Mooven's General Terms
These General Terms (Terms) apply to your use of the Mooven's software, solutions and other services (the Service) and are entered into by Mooven Limited (Mooven, we or us) and you, being the person or entity that has agreed to be bound by these Terms when signing up via our website or written agreement (you).
If you are entering into the Terms of behalf of an entity or organisation, you represent and warrant that you have the full authority to legally bind that entity or organisation to these Terms.
Last updated: 23 April 2018
1. About these Terms
- Mooven’s General Terms contain important details about the Services and our relationship with you. By signing the Mooven Agreement, you acknowledge that you have read the General Terms thoroughly and agree to them.
- Mooven’s General Terms will commence on the date both you and Mooven have signed a Mooven Agreement and continue to apply for as long as Mooven provides Services to you.
- The agreement will be made up of the following documents: An Order Form which describes the services that we will provide to you, and the Mooven General Terms, which together will be call the Agreement. If there is any conflict between any components of this Agreement. Then the following order of precedence will apply: first, the Order Form, then the General Terms.
- These Terms apply to you if you sign up for a free trial of Mooven's Service.
- Capitalised terms used in these General Terms are defined in clause 13 of Mooven’s General Terms.
- From time to time you and Mooven will agree a Order Form that incorporates these General Terms (Agreement). These General Terms form part of the Agreement and contain general provisions that apply to all Services provided to you under the Agreement. These General Terms do not create any rights or obligations except as part of such an Agreement.
2. Mooven's Responsibilities
2.1 Services: We will provide the Services to you:
a) in accordance with any applicable Specifications and Service Levels, although we do not guarantee that the Services will be continuous or fault free;
b) by any time agreed in writing with you, or otherwise within a reasonable time;
c) using reasonable care and skill; and
d) using people who have the necessary qualifications and experience.
2.2 Mooven Insights Portal: When we provide access to the Mooven Insights Portal to you, it will be tested and approved for production release, and provided as is with associated and any agreed Service Levels.
2.3 Faults: If you report a fault to us, we will respond in accordance with any Service Levels or otherwise within a reasonable period of time.
2.4 Suspension or restriction of Services: We may suspend or restrict Services, including access to the Mooven Insights Portal, where it is considered by us to be reasonable or necessary, for example, to undertake maintenance or repairs. We will endeavour to give you at least 5 days’ notice of scheduled maintenance or repairs, if this is likely to affect the Services. Where practicable, we will schedule maintenance and repairs to minimise disruption to you.
3. Customer's Responsibilities
3.1 Use of Services: You will
a) comply with all terms and conditions in the applicable Order Form, and all Third Party Licence Terms we notify you of as being applicable to your use of our Services;
b) follow our, and any manufacturer’s or Third Party Software licensor’s reasonable directions about the use of the Services;
c) only use the Services for your own internal business purposes, and for any purposes specified in the applicable Order Form;
d) only use the Services for lawful purposes and not for fraudulent or destructive purposes or to defame anyone, infringe anyone's property rights, infringe any privacy rights, or alter anyone's private records and data or otherwise;
e) not sell, rebill or otherwise provide the Services to any third party without first obtaining our permission;
f) not allow the Services to be affected by any virus, worms or other destructive media;
g) be responsible for anyone who accesses or uses the Services, whether authorised by you or not. We will take reasonable precautions to preserve access security although we will not be responsible for ensuring that the Services will not or cannot be misused by you or any third party, and
h) not use, or attempt to use, any information, data and content provided to you in the Services in any way that may identify an individual.
3.2 Reliance: While Mooven endeavours to ensure that any information and content in a Services provided to you under any Order Form is accurate and current, Mooven cannot accept any responsibility or liability for the accuracy of such information or content, or for any thing that results from your use of or reliance on such information or content. You agree to take specific advice from qualified, professional people before undertaking any action as a result of any information or content provided to you in accordance with this Agreement.
3.3 Customer Material: From time to time, you may provide Customer Material to Mooven to enable Mooven to provide Services to you. You confirm that:
a) you will provide all Customer Material to Mooven in accordance with this Agreement, and the applicable Order Form;
b) the Customer Material is sufficiently accurate and complete to enable Mooven to provide the Services to the levels required by, and in compliance with, the relevant Order Form;
c) you have all necessary permissions, rights, title and interests in and to the Customer Material to enable you to provide such to Mooven as contemplated in this Agreement, and to enable Mooven to use it in accordance with this Agreement to perform the Services, including any necessary consents from individuals or third parties to which Customer Material relates in accordance with the New Zealand Privacy Act 1993 or requivalent;
d) the media upon which any Customer Material is provided to Mooven is not damaged, defective, unreadable or unauthorised in any way;
e) you will apply appropriate security measures to all Customer Material provided to Mooven, including ensuring the use of secure file transfer, encrypting sensitive data and otherwise comply with the requirements set out in a Order Form;
f) you are responsible for maintaining all original copies of Customer Material and will backup all Customer Material prior to delivery to Mooven. Mooven does not guarantee there will be no loss, interference with, damage or degradation to Customer Material and will not be liable in relation to such;
g) you grant Mooven, including its third party contractors, agents and service providers involved in the performance of the Services, the right to use, copy, transmit, store, process and back-up Customer Material within and/or outside New Zealand for the sole purpose of providing the Services to you and as otherwise set out in a Order Form. This right includes Mooven’s consumption of cloud services outside New Zealand, and
h) where any Customer Material is subject to governmental regulation or you may otherwise require security measures beyond those specified by Mooven for the Services, you will not to provide such Customer Materials to Mooven unless Mooven has first agreed in writing to provide additional required security measures.
