These Terms were last updated on 06 September 2024.
1. Application of Terms
1.1 These terms and conditions (Terms), together with the Privacy Policy, form a contract between Moddle Limited (Moddle, we, us, our) and our customer (Customer, you, your) and govern your use of the Platform. By registering for an Account and clicking the "I agree" checkbox, you agree to be bound by these Terms.
1.2 If you do not agree to these Terms, you are not authorised to access and use the Platform and you must immediately stop doing so.
2. Changes
2.1 In order to ensure that Moddle is the best it can be, we regularly enhance and expand our Platform.
2.2 Subject to clause 2.4:
(a) we may change these Terms at any time notifying you of the change by email or by posting a notice on the Site; and
(b) unless stated otherwise, any change takes effect from the date set out in the notice.
2.3 You are responsible for ensuring you are familiar with the latest Terms.
2.4 If a change to these Terms is detrimental to you, you may terminate these Terms and your right to access and use the Platform on no less than seven days' notice, provided the notice is received by us before the date that the change takes effect. If you give notice under this clause 2.4, the previous version of the Terms will continue to apply to your access to and use of the Platform during the notice period.
2.5 If you do not exercise your termination right under this clause, and you continue to access and use the Platform from the date on which the Terms are changed, you agree to be bound by the changed Terms.
3. Interpretation
Where you see a word in bold, that term will have the same meaning every time it is used within these Terms.
In these Terms:
Account has the meaning given to it in clause 5.1;
Analytical Data has the meaning given to it in clause 7.3(a)(i);
Authorised Payment Method has the meaning given to it in clause 8.3;
Confidential Information of a party means any information that is not public knowledge and that is obtained from that party in the course of, or in connection with, the provision and use of the Platform and in relation to (a) Moddle includes Intellectual Property owned by or licensed to us, including the Software, and (b) the Customer includes Your Data;
Download Fees means fees payable to download software from the Platform, details of which may be communicated to you in writing by us from time to time;
Feedback has the meaning given to it in clause 9.4;
Fees means any and all applicable fees payable in relation to the Platform, including without limitation Subscription Fees and/or Download Fees, as such fees may be updated from time to time in accordance with clause 8.6;
Force Majeure means an event that is beyond the reasonable control of a party, excluding:
(a) an event, circumstance or delay in performance to the extent that it could have been avoidedby a party taking reasonable steps or reasonable care; or
(b) a lack of funds for any reason;
Intellectual Property Rights includes copyright and all rights existing anywhere in the world conferred under statute, common law or equity relating to inventions (including patents), registered and unregistered trade marks and designs, circuit layouts, data and databases, confidential information, know-how, and all other rights resulting from intellectual activity. Intellectual Property has a consistent meaning, and includes any enhancement, modification or derivative work of the Intellectual Property Rights;
Objectionable includes being objectionable, defamatory, obscene, harassing, threatening, harmful or unlawful in any way;
Permitted Purpose has the meaning given to it under clause 10.1(b);
Personal Information means information about an identifiable individual as defined under New Zealand's Privacy Act 2020;
Platform means the preliminary engineering design specifications and quantity surveying estimates for commercial construction projects platform which is made available on a SaaS basis on the Site and which has the core functionality described on the Site, as updated from time to time;
Privacy Policy means Moddle's privacy policy, as amended from time to time, and located at https://www.moddle.co.nz/privacy-policy ;
Representative has the meaning given to it under clause 10.3;
Site means any and all online facilities made available by Moddle for you to access the Platform, including via Android or iOS app, the website accessible at https://www.moddle.co.nz/ or any other URL address notified to you by Moddle from time to time;
Software means the software owned by us (and/or our licensors, as applicable) and which is used to provide the Platform;
Start Date means the date that you set up an Account;
Subscription Fees means the monthly subscription fees payable for your access and use of the Platform (excluding applicable GST, VAT, sales or other taxes) in accordance with the Subscription Plan, details of which are set out on the pricing page on the Site;
Subscription Plan means the applicable subscription plan which is made available to you from time to time by Moddle for the use of the Platform;
Underlying Systems means the Software, IT solutions, systems and networks (including software and hardware) used to provide and maintain the Platform, including any third party solutions, systems and networks; and
Your Data means all data, content and information (including Personal Information) owned, held or used or created by you or on your behalf that is stored using, or inputted into, the Platform.
