reasonable costs incurred in providing that copy. We do not warrant that the format of the Data will be compatible with any software; and/or
Deletion of the Data stored using the Service, in which case We must use reasonable efforts to promptly delete that Data.
Parts of these Terms that, by their nature, are intended to survive termination shall continue in force following termination of the Terms
Without limiting any other right or remedy available to Us, following 2 days’ written notice to You, We may restrict or suspend Your or an End User’s access to the Service where, in Our reasonable opinion, You or the End User has materially breached these Terms, or has undermined, or attempted to undermine, the security or integrity of the Service, or used, or attempted to use, the Service for improper purposes or in a manner that materially reduces the operational performance of the Service.
In the event of Your suspension, neither You nor End Users, will be able to access the Service. In the event of an End User suspension, that End User will not be able to access the Service.
Following suspension, We may re-allow access to the Service when, in Our reasonable opinion, We are satisfied that You or the End User, as applicable, has rectified any breach of these Terms or other improper use of the Service. Alternatively, We may terminate these Terms in accordance with the above “Termination” section.
APPLE DEVICE AND APPLICATION TERMS
If You are accessing the Service via an application on a device provided by Apple, Inc. (“Apple”) or an application obtained through the Apple App Store (each an “Application”), You acknowledge and agree that the following shall apply:
These Terms are between You and Us only, not with Apple, and Apple is not responsible for the Service or the Application.
The Application is licensed to You on a limited, non-exclusive, non- transferrable basis, solely to be used by You and End Users in connection with the Service, subject to all the terms and conditions of these Terms as applicable;
You and each End User will only use the Application in connection with an Apple device that You or the End User owns or controls;
Apple has no obligation whatsoever to maintain or provide support services with respect to the Application; \
We, not Apple, are responsible for addressing, investigation, defending, and settling any claims You or any third party may have in relation to the Application, including any third party claim that the Application or Your possession and use of the Application infringes that third party’s intellectual property rights,
You represent and warrant that You are not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that You are not listed on any U.S. Government list of prohibited or restricted parties;
You will comply with any applicable third party terms of agreement which may affect or be affected by Your use of the Application
Apple and Apple’s subsidiaries are third party beneficiaries of these Terms of Service, and that upon Your acceptance of these Terms of Service, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against You as the third party beneficiary hereof.
Apple, the Apple logo, iPhone and iPad are trademarks of Apple Inc., registered in the U.S. and other countries. App Store is a service mark of Apple Inc. Google Play is a trademark of Google Inc.
If the Service, or parts thereof, are subject to export control laws, sanctions, or regulation in Your country of operation, You agree that You will not transfer, disclose, export, re-export, or divert any portion of the Service or any related technical information or materials, directly or indirectly, in violation of any applicable export law or regulation.
Each party must, unless it has the prior written consent of the other party, keep all non-public information relating to the other party’s business, technology, systems, services, software, designs, and products, whether disclosed orally, in writing, by visual inspection, or otherwise, (“Confidential Information”) confidential at all times, and must not disclose this Confidential Information to any third party (other than to its personnel on a need to know basis, provided that such personnel are aware of and comply with these Terms) or use the Confidential Information in a manner contrary to these Terms.
A party that discloses Confidential Information to its personnel will remain responsible for any breach of these Terms by its personnel, as if it were a breach by that party.
This obligation of confidentiality does not apply to any disclosure or use of Confidential Information:
required by law (including under the rules of any stock exchange);
which is publicly available through no fault of the recipient of the Confidential Information or its personnel;
which was rightfully received by a party to the Terms from a third party without restriction and without breach of these Terms or any obligation of confidentiality; or
by Us, if required as part of a bona fide sale of Our business (assets or shares, whether in whole or in part) to a third party, provided that We enter into a confidentiality agreement with the third party on terms no less restrictive than these Terms.
Unless We notify You to the contrary, We consent to You identifying Us as a supplier via any of Your online channels. Unless You notify Us to the contrary, You consent to allow Us to
Display Your publicly accessible details, including Your company name and logo, in Our online list of customers.
Identify You as a customer via Our online channels
You represent and warrant that all of the information You provide to Us to use the Service is correct and current, and You have all necessary right, power and authority to enter into and perform Your obligations under these Terms.
We warrant that Your use of the Service will not infringe the intellectual property rights of any third party, and that We have all rights (either by ownership or licence) to the intellectual property in the Service.
