You must accept this End User Agreement before accessing and using the Services. If you or an Authorised User does not agree to the terms of this End User Agreement, then you or the Authorised User must not use, and must ensure that no other person uses, the Services.
By accessing the Services, you consent to be bound by the terms and conditions of, and are deemed to be a party to this, End User Agreement. If you do not agree with all of the terms and conditions of this End User Agreement, do not access the Services.
This End User Agreement is entered into by you as an end user of the Services and related services. You confirm that you have the authority to act on behalf of any entity for whom you are using the Services.
From time to time we may need to make changes to this End User Agreement. Please check our terms frequently to stay updated with any changes to this End User Agreement and you agree by continuing to access or use the Services to be bound by the updated terms and conditions.
Definitions and interpretation
1.1 In this End User Agreement unless the context otherwise requires:
Authorised User means any of:
(a) the personnel of the Subscriber’s organisation that the Subscriber has authorised to access and use the Services on its behalf (Personnel);
(b) the clients of the Subscriber who the Subscriber has authorised to access and use the Services (Clients);
and in each instance, who have completed the relevant Authorised User log-on procedure and provided Consent.
Base Fee means the agreed subscription cost per month, or as amended from time to time in accordance with this End User Agreement.
Client Data means any and all data (including personal information) of the Client inputted by you (or on your behalf) or for which you grant access to through the Services.
Confidential Information means any and all data which is not publicly available.
Consent means formal consent to be given by you and any Authorised User (in the manner required by Partly) prior to accessing or using the Services.
Data means any data (including any text or images) inputted by you or for which you grant access through the Service, including Client Data and Third Party Data, but for clarity, does not include any Subscription Data.
Fee Commencement Date means the date from which your monthly payment of fees will commence, being the date on which you sign up for Partly's products.
Fees means the monthly fee payable by you to Partly, calculated as the Base Fee for each month, and the remaining percentage fees from the previous billing month.
Intellectual Property Rights means all intellectual property rights, including patents, copyright, rights in circuit layouts, registered designs, trademarks and the right to have confidential information kept confidential, and any application or right to apply for registration of any of those rights.
Services means the services delivered through the Website (including, as applicable, access to and use of the Software, Subscription Data and Support Services). The Services are intended to allow you to manage products, publish products to sales channels, provide car part fitment data, manage customers and other business details and operations.
Software means the auto parts management software (and any related software) that is owned (or licensed) by Partly Group Ltd and made available to you through the Website.
Subscriber means the main person who registers to access and use the Services, and includes the entity (if any) for whom that person enters into this End User Agreement on behalf of.
Subscription Data means all data made available by us via the Service (including information and material supplied to us by third party licensors and suppliers) and all data created as a result of the provision of the Services to you, and as applicable, other subscribers of the Services (including, without limitation, each Itinerary).
Support Services means all access, support and maintenance services provided by (or on behalf of) us in connection with the Services.
Third Party Data means any and all data (including text and images) of any third party inputted by you (or on your behalf), or for which you grant access to through the Services.
We, us, our or Partly means Partly Group Limited.
Website means www.partly.com or such other site as notified by us from time to time.
You means either the Subscriber and as the context permits, includes the Authorised Users, and your has a corresponding meaning.
2.1 Subject to compliance by you with this End User Agreement: (a) we grant to you and you accept from us, a non-exclusive, non-transferable and non- assignable right for you to access and use the Services for your own internal business purposes only (excluding the commercialisation or exploitation of information technology products or services) while you remain a Subscriber and subject to payment of all Fees; and(b) you hereby subscribe for the Services.
2.2 We reserve the right to modify, amend or cease to offer the Services (or any part of them) upon providing you with five days prior notice.
2.3 You warrant that all information supplied by you to Partly for the purposes of registration on the Website and accessing the Services is true, correct and up to date.
Ownership and Intellectual Property Rights
3.1 Partly holds all rights, including Intellectual Property Rights, required to use, deal in and distribute the Services.
3.2 Subject to this End User Agreement, while you are a Subscriber, Partly grants to you a license to use the Services for internal business purposes only. For clarity, nothing in this End User Agreement confers on you any right or interest in, or licence or permit to use, any of the Intellectual Property Rights in the Services, Subscription Data or Website or any other Intellectual Property Rights owned by Partly or any of our third party licensors or suppliers, other than the express terms of this End User Agreement.