You acknowledge that if you do not comply with this clause 3.3, Mooven may not be able to provide the Services to you, and will not be liable to you to the extent it is unable to do so.
3.4 Third Party Requests: Other than in accordance with laws, Mooven will not provide any third party (other than its subcontractors, agents and service providers involved in the performance of the Services) with access to the Customer Material, and will have no obligation to modify, update or delete any Customer Material at the request of any third party, including requests from government agencies or your own end users, clients or customers. Mooven shall refer any such third party requests for access to Customer Material to you.
3.5 Deleting Customer Material: If you instruct Mooven to delete part or all of the Customer Material, Mooven will do so within 14 Working Days. Mooven shall not be liable for any time delay in the provision of Services due to your request to delete any Customer Material.
3.6 Indemnity: You indemnify Mooven, its personnel, subcontractors and Related Companies against all losses, damages, claims, demands, costs and expenses (including reasonable legal expenses) suffered or incurred by Mooven as a result of any use of the Services by you, your agents, Related Companies, subcontactors or customers other than in accordance with this Agreement, and/or actual claims by any third party alleging that Mooven’s use of your Pre-Existing IP or Customer Material infringes the intellectual property rights of that third party.
3.7 Third Party Terms: Mooven licences travel time data from Google to provide real-time insights into traffic movements and congestion. This data is collected from users of Google products and has all personally identifiable information removed. Mooven is bound by the Google license terms. You agree to comply with the Google licence terms to the extent they are applicable to you including complying with the then-current terms at the URLs listed below:
a) Google license terms at https://enterprise.google.com/maps/terms/apac/premium-maps-terms.html;
b) the Google Maps / Google Earth Additional Terms of Service at https://maps.google.com/help/terms_maps.html;
c) the Google Maps / Google Earth Legal Notices at https://maps.google.com/help/legalnotices_maps.html;
d) the Service’s Acceptable Use Policy at https://enterprise.google.com/maps/terms/universal_aup.html;
e) the Google Maps / Google Earth Additional Terms of Service https://maps.google.com/help/terms_maps.html; and
f) the Google Maps Controller-Controller Data Protection Terms https://privacy.google.com/businesses/mapscontrollerterms/
4. Charges and credits
4.1 Our Fees: You will pay all of our charges in relation to the Services, plus any applicable goods and services or similar taxes (“Fees”). Fees will be detailed in the applicable Order Form.
4.2 Commencement of Fees: We may begin invoicing you once the Services have been made available to you.
4.3 Payment: Unless otherwise agreed, you must pay all undisputed Fees by the date specified on the invoice, or if no date is specified then within 20 Business Days of the invoice date, without set-off or deduction. Payment may be made by direct credit or as otherwise agreed with us.
4.4 Disputed Fees: If you dispute a Fee in good faith, you may withhold payment of that Fee if you:
a) pay all undisputed Fees by the due date, or if no due date is specified within 20 Business Days of the invoice date;
b) provide us with a written explanation of the reasons for your dispute of the Fee within 1 month of the date of the relevant invoice; and
c) cooperate with us to promptly resolve the disputed Fee.
If we determine, in good faith, that the disputed Fee does not in fact contain an error, we will notify you and, within 5 Business Days of receiving notice, you must pay the Fee irrespective of your having disputed the Fee, and without set-off. If you maintain your dispute of the Fee, the procedure in clause 12.5 may be invoked. If the dispute relates to billing errors, we may credit or debit, as applicable, the net difference between any discovered overcharge or undercharge.
4.5 Late payment: All Fees which are:
a) not subject to a genuine dispute but remain unpaid 20 Business Days after the due date for payment; or
b) disputed under clause 4.4 but which we have determined do not contain an error and that remain unpaid 5 Business Days after the date of our notice to you under clause 4.4,
are subject to interest charged on a monthly basis from the due date for payment until the date on which you make payment in full to us at the Bill Rate plus 3% per annum. In addition to such interest, you agree to pay any costs that are incurred by anyone (including agents) in recovering the money you owe or in exercising any other rights, including recovery of commissions and legal costs on a solicitor and client basis. These remedies are without prejudice to Mooven’s other remedies.
