Agreement: FlexR Limited (FL) has entered into a Master Client Subscription Agreement (Subscription Agreement) with each of its master clients (Master Clients) in relation to FlexR.

FlexR: FL licenses and operates a cloud based technology platform known as FlexR (FlexR). FlexR includes base functionality and a variety of optional modules (FlexR Module). One FlexR Module is the FlexR mobile device software application (FlexR App). References to “FlexR” in these FlexR Terms of Use include all FlexR Modules that the Master Client has licensed from FL from time to time.

License: Under the Subscription Agreement, FL has granted limited subscription licenses to its Master Client, their employees (Master Client Users) and administrators appointed by the Master Client (Administrators), to use FlexR to process their data, for Administrators to access and use the FlexR Portal and Administrator Tools, and where the FlexR App is included in the FlexR Modules that the Master Client has licensed from FL, the right for Master Client Users and Administrators to access and use the FlexR App.

FlexR Terms of Use: Access and use of FlexR by the Master Client, each Administrator and each Master Client User is subject to the Subscription Agreement and these FlexR Terms of Use (FlexR Terms of Use). Obligations in the Subscription Agreement that apply to a Master Client are deemed to also apply to Administrators and Master Client Users. Administrators and Master Client Users have different levels of access and use rights in relation to FlexR, as set out in the FlexR materials (Materials).

Sublicenses: Provided particular conditions set out in the Subscription Agreement are met, FL has granted the Master Client the right to sublicense use of FlexR to its customers and members (Customers) and their employees and independent contractors (Customer Users), and where such sublicensing occurs, for those Customers and Customer Users to use FlexR to process the Customer’s data. If the FlexR Modules include the FlexR App, then the Master Client is also permitted to sublicense use of the FlexR App to Customers and Customer Users.

Sublicensed Use: These FlexR Terms of Use do not apply to sublicenses granted by the Master Client to Customers and/or Customer Users. Terms of use that apply to Customers and/or Customer Users are available from the Master Client. In accordance with the Subscription Agreement, the terms and conditions of such sublicense must be approved in writing by FL.

Agreement: If an Administrator or Master Client User checks a box indicating acceptance of these FlexR Terms of Use as part of an account setup process, or otherwise indicates acceptance or agrees to be bound by these FlexR Terms of Use, by logging into the FlexR Portal or FlexR App, or otherwise using FlexR, each such Administrator and Master Client agrees directly with FL to be personally bound by these FlexR Terms of Use.

Suspension or termination: The Master Client, Master Client User and each Administrator (You, Your) agrees that FL and/or the Master Client and/or the Administrator can suspend or terminate Your access and use of FlexR (or any part thereof) at any time if:

1. You breach these FlexR Terms of Use or any of the Master Client’s obligations in the Subscription Agreement, or FL reasonably suspects that You have, intend to or are likely to breach these FlexR Terms of Use or any of the Master Client’s obligations in the Subscription Agreement; or
2. the Subscription Agreement expires or terminates.

Restrictions: You agree:

1. except to the extent permitted by FL as part of Sublicensing, not to rent, lease, lend, sell, redistribute, sublicense or allow access or use of, all or any part of FlexR or any content or data contained on or in FlexR including without limitation the Materials;
2. except to the extent expressly permitted by applicable law, not to copy, decompile, reverse engineer, disassemble, reproduce, translate, adapt, vary or modify, attempt to derive the source code of, decrypt, or create derivative works of, all or any part of FlexR or any content or data contained on or in FlexR;
3. not to access or use FlexR for any purpose other than for the Master Client’s reasonable business purposes and as contemplated by the Materials;
4. ensure that any usernames, passwords, or other user credentials provided to You in respect of FlexR are only used by You, are not shared with any other person, and are kept secure and confidential;
5. not access, or attempt to access, any part of FlexR that You are not permitted to access, or to circumvent any technological security or other rights based access system;
6. not develop or use any software that works in conjunction with FlexR, for example a bot, screen scraper or similar, unless provided by FL;
7. not to use FlexR for or in connection with a service bureau operation without the prior written consent of FL;
8. not to use FlexR to send bulk emails to people that have not expressly consented to the same;
9. not upload any content or data to FlexR that is incorrect, unreliable or malicious, or that is, or links to any content that is, unlawful, hateful, abusive, defamatory, obscene, discriminatory, or malicious (including any executable code), or that incites the same or similar behaviour; and
10. not upload any data to FlexR that You have no authority to upload, that You are not permitted to upload or that breaches any applicable laws or third party rights.