3.3 You acknowledge and agree that:
(a) no obligation, warranty, undertaking or promise made by us in this End User Agreement shall apply in respect of any third party software accessed and used by you (or us for the purposes of fulfilling our obligations under this End User Agreement); and
(b) you shall comply (in all respects) with any restrictions of use in any agreement entered into in respect of any third party software used in connection with (or incorporated into) the Services.
4.1 You are responsible for keeping all access information, including email addresses and log-on credentials, secret and secure. Without limiting the foregoing, you agree:
(a) not to allow any person other than Authorised Users to access and use the Services;
(b) to ensure that Authorised Users do not permit any other person to use their user name or log-on credentials;
(d) not to disclose, or permit any Authorised User to disclose, log-on credentials or any other information that may allow any person to gain access to and use of the Services;
(e) to inform us immediately of any known or suspected unauthorised access to and use of the Services; and
(f) you have sole responsibility for setting the administration privileges of each Authorised User and for monitoring whether those privileges are being adhered to.
Restrictions on use
5.1 The licence granted to you in this End User Agreement may not be sub-licensed, assigned, resold, shared, pledged, rented or transferred , except with the consent in writing of Partly.
5.2 You must not, and must procure that any Authorised user using the Services must not:
make the Services available to any third party, unless explicitly authorised by this End User Agreement or otherwise by Partly in writing;
resell or resupply the Services or the output (or any part of the output) of the Services to any person or entity;
reveal, modify, adapt, reproduce or otherwise use the Services (including any software, documentation or data related to the Services) for any purpose not explicitly authorised by this End User Agreement;
extract, disassemble, decompile, reverse engineer, translate, creative derivative works or otherwise seek to reveal the operating logic of any part of the Services;
use the Services to derive the source code, underlying ideas, algorithms, structure or organisation, or store data/output of the Services, or any similar action, in a manner that facilitates the creation or development of an Application Programming Interface (API) or any functionality of Services;
use or permit (whether directly or indirectly) the use of the Services for any illegal or unethical purpose; or
defeat, avoid, by-pass, remove, deactivate or otherwise circumvent any software protection mechanisms in the Services (or any part of them), including, without limitation, any such mechanism (including the Website) used to restrict or control the functionality of the Services (or any part of them).
5.3 Only where Partly’s prior authorisation has been obtained permitting you to make a copy, any copy made remains subject to the provisions of this End User Agreement, and all titles, trademarks, copyright notices and other legends shall be reproduced on such copy.
5.4 You will at all times, including during and after the term of this End User Agreement, keep the content and output of the Services (or any part of them), your access credentials such as login, password and codes, confidential.
5.5 In respect of your access to and use of the Services you will comply with all applicable laws, rules and regulations, together with all guidelines, procedures and policies notified by Partly from time to time. You must not use the Services:(a) in a way that violates the privacy rights or civil liberties of any person (including in a way that prevents the exercise of them);
(b) in a way that attempts to circumvent, or is otherwise inconsistent with, your payment obligations in (and anticipated by) this End User Agreement;
(c) for any illegal, unlawful or otherwise improper purpose;
(d) to analyse or research the Data in a way that isolates a small group of individuals or any single individual for any unlawful or discriminatory purposes;
(e) to collect personal information about third parties, including without limitation, e-mail addresses; or
(f) in such a way that would ordinarily be considered inconsistent with the reasonable expectation of privacy of an individual any Data relates to.
5.6 You further agree that:
(a) you are solely responsible for the Data, the contents of your e-mail messages, attachments and stored files and we reserve the right to remove from our servers any content that may expose us to potential liability (but for the avoidance of doubt a failure by us to do so does not relieve you from responsibility) or potential negative consequences;
(b) you may not distribute through the Services any attachments, documents or files that: (i) infringe on any Intellectual Property Rights; (ii) violate any law, statute, ordinance or regulation, including but not limited to any applicable privacy legislation, such as the New Zealand Privacy Act 1993 and the European General Data Protection Regulation; (iii) are defamatory, libellous or obscene; or (iv) contain viruses, trojan horses, worms, time bombs, or similar harmful programming routines;
(d) you may not use the Services in a manner that may damage, disable, overburden or impair either the Services or the networks connected to the Services;
(e) you may not attempt to gain unauthorised access to the Services, including but without limitation, through hacking or password mining; and
(f) you may not use the Services to collect personal information about third parties, including without limitation, e-mail addresses.