4.6 Estimates and quotes: All prices stated in the Agreement are the correct prices unless it is stated that they are estimates. You acknowledge that an estimate does not foresee every circumstance. We will advise you in writing if we believe an estimate will be exceeded.
Where we give you a quote in relation to Services, the quote will remain valid for 10 Business Days from the date it is given, unless stated otherwise in the quote. However, we may vary or withdraw a quote at any time before you accept it by notice in writing.
4.7 Changes to Fees: We may change the Fees:
a) if we agree to change the Services at your request;
b) on one month’s notice to you if we have to pay another third party supplier or one of our Related Companies more for anything used to provide the Services, but not by more than the increased amount that we have to pay for your Services; or
c) on two months’ notice to you.
4.8 Goods and Services Taxes: The Fees exclude any Goods and Services Taxes. If any Goods and Services Taxes apply to any supply we make under the Agreement, you will pay us, in addition to and at the same time as the Fees, an amount equal to such Goods and Services Taxes, subject to receipt of a tax invoice.
4.9 Taxes: The Fees are exclusive of all Taxes. If:
(a) you are required by law to make any deduction or withholding from any amount payable to us under the Agreement; or
(b) we are required by law to pay any Tax in relation to the provision of the Services or in relation to any amount receivable by us under the Agreement,
the amount payable by you to us shall be increased such that, after making the deduction, withholding or payment, we receive and retain a net amount equal to the amount that we would have received and retained had no such deduction, withholding or payment been made.
4.10 Information: If you deduct or withhold any amount from a payment to us under clause 4.9, you will, at our request, provide us with reasonable evidence of payment of the deduction or withholding to the relevant tax authority.
If any exemptions apply, we will employ our reasonable efforts to provide the information required to obtain an exemption.
5. Privacy Commitements
5.1 Mooven’s Privacy Commitments: Mooven will comply with the Privacy Act 1993, and its Privacy Commitments and agrees it has appropriate practices in place to ensure it and its personnel comply with that Act and fulfil those Privacy Commitments.
5.2 Customer’s Privacy Commitments: The Customer will comply with the Privacy Act 1993, and will have transparent privacy policies and appropriate practices in place to ensure it and its personnel comply with that Act and fulfil those policies.
5.3 Mooven privacy commitments to other customers: You acknowledge that Mooven has various privacy commitments (including under the Privacy Act 1993) to its other customers and data providers and you agree not to do anything that causes any of those commitments to be breached by Mooven.
5.4 Termination of Services: In addition to its rights in clause 8, Mooven reserves the right to suspend or terminate the provision of any Services to you if Mooven considers, acting reasonably, that your use of those Services does not comply with the Privacy Commitments or if Mooven has reasonable concerns about your privacy practices.
6. Intellectual property rights
6.1 Pre Existing Intellectual property: All Intellectual Property which is owned by, or proprietary to us or you or any third party as at the date of this Agreement (Pre Existing IP) will at all times remain owned by that party exclusively. Except where this clause 6 or the terms of a Order Form expressly provide otherwise, nothing in the Agreement will confer on either party any rights, title, or interest in Pre Existing IP of the other party.
6.2 Mooven Intellectual property: All right, title and interest (including all Intellectual Property Rights) in the Mooven Services and the platform, software and systems used to deliver the Mooven Services remain owned by us and/or our third party licensors. This includes any improvements made to the Service from time to time, including all modifications, changes or improvements whether based on Mooven knowledge or any anonymous, aggregate usage data relating to your use of the Mooven Services, and any suggestions, ideas, information or feedback that you may give us.
6.3 Customer Intellectual property: Subject to clause 6.2 any Intellectual Property generated by Customer when implementing the Mooven Service within their business will vest in the Customer or its nominee(s) as and when that Intellectual Property comes into existence. This clause relates to a Customer's use of the Mooven Service and does no confer any right, title or interest in the Mooven Service.
6.4 Licence to Mooven: Customer grants to Mooven a non-exclusive, non-transferable, royalty-free, licence to use, copy, modify and adapt Customer Materials to the extent necessary for Mooven to perform its obligations in accordance with the Agreement, unless otherwise specified in a Service Schedule or Order Form.
6.5 Licence to Customer: Mooven grants to Customer a non-exclusive, non-transferable licence to use the Services provided to Customer under the Agreement for its own internal business use during the Term, limited to the extent of the purpose or any restrictions specified, and otherwise in accordance with, a Order Form.
7.1 Software license: We grant you a non-exclusive and non-transferable licence to use Software provided by Mooven as part of the Services (other than Third Party Software for which the Third Party Licence Terms will apply), solely for your own internal business use and in accordance with any terms upon which the Software is ordinarily licensed or which we notify to you. You are not granted any right to sub-licence, copy, modify or reverse assemble the Software. We may suspend, block or terminate your use of any Software if you fail to comply with any such terms.
