Terms of Service
1.1 In this Agreement unless the context otherwise requires, the following terms have the following meanings:
Agreement means this agreement and includes any schedules or appendices.
Business Day means any day which is not a Saturday, Sunday or public holiday in Hamilton, New Zealand.
Commencement Date means the date of account creation and inherent acceptance of these terms, and/or the purchase date of any ModuSense Equipment.
Confidential Information means information that:
(a) is proprietary or of a confidential nature; and
(b) is provided or made available by one party to the other party under or in connection with this Agreement,
but excluding any information which is deemed not to be Confidential Information under this Agreement.
Data means the data gathered, received, obtained, produced or accessed from the Services.
Documentation means the documentation made available to the Customer by ModuSense, either as hard or soft copies or online, from time to time which set out a description of the Equipment, the Software and/or the Services, including any user instructions and any installation guides for the Equipment and the Software.
Equipment means any ModuSense device (physical apparatus) described on this website, including any upgrades, components, additions (including additional sensors), hardware, accessories or replacement parts.
Equipment Defect means a material defect in the design, materials or workmanship of the Equipment not caused by the Customer or its employees, contractors or agents or due to a Force Majeure Event.
Expiry Date means the date on which the Agreement expires. For Software and Services this means the final date of the initial Term that has been subscribed, typically 12 months.
Fees means the Service Fees.
Force Majeure Event has the meaning given to that term in clause 16.
Good Industry Practice means, in relation to any activity, the exercise of a degree of skill, diligence, prudence and foresight which would reasonably and ordinarily be expected from a skilled and experienced person engaged in the same activity, under the same or similar circumstances.
GST means goods and services tax in terms of the Goods and Services Tax Act 1985, at the rate prevailing from time to time, including any tax levied in substitution for that tax but excluding any penalties or interest payable under that Act.
Intellectual Property Rights means trademarks, rights in domain names, copyright, patents, registered designs, circuit layouts, rights in computer software, databases and lists, rights in inventions, confidential information, know-how and trade secrets, operating manuals, quality manuals and all other intellectual property, in each case whether registered or unregistered (including applications for the grant of any of the foregoing) and all rights or forms of protection having equivalent or similar effect to any of the foregoing which may subsist anywhere in the world, including the goodwill associated with the foregoing and all rights of action, powers and benefits in respect of the same.
ModuSense Data Portal Services means the Software as a Service (SaaS) application from which customer data is managed, routed, visualised and stored. The primary URL for this service being https://portal.modusense.com/ .
ModuSense Solution means any combined suite of hardware, software and services to achieve a specific outcome. By way of example, water level monitoring involves a ModuSense Gateway, a depth Sensor and ModuSense Data Portal Services.
Purchase Price means, if applicable, the Purchase Price for Equipment or applicable ModuSense Data Portal Services.
Purpose means the purpose for which a ModuSense Solution is intended.
Service Fee means the charges applicable for the use of a specific Service.
Services means the services provided by ModuSense to the Customer under this Agreement.
Software means any software comprising part of the Equipment or provided by or on behalf of ModuSense as part of the Services.
Specifications means the specifications relevant to any ModuSense Equipment Services, or Software (if any).
Term means the period from and including the Commencement Date to the Expiry Date (if any), unless otherwise terminated in accordance with this Agreement.
Termination Charge means the amount calculated in accordance with Services bound by a specific Term. For example, a Service billed monthly within a 12-month Term commitment would require payment of the balance of the Term prior to termination.
Warranty Period is defined individually for ModuSense Equipment (where applicable).
1.2 Interpretation: In this Agreement, unless the context indicates otherwise:
(a) Clause, schedule and paragraph headings will not affect the interpretation of this Agreement.
(b) 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.
(c) A reference to a company will include any company, corporation or other body corporate, wherever and however incorporated or established.
(d) Words in the singular will include the plural and vice versa.
(e) A reference to one gender will include a reference to the other genders.
(f) A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.
(g) A reference to writing or written includes faxes and e-mail.
(h) References to clauses and schedules are to the clauses and schedules of this Agreement; references to paragraphs are to paragraphs of the relevant schedule to this Agreement.
(i) references to “includes” and “including” do not imply any limitations.
(j) headings are inserted for convenience only and do not affect interpretation.
- Agreement to Prevail
2.1 ModuSense will provide the Equipment, Software, Services, Data and Documentation to the Customer for the Term on and subject to the terms of this Agreement. Any other terms and conditions of the Customer are expressly excluded.
- Supply of Equipment
3.1 If the parties have elected in the Key Terms that:
(a) the Equipment is to be purchased by the Customer, the provisions of Schedule 1 together with the remaining terms of this Agreement will apply between the parties.