5.7 You will not provide us with the personal information of any person, or permit any Authorised User to access or use the Services, unless that person or Authorised User:
(a) is over the age of 16; and
(b) has completed the relevant log-in process and provided his or her Consent.
5.8 Terminal equipment, communications links and systems compatibility (and all costs associated with such items) are your (or your Authorised Users, as applicable) sole responsibility. We accept no responsibility for any unavailability of, or defects in, the Website or the Services to the extent such unavailability or defects arise out of or in connection with terminal equipment, communications links or systems compatibility, or your (or your Authorised Users’) failure to make payment of the costs for such items.
5.9 We may at our discretion use technology (including digital rights management protocols) or other means to protect the Services, protect its customers, or to prevent you from breaching this Agreement.
5.10 You may not access or use the Services if you are a competitor of Partly, except with our prior written consent. You may not access or use the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.
5.11 You acknowledge that Partly is not responsible for, and has no liability in respect of, the Data or how you use the Services or Data.
Third party websites and material
6.1 The Website and the Services may contain links to other websites or resources which Partly does not have control (External Websites). Such links do not constitute an endorsement by Partly of those External Websites. You acknowledge that Partly is providing these links to you as a convenience, and you further agree that Partly is not responsible for the content of any External Websites. Your (and your Authorised Users’) use of the External Websites is entirely at your own risk and is subject to the terms and conditions of use and privacy policies located on the External Websites.
7.1 We collect and process your personal information and personal information of your Authorised Users when you (or your Authorised Users, as applicable) access or use the Service. In order to provide you with the Services (and improve on them), we may also collect certain information about the performance of the Services and your (and your Authorised Users’) use of the Services.
7.4 You shall not (and you shall ensure that no Authorised User) accesses or uses the Services without providing Consent.
7.5 You must comply with all privacy laws (including the NZ Privacy Act 1993 and, to the extent applicable, the European Union General Data Protection Regulation) in connection with your collection and use of any personal information of any person.
7.6 You shall not (and shall ensure that none of your Personnel) supply to us, or otherwise use any personal information of a person who is 16 years or under and who resides in the European Union (including the United Kingdom), unless you have obtained express consent to such supply or use from the relevant data subject’s parent or guardian.
8.1 You acknowledge that we are not responsible for, and have no liability in respect of, the Data or how you use the Services.
8.2 Subject to clauses 8.4 and 8.5, title and associated Intellectual Property Rights in the Data remain your (or, as applicable, the relevant Authorised User’s or third party’s) property.
8.3 You grant a non-exclusive licence to us in respect of all Data to the extent necessary to provide the Services.
8.4 You grant to us a non-exclusive royalty free world-wide and irrevocable license permitting us to copy, anonymize, aggregate, process and display Data to derive anonymous statistical and usage data, and data about the functionality of the Service, provided such data cannot be used to identify you (Anonymous Data), for the purposes of combining or incorporating such Anonymous Data with or into other similar data and information available, derived or obtained from other clients, licensees, users, or otherwise (when so combined or incorporated, referred to as Aggregate Data), so as to permit us to provide services including the copying, publication, distribution, display licensing or sale of Aggregate Data and related or similar other statistics or data to third parties (and to you should you elect to subscribe for same) pursuant to a separate licensing or services arrangement or agreement. We will be the owners of all right, title and interest in and to the Aggregate Data.
8.5 By providing Data to Partly, you acknowledge that you allow Partly to utilise this data to improve the user experience and Services for the benefit of you and other Partly users. In particular, Partly may treat the format and structure of any data submitted to Partly by you via the Services as non-confidential and non-proprietary and may incorporate, use, publish and exploit information in a similar format or structure for any purpose, commercial or otherwise, including without limitation for the benefit of other Partly users, without compensation or accounting to you and without further recourse by you.