4. Provision of the Platform
4.1 We will use reasonable efforts to provide the Platform:
(a) in accordance with these Terms and New Zealand law;
(b) using reasonable care, skill and diligence; and
(c) using suitably skilled, experienced and qualified personnel.
4.2 Our provision of the Platform is non-exclusive. Nothing in these Terms prevents us from providing the Platform to any other person.
4.3 We will use reasonable efforts to maintain the availability of the Platform, however it is possible on occasion that the Platform may be unavailable to permit maintenance or other development activity to take place, or in the event of Force Majeure. We will use reasonable efforts to publish on the Site advance notice of any unavailability.
4.4 Through the use of web services and APIs, the Platform inter-operates with a range of third-party service features. We do not make any warranty or representation on the availability of those features. Notwithstanding this, if a third-party feature provider ceases to provide that feature or ceases to make that feature available on reasonable terms, we may cease to make available that feature to you. To avoid doubt, if we exercise our right to cease the availability of a third party feature, you are not entitled to any refund, discount or other compensation.
5. Account registration
5.1 To access the Platform, you must register with Moddle to create an account with us (Account). To complete your Account registration, you will be required to provide us with certain information including your first name, last name and email address as well as other information as indicated during the sign-up process. We may reject your application for an Account, or cancel an existing Account, for any reason and at our sole discretion.
5.2 The person in whose legal name an Account is created will be the contracting party for the purposes of these Terms and will be the person who is authorised to use any corresponding Account we may provide to you in connection with the Platform. Any person signing up for the Platform on behalf of their employer must use an employer-issued email address and represents and warrants that they have the authority to bind their employer to these Terms.
5.3 You warrant that all information provided by you on sign-up in connection with the creation of your Account is true, complete and accurate and that you will promptly inform us of any change to such information by updating the information in your Account.
5.4 You acknowledge and agree that you are responsible for any breach of these Terms by your personnel, employees, agents, representatives or subcontractors, and that any act or omission of any of the above relating to the use of the Platform will be treated as your act or omission, such that Moddle may terminate any authority you have granted to any of them if Moddle considers that they are in breach of these Terms or cause you to be in breach of these Terms.
5.5 You will:
(a) keep secure and confidential all login credentials for your access and use of the Platform;
(b) promptly disable your Account, or enable Moddle to do so, if you or Moddle discover than any login credentials have been provided to any unauthorised third party;
(c) allow Moddle at any time to audit your use of the Platform in order to establish whether such use is in accordance with these Terms; and
(d) on demand, pay to Moddle an amount of any underpayment of Fees discovered by Moddle through undertaking one or more audits referred to in clause 5.5(c).
6. Your obligations
6.1 You and your personnel must:
(a) use the Platform in accordance with these Terms solely for:
(b) not resell or make available the Platform to any third party, or otherwise commercially exploit the Platform.
6.2 When accessing the Platform, you and your personnel must:
(a) not impersonate another person or misrepresent authorisation to act on behalf of others or us;
(b) correctly identify the sender of all electronic transmissions;
(c) not attempt to undermine the security or integrity of the Underlying Systems;
(d) not use, or misuse, the Platform in any which may impair the functionality of the Underlying Systems or impair the ability of any other user to use the Platform;
(e) not attempt to view, access or copy any material or data other than:
6.3 You are responsible for procuring all licenses, authorisations and consents required for you and your personnel to use the Platform, including to use, store and input Your Data into, and process and distribute Your Data, through the Platform.
7. Your Data
7.1 You acknowledge that:
(a) we may require access to the Data to exercise our rights and perform our obligations under these Terms; and
(b) to the extent that this is necessary but subject to clause 10, we may authorise a member or members of our personnel to access the Data for this purpose, provided that any such access shall at all times be compliant with all applicable laws and (to the extent that Your Data comprises Personal Information) consistent with our Privacy Policy.
7.2 You must arrange all consents and approvals that are necessary for us to access Your Data as described in clause 7.1.
7.3 You acknowledge and agree that:
(a) we may:
(b) our rights under clauses 7.3(a)(ii) and 7.3(a)(iii) will survive termination or expiry of these Terms; and
(c) title to, and all Intellectual Property Rights in, Analytical Data is and remains our property.
