Last updated: 08/05/2023 (to take effect from 01/10/2023)
1.1. These terms and conditions (“Terms”) govern the access or use by you of the OpenLoop app (the “App”) and associated, websites, content, products and services (the “Services”) made available by Counties Energy Limited, a limited liability company established in New Zealand, having its offices at 14 Glasgow Road, Pukekohe 2120, New Zealand ( “we”, “us” or “our”). These Terms replace any existing terms which relate to your use of the Services, with effect from the date set out above.
1.2. Where we refer to “you” or “your” in these Terms, we mean the individual or corporate entity that has accepted these Terms, together with any other persons (including where relevant your employees, contractors or customers) that you provide with access to your Account for the purpose of using the Services (“Authorised Persons”). You will be responsible for any act or omission of any Authorised Person which results in you being in breach of these Terms. Reference to a device means any eligible device that you or any Authorised Person uses to access the Services.
1.3. Additional terms may also apply to the Services, such as policies for a particular event, activity, promotion or referral credit and such terms will be disclosed to you in connection with the applicable Services. These terms are in addition to, and shall be deemed a part of, the Terms for the purposes of the applicable Services. Additional terms shall prevail over these Terms in the event of a conflict with respect to the applicable Services.
1.4. Your use of the Services may also be subject to the terms of your agreement with other third party service providers (such as your fleet payment services provider and data service provider), which will apply in addition to these Terms.
1.5. Please read these Terms carefully before accessing or using the Services.
1.6. Your access and use of the Services constitutes your agreement to be bound by these Terms, which establishes a contractual relationship between us and you. If you do not agree to these Terms, you may not access or use the Services.
2.2. We may also ask you to provide proof of identity to access or use the Services. We may deny you access to, or use of, the Services if you refuse to provide such proof of identity.
2.3. We may collect precise or approximate location data from your mobile device (regardless of whether the App is running in the background or foreground of your mobile device) if you have enabled us to do so. This makes it easier for you to get information regarding the Services, such as the location of Applicable Charging Stations, and helps us to improve the Services. You may enable or disallow us to collect such location data by following the process described in the App. However, this may affect some functionality available in the App.
3.1. You may only use the Services if:
(a) you are the registered user of an account with us in respect of the Services (“Account”) and you maintain accurate, complete and up-to-date information on your Account;
(b) your fleet payment services provider has an agreement in place with us for payment for your use of charging stations via the App; and
(c) you are using the Services for lawful purposes and you comply with applicable laws.
3.2. In accessing and using the Services, you must not:
(a) remove any copyright, trademark or other proprietary notices from any portion of the Services;
(b) reproduce, modify, prepare derivative works based upon, distribute, license, lease, sell, resell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Services except as expressly permitted by us;
(c) decompile, reverse engineer or disassemble the Services except as may be permitted by applicable law or attempt to gain unauthorised access to or impair any aspect of the Services or its related systems or networks;
(d) do any thing which may unduly hinder the operation and/or functionality of any aspect of the Services;
(e) during your use of the Services, access, store, distribute or transmit any:
(i) thing or device (including any software, code, file or program) 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, including worms, Trojan horses, viruses and other similar things or devices; or
(ii) material that is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive or that facilitates illegal activity; or
(f) use the Services in a manner that causes any nuisance, annoyance, inconvenience or is otherwise illegal or causes damage or injury to any person or property.
4.1. The App enables you to use our, or our approved third party providers’ (“Third Party Providers”), electric vehicle (“EV”) charging stations to charge EVs.
4.2. Not all EV charging stations can be used as part of the Services. An up to date list of the EV charging stations that are available for use with the Services is available on the App (“Applicable Charging Stations”).
5.1. Subject to your compliance with these Terms, we grant you a limited, non-exclusive, non-sublicensable, revocable, non-transferrable licence to:
(a) access and use the App on your personal device solely in connection with your use of the Services; and
(b) access and use any content, information and related materials that may be made available through the Services.