7.2 Upgrades: As long as an upgraded or new version of Software we provide to you does not adversely affect any Services we provide to you, or your use of our Services, you must install the upgrade or new version as soon as you reasonably can and not later than six months after we provide it to you, or immediately if we notify you that the Services may be adversely affected if the upgrade or new version is not installed. If you fail to do so, we may not be able to provide you with the affected Services and we will not be liable to you for any failure to do so. At the end of the Initial Term of each Service, we may review the Services provided to you and at our discretion may require you to migrate to a new version of the Services.
7.3 Third Party Software: In some circumstances, to use our Services you may need to licence software directly from a third party. Your use of such Third Party Software is governed by the terms of your relationship and agreement with that third party and not this Agreement, and Mooven has no liability or responsibility to you in relation to such Third Party Software.
7.3 Security: Although we implement security measures to help protect our systems and any information you provide us, you acknowledge that use of the Mooven Portal and any Services involves transmission of data over networks that are not owned, operated or controlled by us. We are not responsible for any data that is lost, corrupted, intercepted, modified or stored across such networks. You acknowledge and agree that, to the extent permitted by law, we cannot guarantee that the security measures will be error-free, that transmissions of data will always be secure or that our security measures (or those of our third party service providers) will always be incapable of being hacked or circumvented by unauthorised third parties.
8.1 Termination at any time: Unless otherwise specified in the applicable Order Form, the Service may be terminated in full or in part at any time by either party on 10 days notice to the other.
8.2 Breach and insolvency: Either Party may immediately terminate (or in the case of Mooven, may also suspend) all or any part of the Agreement by written notice to the other Party if the other Party:
a) commits a material breach of the Agreement which is incapable of remedy;
b) fails to remedy any material breach of the Agreement which is capable of remedy within 20 Business Days after receiving written notice of the breach; or
c) is Insolvent.
Termination or suspension under this clause 8 may be of the entire Agreement or of any of the Services affected by the material breach or Insolvency.
8.3 Ending Services: We may cease providing or change all or part of any Service if:
a) the Service or Mooven Portal is no longer viable, is to be withdrawn from general availability by us, cannot be provided, is to be replaced with a new Service, or we no longer have the necessary third party rights to provide the Service or a part of it; or
b) software, equipment or property used to provide the Service becomes obsolete or beyond economic use or support, or
c) a legislative or regulatory change occurs that impacts our ability to provide the Services.
We will use all reasonable endeavours to give you at least 1 months’ notice of any intended cessation under this clause.
8.4 Continuing rights and responsibilities: Termination of the Agreement does not affect any rights and responsibilities under the Agreement which are intended to continue, or come into force, after the Agreement ends.
9.1 Warranties excluded: Unless otherwise expressly stated in the Agreement, all warranties, representations or conditions relating to the Mooven Portal, any Services, (whether express, implied or whenever arising) whether originating in statute, law, trade, custom, or otherwise that would (but for this clause) apply, are expressly excluded to the fullest extent permitted by law. We do not accept any liability in respect of third party data or other content available via the Mooven Services.
9.2 Limitation of Liability:
a) Subject to clause 9.3, the combined maximum liability of one Party in respect of claims in connection with this Agreement in contract, tort (including negligence) or otherwise (each a "Claim"), shall be limited to the lower of:
(i) the total Fees for the affected Services in the 3 month period preceding the month in which the relevant event or circumstance or series of related events or circumstances arose; and
(ii) $100,000 in the aggregate in respect of all events and circumstances in any 12 month period,
provided that the claiming Party notifies the other Party of its Claim within 12 months after the relevant event or circumstance becomes reasonably discoverable.
b) Subject to clause 9.3, no Party shall be liable in connection with a Claim for:
(i) any breach of this Agreement to the extent that the breach is attributable to the prior default, negligence, misconduct or breach of the other Party, its employees or agents; or
(ii) any indirect or consequential loss, or for any loss of revenue, profits, goodwill, business or anticipated business, anticipated savings or for any business interruption or loss of data, whether or not that loss was, or ought to have been, contemplated by the Party in breach.
9.3 Exclusions: Clause 9.2(a) shall not apply with respect to any obligations for the payment of Fees (including any interest on outstanding Fees) under this Agreement.
9.4 Indemnity Procedures: The procedure for handling a third party intellectual property right claim will be as follows:
a) the indemnified party must promptly notify the other party in writing of any allegations of infringement of which it has notice, or becomes aware, and must not make any admission, or purport to settle any such claim without the other party's prior written consent (which will not be unreasonably withheld or delayed);
b) the indemnified party will, at the other party’s request and expense, allow the other party to conduct and/or settle all negotiations and litigation resulting from any such claim, provided always that the indemnified party will be entitled to be represented at, and be consulted on, all such negotiations; and
c) the Indemnified Party must, at the request of the other party, afford all reasonable assistance with such negotiations or litigation and keep the other party informed of all developments relating to the third party intellectual property right claim.