Notice: You must immediately notify FL in writing if You breach these FlexR Terms of Use, or become aware of any unauthorised use of FlexR.

Removal: FL and any Administrator may delete, quarantine or modify any data, or other content, uploaded or input into FlexR in breach of these FlexR Terms of Use or the applicable Subscription Agreement, and FL will not be liable to the Master Client, Customer or other third party for any such actions.

Compatibility: FL may determine FlexR’s and/or any FlexR Module’s compatibility with any device, software (including browsers) or operating system from time to time. FL may update FlexR compatibility requirements, software (including browsers) requirements, minimum operating system requirements and deem any version of FlexR (and/or any specific FlexR Module) end of life, and cease to make it available to You, from time to time without notice. FL may also bring any Support for FlexR and/or any FlexR Module to an end, and terminate it from the Agreement, by providing at least three months’ notice in writing to the Master Client.

Suspected Identity Theft alert tools: FlexR may include functionality which allows for an Administrator to identify and alert to FL that a Customer or Customer User or applicant for a trading relationship (as applicable), has provided, or is likely to have provided, false information to the Master Client (Suspected Identity Theft Alert). An Administrator must not trigger the Suspected Identity Theft Alert unless:

1. it has reasonable grounds to believe that the relevant information provided is false; and
2. the Administrator has been expressly permitted by the Customer, Customer User or applicant (as applicable) to trigger the Suspected Identity Theft Alert; or after using reasonable efforts, has not been able to contact the Customer, Customer User or applicant (as applicable) to obtain express permission to make such Suspected Identity Theft Alert.

Removal and availability: If further information becomes available to the Administrator or Master Client and the Administrator no longer considers that false information has been provided, or was likely to have been provided, the Administrator must immediately remove the Suspected Identity Theft Alert. On a Suspected Identity Theft Alert being submitted, FL may notify some or all of its other trusted partners and other master clients that the Suspected Identity Theft Alert has been made, including the provision of identifying information in relation to the Customer, Customer User or applicant (as applicable, and which may include personal information). FL is entirely relying on the Administrator to correctly trigger a Suspected Identity Theft Alert. If the Administrator or Master Client receives a Suspected Identity Theft Alert from FL, such report is Confidential Information, and FL provides no warranty as to the accuracy of such Suspected Identity Theft Alert.

Service authorisations: You acknowledge that FlexR’s operation may rely on FlexR having access to third party software and services licensed by the Master Client, and You agree that if any such required access is restricted or removed, then the operation of FlexR, the FlexR Portal and the FlexR App may be significantly restricted.

Availability: If the Modules include the FlexR App, then the Master Client may only make the FlexR App available for download by Administrators and Master Client Users via the Apple App Store or Google Play (App Stores). The FlexR App will be made available under the FlexR developer account in each of the App Stores, unless otherwise agreed by FL in writing. FL consenting to the Master Client making the FlexR App available in its developer accounts in each of the App Stores does not affect FL’s Intellectual Property rights in any way.

Offer of goods and services: FL and other third party vendors authorised by FL (Third Party Vendors) may offer goods and/or services for sale via FlexR from time to time.

Availability: The goods and/or services offered for sale via FlexR may not be available for purchase in Your particular country or locality. Displaying goods and/or services on FlexR does not imply or warrant that the goods and/or services will be available at any time in Your particular country or locality. Any advertised pricing may not be available in all locations, unless expressly stated.

Location: The provision of goods and/or services outside of New Zealand may attract additional taxes, delivery costs, insurance and fees.

Terms of sale: Purchases of goods and/or services from FL are between You (or the applicable Master Client should You have authority to legally bind them) and FL (except where FL are selling as an agent or on behalf of a Third Party Vendor), and are subject to the FlexR Terms of Sale, available at http://www.flexr.co.nz/termsofsale. Purchases of goods and/or services from Third Party Vendors (including where FL are selling as an agent or on behalf of a Third Party Vendor) are between You (or the Master Client as applicable should You have authority to legally bind them) and the Third party Vendor, and are subject to the terms and conditions of sale, displayed or otherwise available (whether published or linked to) on FlexR at the time of purchase (Terms of Sale).

Payment: Payment will be required to be made to FL or the Third Party Vendor in accordance with the FlexR Terms of Sale or Terms of Sale (as applicable).