We make no representation concerning the quality of the Service and do not promise that the Service will meet Your requirements or be suitable for a particular purpose or be secure, free of viruses or other harmful code, uninterrupted or error free. We are not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and You acknowledge that the Service may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
You will indemnify Us, Our affiliates, officers, directors, employees, consultants, and agents, against any liability, claim, damages, cost, expense (including, but not limited to, legal fees as and when incurred) arising from any actual or alleged claim by a third party arising from Your use or End Users’ use of the Service, violation of these Terms, Data and use of Data, and infringement intellectual property rights.
We will indemnify You against any claim or proceeding brought against You by a third party alleging that Your or an End User’s use of the Service in accordance with these Terms constitutes an infringement of that third party’s intellectual property rights, provided that such a claim does not arise from or in connection with Your or an End User’s breach of, or use of the Service outside of, these Terms, or or in connection with Data (“IP Claim”). The indemnity is subject to You:
promptly notifying Us in writing of the IP Claim;
making no admission of liability and not otherwise prejudicing or settling the IP Claim, without the Our prior written consent; and
giving Us complete authority and information required for Us, at Our sole discretion, to conduct and/or settle the negotiations and litigation relating to the IP Claim on Your behalf, in which case the costs incurred or recovered are to Our account.
LIMITATION OF LIABILITY
The maximum aggregate liability of either party under or in connection with these Terms or relating to the Service, whether in contract, tort (including negligence), breach of statutory duty or otherwise, excluding any claim or loss relating to a breach of the Confidential Information or Intellectual Property Rights provisions of these Terms, will be limited to three (3) times the Fees paid by You under these Terms in the year prior to the first event giving rise to liability (which in the first year is deemed to be the total Fees paid by You up until the date of the first event giving rise to liability). This does not limit Your obligation to pay the Fees, and does not limit any claim in relation to Data, personal injury or death, or fraud or wilful misconduct.
Neither party is liable to the other under or in connection with these Terms or relating to the Service for any loss of profit, revenue, savings, business, use, or data, or any consequential, indirect, incidental or special damage or loss of any kind.
Before taking any Court action, a party must notify the other of a dispute under, or in connection with, the Terms, as soon as reasonably practicable and must use best efforts to resolve any such dispute through good faith negotiations.
If, following such negotiations, We fail to resolve the dispute, then We will use best endeavours to settle their dispute by mediation before resorting to litigation. Either party may initiate mediation in New Zealand by giving written notice to the other party. The mediator should be agreed between us, but if We cannot agree on one within five days after the mediation has been initiated, then the mediator shall be selected by the Chair for the time being of Resolution Institute or its successor.
Each party must, to the extent possible, continue to perform its obligations under the Terms even if there is a dispute.
No proceedings for the judicial resolution of any relevant dispute between the parties may be commenced until the dispute has gone through the process above. This does not affect either party’s right to seek urgent interlocutory or injunctive relief.
Force Majeure: Neither party is liable to the other for any failure to perform its obligations under the Terms 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 efforts to overcome the Force Majeure; and continues to perform its obligations to the extent practicable.
Rights of third parties: No person other than Us and You has any right to a benefit under, or to enforce, the Terms, unless otherwise specified in this Terms.
Waiver: To waive a right under the Terms, that waiver must be in writing and signed by the waiving party.
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 Terms.
Variation: Any variation to the Terms must be in writing and signed by both parties.
Entire agreement: These Terms set out everything agreed by the parties relating to the Service, and supersedes and cancels anything discussed, exchanged or agreed prior to the Start Date. The parties have not relied on any representation, warranty or agreement relating to the subject matter of the Terms that is not expressly set out in the Terms.
Subcontracting and assignment: You may not assign, novate, subcontract or transfer any right or obligation under the Terms without Our prior written consent. You remain liable for Your obligations under the Terms despite any approved assignment, subcontracting or transfer. Any assignment, novation, subcontracting or transfer must be in writing. Any change of Control of You is deemed to be an assignment for which Our prior written consent is required.
No Agency: No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship between You and Us is intended or created by these Terms.
Notices: Notices to You may be made via either email, regular mail, or displaying notices or links to notices to You generally on the Service. All notices or other correspondence to Us under these Terms must be sent to the following electronic mail address for such purpose:
Law: Theses Terms are 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 these Terms.