- Licence of Software and Documentation
4.1 ModuSense hereby grants to the Customer a non-exclusive, non-transferable right to use the Software and the Documentation for the Term strictly for the Purpose.
4.2 Notwithstanding any other provision of this Agreement, ownership and title to the Software and the Documentation will remain with ModuSense and will not pass to the Customer. The Customer hereby irrevocably assigns to ModuSense any rights it has, or may in future have, in the Software and the Documentation and will, on request, enter into any documentation and take all actions requested by ModuSense in relation to such assignment.
The Customer appoints ModuSense to, and ModuSense agrees to, provide the Services during the Term in accordance with the terms of this Agreement.
5.1 Service specific to the transmission of data via third party will be subject to the terms and conditions of that third party network. Each of the communications partners used by ModuSense and their respective terms of service agreements are available at modusense.com/carrier-terms.
- ModuSense Obligations
6.1 In providing the Services, ModuSense will:
(a) provide the Services in accordance with the Specifications, all relevant laws and regulations and otherwise in accordance with this Agreement;
(b) act with due care, skill and diligence and in accordance with Good Industry Practice;
(c) provide such assistance and information to the Customer as reasonably required for the Customer to obtain the full benefit of the Services.
6.2 ModuSense warrants that it has and will maintain for the Term all necessary licences, consents, and permissions necessary for the performance of its obligations under this Agreement.
- Customer Obligations
7.1 In addition to the Customer’s obligations under Schedules 1 and 2 (as applicable), the Customer will (and will ensure, where applicable, its employees, contractors and agents will):
(a) co-operate with ModuSense and its personnel and follow all reasonable directions given by ModuSense from time to time;
(b) provide all information, instructions and assistance as and when reasonably required by ModuSense to enable ModuSense to exercise its rights and perform its obligations under this Agreement; and
(c) allow ModuSense’s personnel access to any premises and system owned, leased or otherwise controlled by the Customer and will procure access to any third party premises where the any Equipment may be situated, in each case to the extent that such access is necessary for the proper provision of the Services, for installation, maintenance or removal of the Equipment or for ModuSense to perform or exercise any other right or obligation under this Agreement. If and to the extent to which the Customer is unable to procure access to any premises or system in accordance with this clause, then ModuSense will be released from its obligations under this Agreement to the extent that it is unable to perform such obligations without such access; and
(d) ensure that the Customer’s networks and systems (where relevant) comply with the relevant specifications provided by ModuSense from time to time to allow for the performance of the ModuSense Solution and the Services.
7.2 In addition to the Customer’s obligations under Schedule 1, the Customer will not (and will ensure its employees, contractors and agents will not):
(a) except as expressly permitted by this Agreement, copy, modify, duplicate, create derivative works from, republish, download, transmit, disclose or distribute all or any portion of the Equipment, Software or Documentation in any form or media or by any means;
(b) reverse compile, disassemble or reverse engineer any part of the Equipment, Software or Documentation;
(c) use the Equipment, Software, Services or Documentation to provide services to third parties; or
(d) license, sell, rent, lease, transfer, assign, distribute, commercially exploit, disclose, or otherwise make available to any third party or allow any third party access to, the Equipment, Software, Services or Documentation.
7.3 The Customer will use all reasonable endeavours to prevent any unauthorised access to, or use of, the Equipment, Software, Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify ModuSense.
- Defect, Damage and Loss of Equipment
8.1 Where the Equipment has been purchased by the Customer and there is an Equipment Defect during the Warranty Period, ModuSense will repair or replace the Equipment at its election (or the relevant part of the Equipment) as soon as practicable and at no charge to the Customer.
8.2 Any theft or loss of the Equipment or damage to the Equipment (other than due to an Equipment Defect or fair wear and tear) will be the responsibility of the Customer and, where the Equipment is rented by the Customer, the costs of such loss or damage will be invoiced to and paid by the Customer.
- Additional Sensors
9.1 If requested by the Customer, ModuSense may provide additional sensors for the ModuSense Solution for such sensors for such prices and fees as notified by ModuSense from time to time.
- Fees and Payment
11.1 The Customer will pay the Fees to ModuSense for the Equipment and Services in accordance with this Agreement, without set off or deduction. Where the Equipment is purchased the Customer will pay the Purchase Price for that Equipment in accordance with Schedule 1.
11.2 Throughout the Term, the Customer will pay to ModuSense the Fees monthly in advance. ModuSense will invoice the Customer on the last Business Day of each month for the Fees payable in respect of the data usage for the prior month and platform access for the coming month. The Customer will pay those Fees on or before the 20th day of the month following invoice date.