Relationship: FL are not a party to, nor liable for, any transaction entered into by You (or a Master Client, should you have authority to legally bind them) and a Third Party Vendor (including where FL are selling as an agent or on behalf of a Third Party Vendor). FL make no representation or warranty regarding the goods and/or services being sold via FlexR by Third Party Vendors, including without limitation regarding quality, fitness for purpose, availability, ownership or otherwise, and all such matters are to be determined directly between You and Third Party Vendor. You acknowledge that FL may receive a rebate or commission as a result of Your purchase of goods and/or services via FlexR.

Payment providers: FL and Third Party Vendors may use third parties to undertake and fulfil financial transactions entered into via FlexR. Accordingly, You (or the Master Client should you have authority to legally bind them) may be providing that third party with your payment information, via a payment using FlexR. As this is also data transmission over the internet, such data transmission is at your own risk, and is in accordance with the third party’s privacy policy and terms of use.

FlexR location: FlexR, and any data input into FlexR, may be located on hardware owned, leased or otherwise made available for use (including via hosting arrangement), by FL, and may be located anywhere in the world, as determined by FL from time to time.

Internet access: For the avoidance of doubt, You are responsible to ensure a high speed, robust and reliable internet connection, with sufficient bandwidth, is available for You to connect to FlexR, at Your cost, and shall ensure that it is using hardware and internet browser software that is sufficient to comply with the Materials.

Security: FL will use reasonable endeavours to implement IT security measures regarding FlexR and its data are substantially in accordance with industry standard practice

Backup policy: FL shall implement reasonable backup policies, requiring backups of FlexR and its data to be undertaken at least daily. These backups are stored by FL in backup and off-site storage, which may be supplied by third parties. FL will use reasonable endeavours to ensure that each backup is available for a minimum period of 30 days.

Disaster Recovery: FL will use reasonable endeavours to ensure any third party engaged by FL hosting FlexR and its data have robust disaster recovery and business continuity processes in place.

Access precautions: You must take your own precautions to ensure that the process which you employ for accessing FlexR does not expose You, FlexR and its data, to the risk of viruses, malicious computer code or other forms of interference which may damage your own computer system.

Virus risk: FL does not warrant that FlexR or its data, or any linked site, is free of viruses, malicious computer code or other interference. FL do not accept responsibility for interference or damage to Your computer system which arises in connection with your use of FlexR or any linked site.

Availability: FL do not warrant that FlexR will be always available, free from bugs, errors, malfunctions, or other failures. FlexR access and use will be temporarily suspended from time to time for maintenance purposes.

Transmission: Unfortunately, no data transmission over the internet can be guaranteed as totally secure. Whilst FL will use reasonable endeavours to protect such information, FL does not warrant and cannot ensure the security of any information which you transmit to FL or FlexR. Accordingly, any information that is transmitted to us is transmitted at Your own risk. Nevertheless, once FL receives Your transmission, FL will use reasonable endeavours to preserve the security of such information.

Data ownership: FL shall own all data associated with the operation, performance and use of FlexR, all analytical information regarding FlexR usage, Transaction information, Unit information, pump pricing of fuel, and all other data in relation to the purchase of goods and services associated with FlexR. The Master Client shall own all data input into FlexR by or on behalf of the Master Client that is the personal information of, or otherwise directly relates to, the Master Client, the Administrators, or any Master Client Users. The Customer shall own all data input into FlexR by or on behalf of the Customer that is the personal information of, or otherwise directly relates to, the Customer and the Customer Users.

Data licence: You grant to FL a worldwide, non-exclusive, royalty free license to use, modify, store, disclose and sublicense any and all such data, including without limitation any personal information, to the extent necessary to provide, update and improve FlexR, to supply any goods or service the Master Client or Customer has requested, and to allow FL to comply with its obligations, and to enforce its rights, pursuant to these FlexR Terms of Use, any other agreement or at law. In addition, You grant FL a worldwide, non-exclusive, royalty free license to use, modify, store, disclose and sublicense any and all data that you upload or input into FlexR, excluding personal information, for any commercial purpose. If You do not own the data, You must ensure that your right to use the data is sufficiently broad to grant the licenses set out above.

FlexR Ownership: All intellectual property rights in and to FlexR remain owned by FL and its licensors.

Restrictions: You shall not:

1. use, modify or otherwise alter FL’s Intellectual Property, except as expressly set out in these FlexR Terms of Use;
2. tamper with or remove any markings, patent numbers or other indication of the source of origin of FlexR placed on FlexR; or
3. damage or otherwise endanger FlexR or FL’s intellectual property rights.