8.6 You warrant and represent that:(a) you have the right to grant the licences in clause 8.4 and 8.5 in respect of all Data, and inputting the Data in the manner anticipated by the End User Agreement and the Services; and(b) use of the Data by us, you or any Authorised User in connection with the Services will not breach any laws or the Intellectual Property Rights of any person.
8.7 We have in place for our own purposes, policies and procedures to prevent data loss (and recovery) but do not make any guarantee around loss of any Data and, as such, we expressly exclude any liability for any loss of Data. Where we agree to store your Data post-termination we do so on a no-obligation and no-liability basis.
Third party information and services
9.1 You acknowledge that using the Service is dependent on cooperation from third parties (including Third Party Suppliers), and that we are not responsible (or liable in any way whatsoever) for:(a) the acts or omissions of any such third parties; or(b) the accuracy or inaccuracy of any information or data provided by any such third party (including where such information has been inputted into the Services (or made available via the Services) by us).
9.2 You acknowledge that we are simply facilitating your ability to transact with Third Party Suppliers.
10.1 In consideration of your (and your Authorised Users’) use of the Services, you will pay us the Fees, (together with any other costs and expenses payable by you in respect of the Services) on a monthly basis from the Fee Commencement Date.
10.2 Our Fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties, excluding only taxes based solely on Partly's income. If Partly is required to pay or collect any federal, state, local, or value-added tax on any fees charged under this End User Agreement, or any other similar taxes or duties levied by any governmental authority, excluding taxes levied on Partly's net income, then such taxes and/or duties will be billed to and paid by you immediately upon receipt of Partly's invoice and supporting documentation for the taxes or duties charged.
10.3 You agree that your purchase of the Service is not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by us regarding the future functionality or features.10.4 We will review the Agreed Percentage and the Base Fee on an annual basis. We will notify you of any changes to the Agreed Percentage and/or Base Fee for the upcoming financial year, and will do so prior to 31 March. If you do not agree to any proposed changes to the Agreed Percentage and/or Base Fee notified by us, you may terminate this End User Agreement on notice to us effective on the date on which the changes were to become effective.
Payment of Fees
11.1 The Base Fee will be invoiced each month and the amount due will be directly debited from the credit card supplied at the time of your subscription.
11.2 Partly will issue receipt of payment, once any fee is charged on the credit card of the organisation:(a) the percentage transaction fees due that are going to commence in the upcoming billing month and the remaining percentage fees from the previous billing month.(b) any other costs and expenses payable by you in respect of the Services.
11.3 Fees shall be payable by you (without set-off or deduction or counterclaim) on a monthly basis, within seven days of receipt of an invoice from Partly under clause 11.1 and 11.2, which will be invoiced on the first day of each calendar month.
11.4 Where you have provided credit or debit card details to us, we are authorised to deduct any fees from that card as and when due under this End User Agreement.11.5 If you default in payment of any amount payable under this End User Agreement (including by way of any payment we attempt to deduct from your credit or debit card in accordance with this End User Agreement being declined), we may charge interest on the unpaid amount from the due date until the date of actual payment at 2% per annum over the base overdraft facility rate charged by our bankers from time to time.
Payment of Third Party Suppliers
12.1 You are solely responsible for making all payments due to Third Party Suppliers which you may choose to subscribe to.
13.1 This End User Agreement shall be in effect from the first time you access the Services, and shall remain in effect until terminated in accordance with this End User Agreement.
Termination and suspension
14.1 Without limiting any other right or remedy available to Partly under this End User Agreement, if you fail to make payment of any amount due under this End User Agreement by the due date for payment, or you are otherwise in breach of any term of this End User Agreement, we may suspend your (and your Authorised Users’) access to the Services until payment (including any interest payable thereon or any subsequent payments missed) is received or the relevant breach has been remedied.
14.2 We may also suspend your access to the Website and the Services at any time:(a) for such time as is necessary to carry out maintenance determined by Partly to be necessary or desirable;(b) to reduce or prevent interference with the Website or the Services;(c) if required to do so as a result of a direction by any Government, law enforcement or other authority.