9.5 Force Majeure: Notwithstanding any other provision in this Agreement, neither Party will be liable for any failure or delay in complying with any obligation under this Agreement (excluding any payment obligation) if:
a) the failure or delay arises from a Force Majeure Event;
b) the affected Party, on becoming aware of the Force Majeure Event, promptly notifies the other Party in writing of the nature of, the expected duration of, the obligation(s) affected by, and the steps being taken by that Party to mitigate, avoid or remedy, the Force Majeure Event; and
c) the affected Party uses its best endeavours to:
d) mitigate the effects of the Force Majeure Event on that Party’s obligations under this Agreement;
e) perform that Party’s obligations which are not affected by the Force Majeure Event; and
f) perform that Party’s obligations under this Agreement on time despite the Force Majeure Event.
g) Performance of an obligation affected by a Force Majeure Event will be resumed as soon as practicable after the termination or abatement of the Force Majeure Event
9.6 Mitigation: Each Party shall take reasonable steps to mitigate any loss or damage it may suffer under this Agreement.
10.1 Confidentiality: Subject to clause 10.2, a Party receiving Confidential Information (recipient) of the other (discloser) must:
a) keep in strict confidence any Confidential Information;
b) take precautions to preserve the confidentiality of the Confidential Information;
c) not disclose the Confidential Information to any person (other than in accordance with this clause) including, for the avoidance of doubt, any third party engaged in reviewing costs and pricing;
d) use the Confidential Information only for the purposes authorised in writing by the discloser at any time;
e) make copies or excerpts of the Confidential Information only to the extent strictly necessary for the purposes authorised in writing by the discloser at any time;
f) return to the discloser or destroy all Confidential Information, including copies and digital files if requested by the discloser, and if requested by the discloser provide written confirmation that all files and copies have been destroyed or returned, provided that any Confidential Information which is contained in any of the recipient’s board papers, back up tapes, or in any notes or records which the recipient is otherwise required by law to retain does not have to be destroyed if the recipient identifies the precise Confidential Information which has been retained and ensures that such information is only used for the purposes authorised under this clause 10.1; and
g) take all necessary action to prevent any unauthorised person obtaining access to the Confidential Information.
10.2 Confidentiality Exceptions: Clause 10.1 applies except:
a) where the discloser has given written consent to specific Confidential Information being released to a specific person;
b) if the Confidential Information is generally and publicly available other than as a result of a breach of this Agreement by the recipient;
c) to Confidential Information legally obtained from a third party who is free to disclose it; or
d) if disclosure of the Confidential Information is required by law or a Stock Exchange requirement (in which case the recipient must immediately notify the discloser of this requirement).
The recipient may disclose Confidential Information to its employees and professional advisors, but only to the extent necessary for the purposes authorised by the discloser at any time and will procure that such employees will comply with the confidentiality terms contained in clause 10.1.
10.3 Password for online access: You will keep any passwords or codes used to access the Mooven Portal confidential in accordance with clause 10.1 and will only disclose them to those of your employees and agents who need them to access the Mooven Portal for you and for whom you have been provided with user rights by us as identified in a Order Form. You will ensure that the Mooven Portal is accessed only for your own business use and you shall not login or attempt to login to the Mooven Portal as another user. You agree these passwords or codes are only made available to you in accordance with this Agreement and you must not transfer or sell them to anyone else. We may require you to change any password or code, but we will always give you as much notice as we reasonably can before doing so.
10.4 Public Announcements:
a) Where possible, Mooven wishes to assist you to enjoy and make use of the information provided to you as part of the Services or any Services. However, because of the complexity around some data, and in some cases the third party rights associated with data, we do require that you seek our prior written approval before making any public announcements or references about any data, information, findings or content provided to you as part of the Services, unless previously agreed.
b) Unless required to by law, you must not make any public announcements or references about this agreement, the Services, any Services or any action taken under this agreement, without the prior written consent of Mooven.
c) Mooven may, subject to your prior written approval, use your company name / company name as reference in any sales material to be presented to any future clients without disclosing any details of this agreement.