5.2. We, or our licensors (as appropriate), own, and shall retain, all rights in and to the Services (including the App). Other than the limited licence granted to you in paragraph 5.1, neither these Terms nor your use of the Services (including the App) grants to you any rights in or related to the same or to use or reference in any manner our company name, logos, product and service names, trademarks or services marks or those of our licensors.
5.3. The App may include functionality which allows you to submit, upload or otherwise make available content to us (which may include feedback related to the Services, entries for competitions and promotions and other textual, audio, and/or visual content) (“Provided Content”). You must not provide Provided Content that is defamatory, hateful, violent, obscene, pornographic, unlawful, or otherwise offensive (as determined by us in our sole discretion). We may, review, monitor, or remove Provided Content, at any time at our sole discretion, in each case without providing notice to you.
5.4. Any Provided Content remains your property, but you grant us a worldwide, perpetual, irrevocable, sublicenseable, transferable, royalty-free licence to use, copy, modify, create derivative works of, and otherwise exploit in any manner such Provided Content and we are not required to provide you with notice of the same.
5.5. In respect of the Provided Content, you represent and warrant that:
(a) you are either are the sole and exclusive owner of all Provided Content or you have all rights, licenses, consents and releases necessary to grant use the license described in clause 5.4 above; and
(b) neither the Provided Content, nor our use of the Provided Content as contemplated by these Terms will infringe, misappropriate or violate any rights of a third party (including intellectual property, proprietary or privacy rights), or result in our violation of applicable law or regulation.
6.2. You are responsible for obtaining all devices, data, connections and other requirements necessary to use the Services. We do not guarantee that the Services, or any portion thereof, will function on any particular hardware or devices. You are responsible for all costs, problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to your devices, network connections or telecommunications links or caused by the internet.
6.3. You acknowledge that the Applicable Charging Stations and associated services may be provided by us or by our Third Party Providers. You may also be able to access and use third-party products, services and content as part of the Services (for example Google Maps). Any such third-party products, services and content are subject to the terms and conditions set by their providers. We do not endorse or assume any responsibility for third-party products, services or content, including your use of the same.
6.4. You are solely responsible for ensuring that your electric vehicle is in good order and repair such that it does not pose any danger to the Services, to any other person (including you) or to any person’s property in connection with your use of any Applicable Charging Stations.
6.5. You acknowledge that we are free to, and frequently do, make changes to the Services (at our discretion), including through the release of new updates, modifications and enhancements to the App, and in some cases discontinue features. We are not required to provide you with notice of any such changes.
7.1. To use the Services, you must register for, and maintain, an Account (of which you may only have one). To register for an Account you must:
(a) be eligible to use the Services (see section 3.1 above); and
(b) provide us with certain registration information, which may include personal information, such as the name, address, and mobile phone number of specified contact person(s) for your Account.
7.2. You are responsible for all activity that occurs under your Account. You must exercise every possible care to ensure the safety of the device you use in connection with the Services by taking all reasonable care to prevent loss, theft and unauthorised or fraudulent use. That includes:
(a) locking your device when it is not in use;
(b) not leaving your device unattended; and
(c) ensuring up-to-date software is installed on your device.
7.3. Any person who can unlock your device may be able to use the Services. You should have a passcode set on your device. If you suspect your passcode has become known to someone else you should change it immediately.
7.4. If you have biometric identification login enabled on your device any person whose biometric identification is stored on your device may be able to access the Services. Accordingly, you must ensure that only your biometric identification is stored on the device if you wish to use biometric identification login to make payments for the Services. Biometric identification login details are stored on your device and not by us, so we cannot verify the identity of any person who uses biometric login to access the Services from your device.
8.1. You must pay charges to us in respect of your use of the Services (and in particular, your use of the Applicable Charging Stations) (“Charges”), if and to the extent to which your fleet payment services provider does not pay the Charges to us on your behalf.
8.2. The Charges, and any other amounts payable by you under these Terms, are stated and payable in New Zealand dollars and are inclusive of GST (if any).