11.3 Neither the Fees nor the Purchase Price include any GST. In addition to such amounts, the Customer will pay to ModuSense the amount of all GST chargeable on any taxable supply by ModuSense under this Agreement.
11.4 ModuSense may set off any amount owed by it to the Customer against amounts owing to ModuSense by the Customer under this or any other agreement.
11.5 If any party defaults for any reason in payment of any amount on the due date (time being strictly of the essence), that party will pay to the party entitled to receive such amount on demand interest at 10% per annum calculated on a daily basis on the amount so unpaid from the due date for payment until payment in full is made, but without prejudice to any of the other party’s other rights or remedies under this Agreement or otherwise in respect of such default.
- Intellectual Property
12.1 The Customer acknowledges and agrees that ModuSense and/or its licensors own all Intellectual Property Rights in the Equipment, Software, Services and the Documentation. Except as expressly stated herein, this Agreement does not grant the Customer any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of the Equipment, Software, Services or the Documentation.
12.2 Subject to clauses 12.3 and 14, ModuSense shall, at its expense, indemnify and hold harmless the Customer, and its officers, directors, employees, shareholders, successors, permitted assigns and agents from and against any and all liabilities, losses, settlements, damages, costs and expenses (including reasonable legal fees) resulting from or arising out of any third party claim or allegation that the ModuSense Solution or Services used within the scope of this Agreement infringe upon, misappropriates or violates any Intellectual Property Rights or other proprietary rights of any other person.
12.3 Notwithstanding the provisions of clause 12.2, ModuSense will have no liability for any claim made under clause 12.2 if such claim is caused by:
(a) modifications made by the Customer to the ModuSense Solution or Services where the unmodified ModuSense Solution or Services do not infringe the third party’s Intellectual Property Rights;
(b) the use of the ModuSense Solution or Services in combination with any other software, hardware, technology or data (excluding any hardware, software or data necessary to use the ModuSense Solution or Services, such as an operating system or processor) not provided by ModuSense where such infringement would not have occurred but for such combination; or
(c) the Customer’s failure to comply with the terms of this Agreement, to the extent the infringement would have been avoided but for such failure.
13.1 Each party will maintain as confidential at all times, and will not at any time, directly or indirectly:
(a) disclose or permit to be disclosed to any person;
(b) use for itself (except as expressly set out in this Agreement); or
(c) use to the detriment of the other party,
any Confidential Information except:
(d) as required by law;
(e) as is already or becomes public knowledge, otherwise than as a result of a breach, by the party disclosing or using that Confidential Information, of any provision of this Agreement;
(f) as authorised in writing by the other party; or
(g) to the extent reasonably required by this Agreement (and, without limiting the effect of this clause, a party may disclose Confidential Information only to those of its officers, employees or professional advisers, on a “need to know” basis, as is reasonably required for the implementation of this Agreement).
13.2 On ModuSense’s request or on termination or expiry of this Agreement, the Customer must:
(a) promptly return to ModuSense in a form reasonably requested by ModuSense; or
(b) if requested by ModuSense, destroy (and promptly certify to ModuSense in writing that it has done so),
all physical and written records, databases or any other medium whatsoever containing ModuSense’s Confidential Information, and all documentation relating to or concerning that Confidential Information.
13.3 Without limiting the effect of clause 13.1, unless required by law or by the listing rules of any relevant stock exchange, neither party will make any announcements or disclosures as to the subject matter of this Agreement, except in a form and manner, and at a time, previously approved in writing by the other party (such approval not to be unreasonably or arbitrarily withheld). If a party is so required to make any such announcement or disclosure as to the subject matter of this Agreement, that party must first give notice of the requirement to the other party, must consult with the other party and must endeavour to agree with the other party on the form of announcement or disclosure to be made.
13.4 This clause 13 will survive termination of this Agreement, however arising.
- Limitation of Liability
14.1 Other that the relevant warranties set out in Schedule 1 and 2 (as applicable), to the fullest extent permitted by law, all express and implied terms, conditions and warranties relating to the ModuSense Solution (including as to its condition, quality or fitness for any particular purpose) and the Services are excluded. Without limiting the foregoing:
(a) the Customer acknowledges that it uses the ModuSense Solution and the Services for business purposes and the provisions of the Consumer Guarantees Act 1993 are excluded; and
(b) ModuSense and the Customer agree and acknowledge that the ModuSense Solution is supplied and used and the Services provided in trade within the meaning of the Fair Trading Act 1986, that sections 9, 12A, and 13 of the Fair Trading Act 1986 will not apply to this Agreement, and that it is fair and reasonable to exclude their application.