11. Customer account information.
11.1 Collecting Customer Account Information: During your relationship with us, we may collect personal information about you or your employees (including but not limited to names, addresses, email addresses and phone numbers), and other information relating to your account, billing, service usage and activity (Customer Account Information). We may:
a) hold that information and share it with our employees, Related Companies, suppliers, contractors, other agents and service providers approved by Mooven where it is necessary to enable us to offer or provide you the Services, let you know of other products and services that we consider may be of interest to you, send you invoices, check that your responsibilities are being met, or otherwise to administer and enforce the Agreement, including within a reasonable period after this Agreement has ended;
b) obtain that information by monitoring live chats, telephone calls or other communications between Mooven and the customer for training purposes;
c) share that information with law enforcement agencies if we reasonably consider that unlawful activity is taking place using Mooven or there is a risk of any kind to Mooven;
d) use that information on an aggregated basis for statistical and market research purposes, and to improve our services and products. From time to time we may share the such aggregated information publically to show trends in the use of our Services provided that you are not identified; and
e) share that information if required with credit reference and debt collection agencies.
11.2 Personal Information: If you wish to enquire about what personal information we hold about you (if any), or you wish us to update, delete or correct any such personal information, please contact your Mooven Contact. We may charge you for the reasonable costs of retrieving and providing this information.
12.1 Safety and security: Each Party will meet the other's notified and reasonable safety and security requirements when on the other Party's premises. Each Party will also be responsible for complying with all applicable laws for maintaining safe premises, and in particular will comply with the Health and Safety At Work Act 2015 (and any successive health and safety legislation) and all regulations and codes of practice made under that Act.
12.2 Provision to your Related Companies: Where we agree, by the addition of a Related Companies Schedule to the Agreement, that any of your Related Companies may receive or use the Services provided under the Agreement, you acknowledge that your Related Companies do not obtain any direct right to enforce the Agreement against, or to recover any amount from, us. However, you may enforce that right against or recover those amounts from us on their behalf, to the extent that the right would otherwise be enforceable, or the amount recoverable, under the Agreement if it had been provided directly to you.
12.3 Supply by our Related Companies: Services may be provided to you by us, by any other divisions or by any of our Related Companies. Your covenants in this Agreement are given for the benefit of, and are enforceable in terms of the Contracts (Privity) Act 1982 by, those divisions and Related Companies. However, this Agreement may be varied by the parties to it without the approval of those divisions and Related Companies.
12.4 Subcontracting: We may subcontract any of our responsibilities, in which case we will remain liable to you for meeting all those responsibilities.
12.5 Resolving disputes: Both Parties will attempt to resolve any dispute relating to the Agreement at the lowest possible level of escalation, in accordance with the provisions of this clause.
If a dispute arises, either Party may serve on the other Party a notice setting out, in summary, the nature of the dispute ("Dispute Notice"). Representatives of the Parties will meet within 10 Business Days of the Dispute Notice to attempt to resolve the dispute. If the dispute is not resolved within that time period, the dispute may be referred by either Party to the senior management or executives of both Parties and both Parties will then seek to resolve the dispute within a further 10 Business Days. For the avoidance of doubt, nothing in this clause will prevent either Party from seeking urgent injunctive relief where damages alone would be an inadequate remedy.
12.6 Notices: Notices required under the Agreement must be in writing and sent to the relevant contact person at the address provided in the Mooven Agreement. If sent by post to that contact address, it will be assumed delivered 3 Business Days after it has been posted. If a notice is sent by email to that contact address, the notice will only be assumed delivered once a correct transmission confirmation slip or acknowledgement is received. Notifications concerning termination, breach or default of the Agreement may be sent by email and must be addressed to us as follows:
1 Rangitoto Avenue
Attention: Mooven CEO
with a copy to the Mooven contact provided in the Mooven Agreement.
12.7 Assignment: Mooven may assign its rights and responsibilities under the Agreement to a “related company” as that term is defined under the Companies Act 1993. You may not assign your rights or responsibilities under the Agreement without Mooven’s written consent, which will not be unreasonably withheld or delayed.
12.8 Changes to Services: You may request new or additional Services from us and any changes to your Order Form that we agree to provide as a result, will be agreed between the Parties in writing as a variation to your Order Form.
We may change these General Terms or any Order Form at any time. We will publish details of changes on our website at least 1 month before the change is to take effect. If you reasonably consider any change to our General Terms will have a material and detrimental effect on your commercial position, or in the case of any change to a Order Form that it will have a material and detrimental effect on the Services, you may advise us of the details of this in writing. In this case, we may allow you to:
a) in the case of changes to the General Terms: terminate the Agreement without becoming subject to the payment of any early termination Charges (if any) that may apply to that termination; and/or
b) in the case of changes to a Order Form, terminate the Services under that Order Form without becoming subject to the payment of early termination charges (if any) that may apply in relation to those Services.
12.9 Variations: Subject to clause 4.7 and 8.3 any variation to these General Terms must be recorded in writing and signed by the authorised representatives of both Parties.
12.10 Independent contractor: We provide our Services under the Agreement as an independent contractor. The Agreement does not create or evidence a legal partnership, employer/employee, principal/agent or joint venture relationship.
12.11 Governing law: The Agreement is governed by, and will be construed in accordance with, the laws of New Zealand. Both Parties submit to the non-exclusive jurisdiction of the New Zealand courts.
