The Abley Software as a Service Terms apply to your use of certain Abley services which are provided on a subscription basis, including Abley CarbonWise. Please contact us if you have any questions about the terms that apply to you.
1. Agreement and Priority
1.1 Abley shall provide the Services on the terms of the Agreement, which includes the Services Agreement and these terms and conditions being the Abley Software as a Services terms (Terms) together with any Schedules or other document attached or referenced in the Services Agreement (together the Agreement).
1.2 Where there is any inconsistency between the Services Agreement, the Terms, the Schedules and any attachments, the order of priority shall be the Services Agreement, followed by the Schedules, followed by the Terms, followed by any other attachments.
2. Interpretation
2.1 The definitions and rules of interpretation in this clause apply in this Agreement.
Additional Services: additional services that Abley may provide outside of the Services, typically relating to consultancy, workshops or support relating to the Software and Services;
Affiliates shall be specified in the Services Agreement and always subject to Abley’s written confirmation, means any entity that:
(i) directly or indirectly controls the Client;
(ii) is controlled by or under common control with the Client.
Authorised Users: those employees, agents and independent contractors of the Client who are authorised by the Client to use the Services.
Business Day: a day other than a Saturday, Sunday or public holiday in New Zealand.
Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 10.
Agreement: the Software as a Service Agreement consisting of the Services Agreement the Terms and the schedules specified in the Services Agreement.
Client Information: the information and data inputted by the Client, Authorised Users, or Abley on the Client’s behalf for the purpose of using the Services or facilitating the Client’s use of the Services.
Initial Subscription Term: the initial term of this Agreement as set out in the Services Agreement Detail.
NZD: means New Zealand Dollar.
Normal Business Hours: 8.30 am to 5.00 pm NZT, each Business Day.
Renewal Period: the period described in clause 13.1.
Services: the subscription services provided by Abley to the Client under this Agreement, as more particularly described in the Services Agreement.
Services Agreement: the contract details between the parties setting out the Services provided, the Subscription Fee and other terms between the parties.
Software: the online software applications provided by Abley as part of the Services.
Subscription Fees: the subscription fees payable by the Client to Abley for the Services, as set out in the Agreement Details.
Subscription Term: the Initial Subscription Term together with any subsequent Renewal Periods.
Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by rearranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
2.2 Clause and schedule headings shall not affect the interpretation of this Agreement.
2.3 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors or permitted assigns.
2.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
2.5 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
2.6 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
2.7 A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this Agreement.
2.8 A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this Agreement under that statute or statutory provision.
3. Services
3.1 Abley grants to the Client a non-exclusive, non-transferable right, without the right to grant sublicenses, to permit Authorised Users to use the Services during the Subscription Term in accordance with and subject to the terms and conditions of this Agreement.
3.2 The Client undertakes and warrants that it shall at all times remain liable for the Authorised User’s use of the Services. The Client shall take reasonable steps to prevent unauthorised access to the Services, including without limitation protect its passwords and other log-in information. The Client shall notify Abley immediately of any known or suspected unauthorised use of the Services or breach of its security and shall use best efforts to stop said breach and minimise the adverse impact of said breach on Abley and any of its third party licensors.
3.3 All communication with respect to this Agreement shall be between Abley and the Client.
3.4 The Client and the Authorised Users shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:
(a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
(b) facilitates illegal activity;
(c) depicts sexually explicit images;
(d) promotes unlawful violence;
(e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
(f) is otherwise illegal or causes damage or injury to any person or property;
and Abley reserves the right, without liability or prejudice to its other rights to the Client, to disable the Client’s access to any material that breaches the provisions of this clause.
3.5 The Client shall not:
(a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under this Agreement:
(i) attempt to copy, modify, duplicate, create derive works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software in any form or media or by any means; or
(ii) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software;
(b) access all or any part of the Services in order to build a product or service which competes with the Services; or
(c) unless otherwise agreed, use the Services to provide services to third parties; or
(d) in any way commercially exploit, or otherwise make the Services available to any third party except the Authorised Users.