14.3 Partly may terminate this End User Agreement by giving the other at least 30 days’ written notice.
14.4 We may immediately by notice in writing to you, terminate this End User Agreement where:(a) you fail to comply with any term of this End User Agreement, including failure to pay any applicable fees or charges;(b) required by law; or(c) we consider it necessary or desirable to do so to protect our interests or the interests of anyone else.
14.5 Upon termination of this End User Agreement:
(a) you must immediately cease (and ensure all Authorised Users immediately cease) to access or use the Services and destroy all access codes or passwords related to the Services and Confidential Information in your possession or under your control; and
(b) all of your Products and Data, other than Anonymous Data or Aggregate Data, shall be deleted from the Services;
(c) any termination will be without prejudice to any prior breaches by you (or any of your Authorised Users) of this End User Agreement; and
(d) any provision of this End User Agreement intended to survive termination shall survive.
Updates and new versions
15.1 We may provide updates to or new versions of the Services (or any parts of it) and reserve the right to take down applicable servers hosting the Website and the Software to undertake such updates or install such new versions. You agree to comply with our instructions in relation to any update, new version or maintenance and we will not be held liable for any upgrade, update, maintenance or new version of the Services (or any part of them).
Records and audit
16.1 You will maintain full, accurate and up to date records of all Client transactions, Third Party Supplier transactions and all inquiries and complaints received in connection with the Services and the Website.
17.1 We will use our commercially reasonable efforts to ensure that the Services are accessible by you in accordance with this End User Agreement, and that Services have the features described on the Website.
17.2 In the event of any breach of clause 17.1, your sole remedy will be (at our option) the resupply of the non-conforming Services within a commercially reasonable time or a refund of the fee paid by you for the particular non-conforming Services.
17.3 Partly does not represent that the Services are error-free or will satisfy your requirements. Nor does Partly provide any warranties in respect of the accuracy, completeness, timeliness or supply of information via the Website. The obligation of Partly in clause 17.1 is in lieu of all other warranties in respect of the Services. To the maximum extent permitted under applicable law, all other warranties, condition and representations, whether express, implied or verbal, statutory or otherwise, and whether arising under this End User Agreement or otherwise, are excluded (including, without limitation, the implied warranties of merchantability, non-infringement and fitness for a particular purpose).
17.4 We use commercially available anti-virus software in the provision of the Services, but we cannot guarantee that the Services will be free from viruses, trojan horses, worms, time bombs, or similar harmful programming routines.
17.5 You agree the Services are acquired for the purposes of a business, and as such, the guarantees provided under the New Zealand Consumer Guarantees Act 1993 do not apply.
Limitation of liability and indemnity
18.1 Except for liability in relation to breach of any Non-excludable Rights and liability, Partly’s maximum aggregate liability to you in contract, including for one or more breaches of any express term or terms of this End User Agreement, tort (including negligence), statute or otherwise, is limited to an amount equal to the Fees actually paid by you in the preceding 12 months when the event giving rise to the liability occurred.
18.2 Under no circumstances will we or our third party licensors, suppliers or resellers (or any of their directors, officers or employees) be liable, whether in contract, equity, tort (including negligence, breach of statutory duty or otherwise) or any other theory of liability for any direct or indirect: loss of profits, loss of revenue, loss of data (including the Data), breach of security or privacy, loss of anticipating savings; or for any indirect, special or consequential loss whatsoever.
18.3 You will indemnify and hold us, our third party licensors, suppliers (and their directors, officers and employees), harmless from all claims, liabilities, damages, losses (including legal fees) and expenses, due to or arising out of your (or any of your Authorised Users’) use of the Services and/or any breach of any term of this End User Agreement by you.
18.4 Other than express terms in this End User Agreement and warranties, conditions, rights or guarantees implied by relevant legislation, the exclusion of which from an agreement would contravene a statute or cause part or all of this clause to be void (Non-excludable Rights), you agree that the Services are supplied “as is” and without warranty of any kind, and Partly excludes all liability arising from any implied or express representations, terms, conditions or warranties that would otherwise apply to the Services.
18.5 For breach of any Non-excludable Rights (other than where by law liability for breach of Non-excludable Rights cannot be limited), Partly’s liability is limited, at its option to, where the breach relates to goods, repairing or replacing those goods, or paying the cost to have those goods repaired or replaced, and where the breach relates to services, supplying those services again, or paying the cost to have those services supplied again.