12.12 No waiver: No failure, delay or indulgence by either Party in exercising any power or right conferred on that Party by the Agreement will operate as a waiver of that power or right. A single exercise of any of those powers or rights does not preclude further exercises of those powers or rights or the exercise of any other powers or rights under the Agreement.
12.13 No responsibility for tax treatment: You acknowledge that you have not relied on any information from anyone at Mooven concerning the tax treatment of any payments under the Agreement, or any other matter relating to tax in relation to the Agreement, the Services, and that you are responsible for determining the correct tax treatment of these matters.
12.14 Invalidity: Any provision of the Agreement that is invalid or unenforceable will be deemed deleted from the Agreement and this invalidity will not affect the other provisions of the Agreement, all of which remain in full force and effect to the extent permitted by law, subject to any modifications made necessary by the deletion of the invalid or unenforceable provision.
12.15 Counterpart and facsimile copies: The Parties may sign counterpart copies of the Agreement, all of which when signed and taken together will constitute a single agreement between the Parties. Transmission by facsimile or email of a signed counterpart copy of the Agreement by one Party to the other will be deemed proof of signature of the original by such Party and the signed facsimile or emailed copy transmitted will be deemed an original.
12.16 Entire agreement: The Agreement constitutes the entire agreement between the Parties relating to the provision of Services by us to you, and supersedes and cancels any previous agreement, understanding or arrangement whether written or oral.
12.17 No reliance: Each Party:
a) acknowledges that it has made its own independent enquiry and investigations in relation to the subject matter of this Agreement and has entered into this Agreement solely in reliance on its own judgement, and has not relied and is not relying on any statement or representation (written or oral) made by or on behalf of any party, or any director, employee, representative or advisor of any party except to the extent that such a statement or representation is expressly recorded in this Agreement; and
b) agrees that (to the extent permitted by law) all implied representations or warranties of all other parties are excluded; and
c) unconditionally waives any right to commence any proceeding against any Party, or any director, employee, representative or advisor of any Party, directly or indirectly arising from any statement or representation not expressly recorded in this agreement and made or given in connection with the transaction recorded by this Agreement.
This clause is intended to be for the benefit of, and to be enforceable under the Contracts (Privity) Act 1982 by, any director, employee, representative or advisor of each Party. However, this Agreement may be varied by the parties to it without the approval of those divisions and Related Companies.
13. Definitions and interpretation
“Agreement” means our agreement to provide Services to you, as defined in the Mooven Agreement.
"Bill Rate" means in respect of any rate of interest to be calculated pursuant to this Agreement the mid or "FRA" rate for 90 day bank accepted bills (expressed as a percentage) as quoted on Reuters page BKBM (or any successor page) at or about 10.45 am on the first Business Day of the period in respect of which such rate of interest is to be calculated, and thereafter on each succeeding Business Day of the period.
“Business Days” means Monday to Friday inclusive, excluding national public holidays and the provincial anniversary day applicable to the affected customer site.
“Business Hours” means 9:00am to 5:00pm on Business Days.
“Confidential Information” regardless of the form of disclosure or the medium used to store it, means any information received by a Party relating to the other Party or its Related Companies, or their business (current and future), and includes information provided before the date of this Agreement and any copies of the above information or material derived from that information, any passwords or codes used to access online information maintained by us, and also includes the terms of this Agreement.
“Customer”, “you” or “your” means the customer as identified in the Agreement.
“Customer Data” means any dataset or other data you provide to Mooven for the purposes of Mooven providing the Services under the Agreement, including any modification or transformation of that dataset or data, but excluding any Mooven Data (including where Mooven Data is combined or transformed into or with that dataset or data). For the avoidance of doubt, Customer Data excludes any Customer Account Information collected from you in accordance with clause 11.
“Customer Material” means any Material, including Customer Data, which you, or your Related Companies, agents or subcontractors provide, or have provided, to Mooven for the purposes of the Agreement, excluding any Mooven Material.
“Fees” is defined in clause 4.1.
“Force Majeure Event” means anything outside the reasonable control of a Party, including acts of God, strikes by employees of a third party, acts or omissions (including laws, regulations, disapprovals or failures to approve) of any government or government agency and include:
a) unavoidable accident, explosion, public mains electrical supply failure, or nuclear accident;
b) sabotage, riot, civil disturbance, insurrection, epidemic, national emergency (whether in fact or law) or act of war (whether declared or not);
c) requirement or restriction of, or failure to act by, any government, semi-governmental or judicial entity; or
d) any other similar cause beyond the reasonable control of the Party concerned.
A Force Majeure Event does not include:
a) any event which the affected party could have avoided or overcome by exercising a standard of reasonable care at a reasonable cost;
b) a lack of funds for any reason or any other inability to pay; or
c) strike, lockout, work stoppage or other labour hindrance by employees of a Party or its Related Companies unless the strike is part of an industry wide campaign which does not arise out of a dispute between that Party or Related Company and its employees.