3.6 The Client shall use all reasonable endeavours to prevent any unauthorised access to, or use of the Services. In the event of any such unauthorised access or use, the Client shall promptly notify Abley.
3.7 The rights provided under this clause 3, are granted to the Client only. No subsidiary, holding company or other affiliated company of the Client is granted any rights to use the Service, unless Abley has given their prior written approval, and which such Affiliate shall be specified in the Services Agreement.
4. Abley’s obligations
4.1 Abley will provide the Services described in the Services Agreement during the Subscription Term and any Renewal Period subject to the payment of the relevant Fees by the Client.
4.2 Abley undertakes that the Services and Additional Services will be provided with reasonable skill and care.
4.3 If the Services and Additional Services do not conform with the foregoing undertaking, Supplier will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Client with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Client’s sole and exclusive remedy for any breach of the undertaking set out in clause
4.4 Notwithstanding the foregoing, Abley:
(a) does not warrant that the Client’s use of the Services will be uninterrupted or error-free; or that the Services and/or the information obtained by the Client through the Services will meet the Client’s requirements; and
(b) is 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 the Client acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
4.5 This Agreement shall not prevent Abley from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this Agreement.
4.6 Abley shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:
(a) planned maintenance carried out during Normal Business Hours; and
(b) unscheduled maintenance performed outside Normal Business Hours;
provided that Abley has used reasonable endeavours to give the Client notice in advance.
4.7 Additional Services Where Abley performs on the instruction of the Client any services which are not Services (“Additional Services”), including without limitation optional services, consulting services, workshops, support, training, Abley shall be entitled to charge for Additional Services in accordance with its standard charging rates on a time and materials basis (or such other basis as is agreed in writing by the parties). Wherever reasonably practical the value or likely value of charges for Additional Services shall be notified to Client in advance of the provision of the Additional Services.
5. Client's obligations
5.1 The Client shall:
(a) provide Abley with:
(i) all necessary co-operation in relation to this Agreement; and
(ii) all necessary access to such information as may be required by Abley;
in order to provide the Services and Additional Services;
(b) without affecting its other obligations under this Agreement, comply with all applicable laws and regulations with respect to its activities under this Agreement;
(c) carry out all other Client responsibilities set out in this Agreement in a timely and efficient manner;
(d) ensure that the Authorised Users use the Services in accordance with the terms of this Agreement and shall be responsible for any Authorised User’s breach of this Agreement; and
(e) obtain and maintain all necessary licences, consents, and permissions necessary for Abley, its contractors and agents to perform their obligations under this Agreement.
5.2 The Client warrants that it shall comply with all laws, including privacy laws and regulations, in relation to receiving the Services.
5.3 The Client warrants any information provided to Abley is accurate, up to date and complete, and the Client is lawfully entitled to provide this.
6. Client Information
6. 1 The Client shall own all right, title and interest in and to all of the Client Information that is not personal data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Client Information.
6. 2 The Client grants Abley a non-exclusive right to use Client Information to improve the Services, develop new Services, undertake research and provide insights, trends and reports for commercial and non-commercial purposes using aggregated and anonymised data and information.
6. 3 For the avoidance of doubt the responsibilities of Abley and the Client in matters relating to the handling of Client Information pursuant to the New Zealand Privacy Act and other applicable privacy and data protection regulations are set out in clause [PRIVACY].
7. Third party providers
7.1 Where the Services make use of third party content Abley is responsible for ensuring that all third party license terms, restrictions on use or otherwise are met however Abley make no representation or warranty as to the fitness for purpose, accuracy or validity of third party content.
8. Payment + Fees
8.1 The Client shall pay for the Services in accordance with this clause 8.
8.2 All amounts payable by the Client shall be paid within twenty (20) working days of date of invoice. The Client must pay any GST on the fees and charges.