18.6 Except for liability in relation to breach of any Non-excludable Rights, Partly excludes all liability to User for lost profits, lost revenue, lost savings, lost data (including loss of any user content or patient records) and any consequential or indirect loss arising out of, or in connection with the Services and any claims by any third person or otherwise arising under this End User Agreement, even if Partly knew that the loss was possible, or the loss was otherwise foreseeable.
18.7 Notwithstanding any other provision of this End User Agreement, Partly will not be liable for any loss or damage caused by its failure or delay to supply the Services due to anything outside the reasonable control of Partly including but not limited to Authorised User acts or omissions, system or network failure, failure of any telecommunications facilities (including the internet) or the act or omission of any third party.
19.1 This End User Agreement is personal to you and may not be assigned by you or otherwise dealt with by you without our prior written consent (which may be withheld in our absolute discretion). If you are not a natural person, any change of control in your corporate entity will be deemed an assignment.
19.2 We may assign this End User Agreement at any time by notice in writing to you.
20.1 Neither party shall be liable for any delay or failure to fulfil its obligations under this End User Agreement arising directly or indirectly from any circumstance beyond the reasonable control of the affected party (including, without limitation, acts of God, flood, earthquake, storm, fire, epidemic, war, embargoes, riot or civil disturbance), provided that the affected party shall:
(a) notify the other party as soon as practicable of the events; and
(b) use all reasonable endeavours to continue to perform its obligations and mitigate the effects of the event.
21.1 Unless otherwise consented in writing by one party to the other, each party will maintain the confidentiality of all Confidential Information of the other obtained pursuant to this End User Agreement. The provisions of clause 21.1 do not apply to any information which:
(a) is public knowledge other than breach of this clause 21;
(b) is received from a third party who is in lawful receipt of the information and is able to disclose it to the recipient without restriction;
(c) is required by law to be disclosed.
22.1 You will not commence any court or arbitration proceedings relating to a question, difference or dispute relating to this End User Agreement or the Services (Dispute) unless you have first complied with this section.
22.2 Where any Dispute arises, you (or your representative) and Partly will negotiate in good faith in an attempt to resolve the Dispute amicably.
22.3 Where the Dispute cannot be resolved by way of good faith negotiations within 14 days (or such longer period agreed by you and us) of negotiations commencing, either you or we can elect to mediate any dispute in terms of the Resolution Institute standard mediation agreement.
22.4 If the Dispute cannot be resolved by way of mediation then either party may initiate arbitration in New Zealand.
22.5 Nothing in this section will preclude a party from taking immediate steps to seek urgent injunctive relief before an appropriate court.
23.1 Any problems that occur whilst accessing the Website or the Services should be notified in writing to firstname.lastname@example.org at your earliest convenience.
23.2 This End User Agreement and the provision of the Services provided hereunder will be governed by New Zealand law and you agree to submit to the exclusive jurisdiction of the New Zealand courts in respect of any disputes or claims arising out of or in connection with the Services. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.
23.3 Nothing express or implied in this End User Agreement shall be construed as constituting either party as the partner, agent, employee, officer or representative of, or as a joint venture with, the other party, and neither party will make any contrary representation to any other person.
23.4 If any of provision of this End User Agreement is determined to be illegal, invalid or otherwise unenforceable, then to the extent, it shall be severed and deleted from these terms and the remaining terms shall survive and continue to be binding and enforceable.
23.5 No delay, neglect, or forbearance on the part of either party in enforcing against the other party any term or condition of the End User Agreement shall either be or be deemed to be a waiver or in any way prejudice any right of that party under the End User Agreement.
23.6 This End User Agreement constitutes the entire agreement between the parties with respect to the use of the Services and supersedes all prior or contemporaneous understandings regarding such subject matter.
23.7 Any provision necessary for the interpretation or enforcement of this End User Agreement shall survive any expiry of termination.
23.8 Partly may vary any term of this End User Agreement that does not materially diminish the rights of you at any time by publishing an updated form of this End User Agreement including the varied terms on its website or other publicly accessible location.