8.3. Different Charges may apply to your use of the Services (for example in respect of different geographical areas or different Applicable Charging Stations). We will use reasonable efforts to inform you of the Charges that may apply to your particular use of the Services in advance, but you acknowledge and agree that you will be responsible for all Charges incurred under your Account regardless of your awareness of the amounts of such Charges. We may establish, remove and/or revise the Charges for any or all services obtained through your use of the Services at any time in our sole discretion.
8.6. Charges paid by you are final and non-refundable, unless otherwise determined by us. In the event of any disputed or unauthorised transactions, please contact us on [email protected] immediately.
9.1 You agree to indemnify, and will keep indemnified, us and our officers, directors, employees and agents (“Indemnified Parties”) harmless from any and all claims, demands, losses, liabilities, and expenses (including legal costs and expenses) suffered or incurred by the Indemnified Parties, or for any claim brought against the Indemnified Parties, that arises out of or in connection with:
(a) your use of the Services (including the App) and services, content or information obtained through your use of the Services;
(b) your breach or violation of any of these Terms; and
(c) your violation of the rights of any third party, including Third Party Providers.
10.1. Your Account will be suspended if your Account is not used for a continuous period of 24 months. You may re-active your Account by emailing us to request this.
11.1. We may amend these Terms from time to time. Amendments will be effective upon us providing written notice of such amendments to you.
11.2. Your continued access or use of the Services after such notification constitutes your consent to be bound by the Terms, as amended. If you do not accept any changes to these Terms you may not continue to access and use the Services and must stop using the Services.
11.3. We may immediately terminate these Terms or any Services with respect to you, or generally cease offering or suspend or deny access to the Services or any portion thereof, at any time for any reason.
12.1. The Services are provided to you “as is” and “as available” and you agree that you are solely responsible for your use of the Services. Other than as expressly set out in these Terms, all warranties, guarantees or obligations imposed on us, or a Third Party Provider in relation to the Services, are excluded to the maximum extent permitted by law. We make no representation, warranty, or guarantee regarding the reliability, timeliness, quality, suitability or availability of the Services or any services, goods or information obtain by you through your use of the Services (including the Applicable Charging Stations), or that the Services will be uninterrupted or error-free.
12.2. We are not responsible for, and make no representations in respect of, any content you access through your use of the Services, or any unauthorised access to any device you use to access the Services and any loss that you suffer in connection with the same (such as corruption of information).
12.3. In no event will we be liable to you for any losses, liabilities, damages, costs or expenses including but not limited to direct, indirect, incidental, special, exemplary, punitive or consequential damages, lost profits, lost data, personal injury or property damage (even if we have been advised of the possibility of such damages) that result from or in connection with, these Terms or your access to, or use, of the Services.
12.4. Nothing in these Terms operates to exclude, restrict or modify any warranties, guarantees or other rights provided by law that cannot be excluded. Our liability for a breach of any such warranties, guaranties or rights arising out of any claim, demand, proceedings or caution whether in contract, negligence or otherwise, in any way connected with the Services shall not exceed the amount of Charges paid by you for the Services over the 12 months immediately preceding the date that the relevant claim arose.
13.1. In these Terms, the words “including” and “include” mean “including, but not limited to.”
13.2. Termination of these Terms will not affect any legal remedies we may have.
13.3. Any provision of these Terms which expressly or by implication is intended to continue in force after termination of these Terms shall remain in full force and effect.
13.4. Subject to any changes that may be made to these Terms from time to time, these Terms constitute the entire agreement between you and us and supersede all previous agreements and undertakings.
13.5. You may not assign or transfer these Terms in whole or in part without our prior written approval.
13.6. Nothing in these Terms has the effect of excluding, restricting or modifying rights which cannot lawfully be excluded, restricted or modified by agreement. If any provision of these Terms contravenes a law or is not enforceable, it will be removed from these Terms, but the rest of these Terms will continue in force.
13.7. We may subcontract or delegate the performance of any of our responsibilities under these Terms.
13.8. Waiver of any power or right under these Terms must be in writing signed by the party entitled to the benefit of that power or right and is effective only to the extent set out in that written waiver.
13.9. These Terms are governed by New Zealand law and the courts of New Zealand shall have the non-exclusive jurisdiction.