8.3 If Abley has not received payment within 30 days after the due date, and without prejudice to any other rights and remedies of Abley:
(a) Abley may, without liability to the Client, disable the Client’s access to all or part of the Services and the Supplier shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
(b) the Client shall pay default interest on overdue amounts from the date payment falls due to the date of payment at the rate of the Consultant’s overdraft rate plus 2% and in addition the costs of any actions taken by the Consultant to recover the debt.
8.4 All amounts and fees stated or referred to in this Agreement:
(a) shall be payable in NZD;
(b) are, subject to clause 12.3(b), non-cancellable and non-refundable;
(c) are exclusive of value added taxes including GST, which shall be added to Abley’s invoice(s) at the appropriate rate.
8.5 Abley reserves the right to adjust the Client’s Subscription Fee from time to time. The adjusted Subscription Fee shall apply from the start date of the upcoming Renewal Period (as detailed in 13.1). The Client shall receive at least sixty (60) days prior written notice from Abley about such adjustment, and the Agreement, with the updated Subscription Fee, shall be deemed to have been amended accordingly. If the Client does not agree to the adjustment, either Party may choose to terminate this Agreement in accordance with these Terms.
9. Proprietary rights
9.1 The Client acknowledges and agrees that Abley and/or its licensors own all intellectual property rights in the Services. This Agreement does not grant the Client any rights to any patents, copyright, database right, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of the Services.
9.2 Abley acknowledges and agrees that the Client and/or its licensors own all the intellectual property rights in the data sent by the Client to Abley via the Services.
9.3 Abley confirms that it has all the rights in relation to the Services that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this Agreement.
9.4 The Services and the Content are owned and operated by the Abley and they are licensed, not sold, to you.
9.5 All Abley logos, trademarks, designs, graphics, icons, scripts and service names are registered trademarks or trade dress of Abley (collectively, the “Company Marks”). In addition, the design, trade dress, and the ‘look and feel’ of tools, maps, visualizations available to Client as part of the Service are protected works under applicable copyright laws and Abley and its affiliates, licensors and suppliers retain all intellectual property rights in them. The license granted to Client in this Agreement does not extend to or include a license to use the tools, maps, visualizations displayed by the Service or any mark, indicator, logo or notation embedded in the maps other than as part of the Service. The Client acknowledges that Abley is the owner and licensor of the Company Marks, including all goodwill associated therewith, and that use of the Company Marks will confer no additional interest in or ownership of the Company Marks in the Client but rather inures to the benefit of the Company.
9.6 All acknowledgements and accreditations must be retained when using the Services.
10. Privacy + Confidential Information
10.1 Each Party shall at all times keep confidential, and not make or allow any copying, disclosure or use of any provision of this Agreement, or of any information directly or indirectly obtained from the other Party, under or in connection with this Agreement, except to the extent:
(a) required by law;
(b) necessary to obtain the benefit of, or to carry out obligations under, this Agreement;
(c) that the information is or becomes available in the public domain without breach by a party of its confidentiality obligations under this clause or at law; or
(d) disclosure is made to a lawyer, accountant, or to any related party or other adviser of that party subject to such party being required to adhere to the obligations relating to information under this Agreement.
10.2 Abley’s Privacy Statement is available at https://www.abley.com/privacy-statement and applies to this Agreement as if stated in these Terms.
10.3 Each party may be given access to Confidential Information from the other party, such as details of the Services or Client Information in order to perform its obligations under this Agreement. Each party shall hold the other’s Confidential Information in confidence and not make the other’s Confidential Information available to any third party or use the other’s Confidential Information for any purpose other than the implementation of this Agreement.
10.4 Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement.
10.5 Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
10.6 This Section supersedes all previous agreements, promises, assurances, warranties and understandings between the Parties, including any non-disclosure agreement entered into prior to the formation of this Agreement. The above provisions of this clause 10 shall survive termination of this Agreement, however arising.