14.2 ModuSense will not liable for any damage, injury or loss to any person or property arising from or in connection with the Customer’s possession, operation or use of the ModuSense Solution or the provision of the Services (“Loss”). The Customer indemnifies and will keep ModuSense indemnified against any loss, damage, cost or expense suffered or incurred by ModuSense in connection with any Loss.
14.3 In no event will ModuSense be liable to the Customer or third parties for any loss, damage, cost or other expense caused or incurred by the Customer’s failure to perform covenants and responsibilities owed to such third parties.
14.4 Under no circumstances will ModuSense be liable for special, indirect, exemplary, incidental or consequential damages, including loss of profits or loss resulting from business disruption, even if such party has been advised of the possibility of such damages.
14.5 The aggregate liability of ModuSense, if any, for any losses or damages arising out of or in connection with this Agreement, whether the claim is in contract (including an indemnity), tort or otherwise, will not exceed the Fees and the Purchase Price (if any) paid by the Customer to ModuSense in the  months preceding the date of the loss.
14.6 Notwithstanding the foregoing, ModuSense:
(a) does not warrant that the Customer’s use of the Equipment, Software, Services or Documentation will be uninterrupted or error-free; nor that the Equipment, Software, Services or Documentation will meet the Customer’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;
(c) will not be responsible or liable for any loss, damage, cost or expense suffered or incurred by the Customer, to the extent to which this results from any act or omission by the Customer (or its employees, contractors or agents); and
(d) will not be liable to the Customer to the extent that the alleged loss, liability or damage is caused as a result of:
(i) a modification of the ModuSense Solution by anyone other than ModuSense; or
(ii) the Customer using the ModuSense Solution or Services in breach of, or in a manner not permitted by, this Agreement.
- Term and Termination
15.1 This Agreement will, unless otherwise terminated as provided in this clause 15 or as otherwise agreed in writing, commence on the Commencement Date and will continue until the Expiry Date.
15.2 Without prejudice to either parties other rights, powers and remedies, this Agreement may be terminated immediately by ModuSense giving the Customer written notice, on the occurrence of any of the following events:
(a) if a sum due and payable by the Customer is overdue for payment by the Customer, and the Customer has not complied with a written demand for payment given by ModuSense at least 10 Business Days in advance of any termination notice that it intends to terminate for non-payment;
(b) the Customer commits a material breach of any of the terms of this Agreement and the breach is either incapable of remedy or, if capable or remedy, the Customer fails to remedy the breach within 10 Business Days of having been notice of such remedy by ModuSense;
(c) the Customer has a receiver, liquidator, manager or administrator appointed in respect of all or any of the Customer’s assets or affairs, makes any assignment to, or enters into any arrangement for the benefit of, its creditors generally, becomes unable to pay its due debts in the ordinary course of business or otherwise undergoes any other insolvency event;
(d) the Customer ceases, or threatens to cease, to trade; or
(e) if the Customer does anything which has the effect of bringing the name of ModuSense or ModuSense into disrepute; or
(f) any Force Majeure Event occurs of such magnitude or will be of such duration that it is, or is reasonably likely to be, impossible or impractical for ModuSense to comply, to a material extent, with ModuSense’s obligations under this Agreement (taken as a whole) for a period of 2 consecutive months or longer.
15.3 Without prejudice to either parties other rights, powers and remedies, this Agreement may be terminated immediately by the Customer giving ModuSense written notice, on the occurrence of any of the following events:
(a) ModuSense commits a material breach of any of the terms of this Agreement and the breach is either incapable of remedy or, if capable or remedy, ModuSense fails to remedy the breach within 10 Business Days of having been notice of such remedy by the Customer;
(b) ModuSense has a receiver, liquidator, manager or administrator appointed in respect of all or any of its assets or affairs, makes any assignment to, or enters into any arrangement for the benefit of, its creditors generally, becomes unable to pay its due debts in the ordinary course of business or otherwise undergoes any other insolvency event; or
(c) ModuSense ceases, or threatens to cease, to trade.
15.4 Where this Agreement is terminated by ModuSense pursuant to clause 15.2, the Customer will pay the Termination Charge to ModuSense immediately on demand being made by ModuSense.