“General Terms” means these General Terms which apply to all Services which Mooven provides to you.
"Initial Term” means the initial term defined in each Order Form between Mooven (or any of our Related Companies) and you.
“Insolvent” means, in relation to a Party, that:
a) a Party is, becomes, or is deemed to be, insolvent or bankrupt and is incapable of performing its obligations;
b) a Party makes an assignment for the benefit of, or enters into or makes any arrangement or composition with, its creditors; or
c) a Party goes into receivership or has a receiver, trustee and manager (or either of them) (including a statutory manager) appointed in respect of all or any of its property;
d) any resolution is passed, or any order is made in a proceeding, for the winding up or liquidation of a Party; or
e) that Party directly or indirectly assigns or transfers, or attempts to assign or transfer, any obligation, liability or interest of that Party under the Agreement in breach of the Agreement,
and “Insolvency” has a corresponding meaning.
“Intellectual Property” means all intellectual property rights, including:
a) patents, designs, trademarks, service marks, copyright material, registered designs trade names, symbols and logos;
b) patent applications and applications to register trademarks, service marks and designs; and
c) all formulae, methods, plans, data, drawings, specifications, characteristics, algorithms, source and object code, equipment, designs, inventions, discoveries, improvements, know-how, experience, software products, trade secrets, price lists, costings, brochures and other information.
“Material” means data, information or instructions stored in any medium, and includes software, firmware, databases and any other forms of computer code and electronic data, as well as reports, manuals, specifications, plans, layouts, schema, formulae, diagrams, video recordings, audio recordings, photographs, drawings and other images.
“Party” means Mooven or the Customer, or both Mooven and the Customer, as the context requires.
“Pre Existing IP has the meaning given to it in clause 6.1;
“Privacy Commitments” means the Mooven Privacy Commitments published on the Mooven website and which may be updated by Mooven from time to time on notice to Customer.
“Mooven Portal” means the Mooven Portal website that is used to deliver Mooven services to customers;
“Production Release” means
“Mooven” “we”, “us” or “our” means Mooven.
“Mooven Agreement” means the written agreement named “Mooven Agreement” which contains the key details of our relationship and which has been signed by Mooven and you.
“Mooven Group” means Mooven and every Related Company of Mooven, all officers, employees, agents and contractors of any of those companies, and everyone else any of
“Mooven Data” means any dataset or other data Mooven provides to you for the purposes of Mooven providing the Services under the Agreement, including any modification or transformation of that dataset or data.
“Mooven Material” means any Material, including Mooven Data, which Mooven, or its Related Companies, agents or subcontractors provides, or has provided, to you for the purposes of the Agreement, excluding any part of that Material which is Customer Material.
“Mooven Service Pricing Guidelines” means a master pricing document maintained by Mooven, containing the default rate card for engagements
“Order Form” means any Order Form signed by Mooven (or any of our Related Companies) and you which describe the Services we will provide to you under this Agreement.
“Related Company” has the meaning given in the Companies Act 1993 read as if the expression includes any body corporate and any company incorporated under the law of any jurisdiction, and for the purposes of defining your Related Companies.
“Services” means all services which are supplied by us (or any of our Related Companies) to you (or any of your Related Companies) under this Agreement, and includes all deliverables, products, Software, reports, data, information, content, work products, and services (including outcomes Mooven is required to provide as a result of those services), to be provided by Mooven to you under a Service Schedule or Order Form.
“Service Level Agreement” means any Service Level Agreement signed by Mooven (or any of our Related Companies) and you which describe the Service Levels for the Services we will provide to you.
“Service Levels” means the service levels or targets expressly identified in the Agreement (if any) which are, unless expressly stated otherwise in the Agreement, targets which we will use all reasonable endeavours to ensure, but do not guarantee, will be achieved.
"Software" means all system software, application software, software tools and software utilities which are supplied by us (or any of our Related Companies) to you (or any of your Related Companies) and includes software described in any Schedule and any software provided as part of the Mooven Portal or Service.
“Third Party Software” means Software specifically identified in a Service Schedule and/or Order Form as “Third party Software”, or as otherwise notified to you.
“Third Party Licence Terms” means the licence terms for Third Party Software, as referred to in a Service Schedule and/or Order Form, or as otherwise notified to you.
In the Agreement, unless the context otherwise requires:
a) headings are for convenience only and do not affect interpretation;
b) the singular includes the plural and vice versa;
c) unless otherwise stated, all references to dollars, value and price are to the New Zealand currency and exclude goods and services tax;
d) a reference to any statute includes any amendments, re-enactments or replacements to that statute from time to time; and
e) the use of the words "includes" or "including" is not to be taken as implying any form of limitation.