11. Limitation of liability
11.1 Except as expressly and specifically provided in this Agreement:
(a) the Client assumes sole responsibility for results obtained from the use of the Services by the Client. The Supplier shall have no liability for any damage caused by errors or omissions in any information, data, instructions or scripts provided to Abley by the Client in connection with the Services, or any actions taken by Abley at the Client’s direction;
(b) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement; and
(c) the Services are provided to the Client on an “as is” basis.
11.2 Nothing in this Agreement excludes the liability of Abley:
(a) for death or personal injury caused by Abley’s negligence; or
(b) for fraud or fraudulent misrepresentation.
11.3 Subject to clause 11.1 and clause 11.2:
(a) Abley shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this Agreement; and
(b) Abley’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to the total Fees paid for the Services during the 12 months immediately preceding the date on which the claim arose.
12. No warranty
12.1 Abley and its licensors disclaim any and all warranties, express implied or otherwise, of quality, performance, merchantability, fitness for a particular purpose and non-infringement
13. Term + termination
13.1 This Agreement is valid during the Subscription Term, specified in the Agreement Details, and is renewed for successive periods of 12 months (each a Renewal Period), unless otherwise terminated in accordance with the provisions of this Agreement.
13.2 Without affecting any other rights or remedies available to it, each party has the right to terminate this Agreement by notifying the other party in writing no later than one (1) month before the end of the Subscription Term or relevant Renewal Period. If neither party terminates the Agreement, the Agreement shall continue to be valid for the coming Renewal Period.
13.3 If the Agreement is terminated prematurely, the Client is not entitled to a refund of the Subscription Fee, or other fees paid to Abley with respect to the Subscription Term. However, Abley has the right to claim any unpaid or remaining fees and / or deficits from the Client in accordance with the Agreement.
13.4 Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if:
(a) the other party fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment; or
(b) the other party commits a material breach of any other term of this Agreement which breach is irremediable (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so.
13.5 Termination under this clause shall be notified in writing to the following contact person:
Abley: ; and Client: the specified “Client’s Representative in the Services Agreement”
13.6 On termination of this Agreement for any reason:
(a) all rights and licences granted under this Agreement shall immediately terminate and the Client shall immediately cease all use of the Services;
(b) each party shall return and make no further use of any equipment, property and other items (and all copies of them) belonging to the other party;
(c) Abley may destroy or otherwise dispose of any of the Client Data in its possession; and
(d) any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination shall not be affected or prejudiced.
14. General
14.1 This Agreement, including the attachments, contains the entire understanding between the parties concerning its subject matter, and supersedes all previous agreements and understandings between the parties on such subject matter.
14.2 This Agreement may only be varied by written amendment signed by both parties.
14.3 No delay or failure to exercise a right under this Agreement prevents the exercise of that or any other right on that or any other occasion.
14.4 The Client must not assign its obligations under this Agreement to any other person without Abley’s prior written consent. Abley may assign its rights and obligations under this Agreement to its corporate parent, its subsidiaries, or to any company under common control with Abley. Additionally, Abley may assign its rights and obligations under this Agreement to a third party in connection with a merger, acquisition, sale of assets, by operation of law or otherwise.
14.5 Abley may enforce third party Content license terms against Client as a third party beneficiary of those terms. The third party Content providers are third-party beneficiaries under this Agreement and may enforce the provisions that directly concern the Content in which they have rights.
14.6 As the Client receives the Services for the purposes of a business as defined in the Consumer Guarantees Act 1993, the provisions of that Act do not apply.
14.7 This Agreement is governed by the laws applying in New Zealand and each party submits to the non-exclusive jurisdiction of the New Zealand Courts.
15. Product specific terms
15.1 CarbonWise
The conversion factors used in CarbonWise come from the New Zealand Government Ministry for Environment Emissions Factors (latest available data). Abley makes a number of assumptions regarding the commuting data which are listed in the CarbonWise dashboard report and Abley has taken reasonable care to ensure the information is accurate, but cannot be held liable for any errors or omissions.
Last update March 2022