15.5 On the expiry or earlier termination of this Agreement for whatever reason, the following provisions will apply:
(a) the Customer will:
(i) return to ModuSense the Equipment in good repair, order and condition, reasonable wear and tear excepted. If any of the Equipment is damaged (other than through fair wear and tear) lost, not in working order or no longer able to be operated, the Customer will reimburse ModuSense on demand (and without set-off, delay or counter demand) for the costs incurred by ModuSense to repair or replace the Equipment;
(ii) make no further use of any ModuSense Solution, the Documentation and other Confidential Information or items (and all copies of them) belonging to ModuSense; and
(iii) pay to ModuSense all moneys payable under this Agreement to the date of such termination; and
(b) ModuSense may destroy or otherwise dispose of any of the Data in its possession unless ModuSense receives, no later than ten days after date of termination of this Agreement, a written request for the delivery to the Customer of the then most recent back-up of the Data. ModuSense will then use reasonable commercial endeavours to deliver the back-up to the Customer within 30 days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer will pay all reasonable expenses incurred by ModuSense in returning and backing-up Data.
15.6 The termination of this Agreement:
(a) will be without prejudice to the rights and obligations of the parties accrued up to and including the date of expiry or termination;
(b) is not an exclusive remedy and the exercise by either party of any remedy under this Agreement will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise, except as expressly provided; and
(c) will not affect any provisions of this Agreement that are intended to continue after termination.
- Force Majeure
Neither party (Affected Party) will have any liability to the other party under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement (other than any payment obligations), or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Affected Party or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors (Force Majeure Event), provided that the other party is notified of such an event and its expected duration and the Affected Party uses its reasonable endeavours to overcome and mitigate the effects of that event.
- Dispute Resolution
17.1 A party may, at any time while there is a genuine dispute relating in any way to this Agreement (Dispute), give written notice (Notice) to the other party specifying the subject matter of the Dispute and requiring that the parties meet within 10 Business Days after delivery of the notice, to attempt to resolve the Dispute (Dispute Resolution Meeting).
17.2 If the parties fail to resolve the Dispute at the Dispute Resolution Meeting, or if a party fails or refuses to attend the Dispute Resolution Meeting within the 10 Business Day period referred to in clause 18.1, or at the time and venue agreed in writing between the parties, the parties will immediately be deemed to have submitted the Dispute to mediation by a single mediator agreed upon in writing by them or (if they are unable to agree on a mediator within 5 Business Days after the submission to mediation) nominated by the President for the time being of the New Zealand Law Society. In the event of any submission to mediation:
(a) the mediator will not be acting as an expert or as an arbitrator;
(b) the mediator will determine the procedure and timetable for the mediation; and
(c) the parties will share equally the cost of the mediation.
17.3 No party may issue any legal proceedings (other than for urgent interlocutory relief) relating to any Dispute, unless that party has first taken all reasonable steps to comply with clauses 18.1 and 18.2.
A waiver of any right under this Agreement is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given. Unless specifically provided otherwise, rights arising under this Agreement are cumulative and do not exclude rights provided by law.
If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions will remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision will apply with whatever modification is necessary to give effect to the commercial intention of the parties.
- Entire Agreement
This Agreement (Terms and Conditions), and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover. Each of the parties acknowledges and agrees that in entering into this Agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this Agreement or not) relating to the subject matter of this Agreement, other than as expressly set out in this Agreement.
Unless otherwise stated in this Agreement, each party will bear its own costs and expenses incurred in connection with the negotiation, preparation and implementation of this Agreement.
The Customer will not, without the prior written consent of ModuSense, assign, novate or transfer all or any of its rights or obligations under this Agreement. A change in the ownership or control of the Customer will be deemed to constitute an assignment for the purposes of this clause. ModuSense may freely assign or novate its rights and obligations under this Agreement without the consent of the Customer.
- No Partnership or Agency
Nothing in this Agreement is intended to or will operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party will have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
24.1 Any notice required to be given under this Agreement will be in writing and will be delivered by hand or sent by pre-paid post or by tracked courier post to the other party at its address set out in this Agreement (or such other address as may have been notified by that party for such purposes), or sent by email to the other party’s email address as set out in the Key Terms (or such other address as may have been notified by that party for such purposes).
24.2 A notice delivered by hand or tracked courier will be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first Business Day following delivery). A notice sent by email will be deemed to have been received at the time of transmission, provide no error message is received by the sender.
- Copies and Counterparts
Any copy of this Agreement that is received by facsimile or via email in PDF or other document reproduction format (including any copy of any document evidencing a party’s signature to this agreement) may be relied on by any party as though it were an original copy of this agreement. This agreement may be entered into on the basis of an exchange of facsimile, PDF or other document reproduction format copies. This Agreement may be signed in counterparts. All executed counterparts together will constitute one document.
- Governing law and jurisdiction
26.1 This Agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by, and construed in accordance with, the law of New Zealand.
26.2 The parties irrevocably agree that the courts of New Zealand have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).