Infringement: You agree:

1. not to cause or permit anything that may damage or endanger FL’s, or its licensors’, intellectual property rights, or ownership thereof;
2. to notify FL of any suspected infringement of FL’s, or its licensors’, intellectual property rights;
3. to take such reasonable action as FL may direct at the expense of FL in relation to such infringement;
4. to compensate FL for any use of FL’s, or its licensors’, intellectual property rights by You or any person associated with You; and
5. not to use FL’s, or its licensors’, intellectual property rights otherwise than as permitted by these FlexR Terms of Use.

Warranty exclusions: FL does not warrant that:

1. FlexR is bug or error free. The existence of any bugs or errors will not constitute a breach of these FlexR Terms of Use;
2. FlexR will be compatible with other software or hardware;
3. any defects, whether notified or not, in FlexR will be corrected by FL;
4. FlexR will always be available, or that access or use will be uninterrupted;
5. FlexR will be secure, or free from viruses or other malicious software; or
6. FlexR will comply or continue to comply with applicable law.

Implied warranties: You agree that You are in trade, and entering into these FlexR Terms of Use for a business purpose, and accordingly the parties agree that:

1. except as expressly set out in these FlexR Terms of Use, access to and use of FlexR and any other goods and services provided by FL are supplied on an “as is” and “as available” basis, without any guarantee, warranty, condition or representations (whether express, implied by law, statute, trade custom or otherwise) including without limitation in relation to quality, merchantability, suitability or fitness for a particular purpose, ownership, title, non-infringement, or otherwise;
2. the implied terms, guarantees, covenants, and conditions in the Contract and Commercial Law Act 2017, Consumer Guarantees Act 1993 and sections 9, 12A, 13 and 14(1) of the Fair Trading Act 1993, do not apply, and are excluded to the fullest extent permitted by applicable law; and
3. this clause 8.2 is fair and reasonable in the circumstances, and that each party has had the opportunity to obtain independent legal advice in relation to this Agreement prior to signing.

Indemnity: You agree to defend, indemnify and hold FL harmless from any and all liabilities, costs (including full costs between solicitor and client), claims and demands, made by any third party, arising out of or incidental to (i) an allegation that the data uploaded to FlexR, or its incorporation or use within FlexR, misappropriates or infringes a third party’s intellectual property or privacy rights, (ii) Your acts or omissions that cause loss, damage or liability to FL, or (iii) Your breach of these FlexR Terms of Use.

Exclusion: Neither party shall be liable to the other party for any indirect loss, consequential loss, loss of profit, loss of bargain, loss of sales or turnover, loss of business opportunity, or exemplary damages suffered by the other party or any third party, whether resulting from any prior misrepresentation, breach of this Agreement, or other dispute arising out of this Agreement, whether contemplated by this Agreement or not, and whether actionable in contract, tort (including negligence), equity or otherwise.

Data: FL shall not in any circumstance be liable for any loss of data uploaded to FlexR, any other data, or be liable for any loss, cost, expense or damage suffered or incurred by the Master Client as a result of loss or reconstitution of data uploaded to FlexR or any other data, whether caused by any defect, malfunction or non-performance of FlexR, or otherwise.

Liability cap: In the event that, notwithstanding clause 9.2 and 9.3, FL is found liable for any damages, loss or liability in connection with these FlexR Terms of Use, such damages, loss and liability will, in aggregate, be limited to $1,000.

These terms and conditions are governed by New Zealand law and the New Zealand courts have jurisdiction, except where the applicable Subscription Agreement requires disputes to be resolved using an alternative dispute resolution process.

FL and You agree to comply with the Privacy Act 2020. You must ensure that you have all necessary permissions, consents and approvals to upload Data, including personal information contained within the Data, to FlexR. FL collects, stores, uses and discloses personal information in accordance with its privacy policy, the current version of which is available on the FL website. FL may update its privacy policy from time to time, by updating the version set out on the FL website. Details regarding the correction of personal information, contact details for FL’s privacy officer and other information are set out in FL’s privacy policy.

FL reserves the right to amend these FlexR Terms of Use from time to time. Any amendments will be effective immediately when available at www.flexr.co.nz/termsofuse. Your continued use of FlexR following such availability will represent an agreement by You to be bound by the amended FlexR Terms of Use.

Master Clients: If You are a Master Client, any queries in relation to these FlexR Terms of Use should be directed to your Administrator.

Administrators: If You are an Administrator, any queries in relation to these FlexR Terms of Use may be directed to FL under the Master Client’s subscription agreement.