7.4 You acknowledge that and agree that to the extent Your Data contains any Personal Information, in collecting, holding and processing that information as part of the Platform, we are acting as your agent for the purposes of the Privacy Act 2020 and any other applicable law. You must obtain all necessary consents from the relevant individual to enable us to collect, use and process that information in accordance with these Terms.
7.5 While we take standard industry measures to back up all of Your Data stored using the Platform, you agree to keep a separate back-up copy of all Data uploaded by you onto the Platform.
7.6 You acknowledge that we store most of Your Data (which contains Personal Information) electronically in facilities in New Zealand or overseas that we manage and/or that are managed by third parties (such as Google Drive) on our behalf.
7.7 You indemnify us against any liability, claim, proceeding, cost, expense (including the actual fees charged by our solicitors) and loss of any kind arising from any actual or alleged claim by a third party that any of Your Data infringes the rights of that third party (including Intellectual Property Rights and privacy rights) or that Your Data is Objectionable, incorrect or misleading.
8. Fees
8.1 You must pay us all Fees applicable to your use of the Platform in accordance with this clause 8. Unless otherwise indicated, all Fees and other charges are in New Zealand dollars, and all payments will be made in New Zealand dollars.
8.2 All Fees will be invoiced and payable upfront. We will provide you with valid GST tax invoices on the date of successful payment.
8.3 You must keep a valid payment method on file with us to pay for all incurred and recurring Fees. We will charge applicable Fees to any valid payment method that you authorise (Authorised Payment Method) and we will continue to charge the Authorised Payment Method for applicable Fees until your Subscription Plan expires or is terminated and any and all outstanding Fees have been paid in full.
8.4 If we are not able to process payment of any Fees using your Authorised Payment Method, we may make subsequent attempts to process payment using another Authorised Payment Method. If we are unable to successfully process payment of Fees using an Authorised Payment Method within 14 days of our initial attempt, we may suspend and revoke your access to the Platform. Your Account will be reactivated upon your payment of any outstanding Fees, plus the Fees applicable to your next billing cycle. You may not be able to access the Platform during any period of unsuccessful payment of Fees. If the outstanding Fees remain unpaid for 30 days following the date of suspension, Moddle reserves the right to terminate your Account and your access to the Platform.
8.5 We may charge interest on overdue amounts. Interest will be calculated from the due date to the date of payment (both inclusive) at an annual percentage rate equal to the corporate overdraft reference rate (monthly charging cycle) applied by our primary trading bank as at the due date (or, if our primary trading bank ceases to quote that rate, then the rate which in the opinion of the bank is equivalent to that rate in respect of similar overdraft accommodation expressed as a percentage) plus 2% per annum.
8.6 We may increase the Fees with effect from the start of the next annual billing cycle by giving at least 30 days' prior written notice. If you do not wish to pay the increased Fees, you may terminate these Terms and your right to access and use the Platform on no less than 7 days' notice, provided the notice is received by us before the effective date of the Fee increase. If you do not terminate these Terms and your right to access and use the Platform in accordance with this clause, you are deemed to have accepted the increased Fees.
9. Intellectual Property
9.1 Subject to clause 9.2, title to, and all Intellectual Property Rights in the Platform, the Site and all Underlying Systems is and remains our property and/or that of our licensor(s) (as applicable).
9.2 Title to, and all Intellectual Property Rights in, Your Data remains your property. You grant us a worldwide, non exclusive, fully paid up, irrevocable, license to us, store, copy, modify, make available and communicate Your Data for any purpose in connection with the exercise of your rights and performance of our obligations in accordance with these Terms.
9.3 To the extent not owned by us, you grant us a royalty-free, transferable, irrevocable and perpetual license to use for our own business purposes any know-how, techniques, ideas, methodologies and similar Intellectual Property used by us in the provision of the Platform.
9.4 In the situation where you provide us with ideas, comments or suggestions relating to the Platform or Underlying Systems (together, the Feedback);
(a) all Intellectual Property Rights in that Feedback, and anything created as a result of that Feedback (including new material, enhancements, modifications or derivative works) are solely owned by us; and
(b) we may use or disclose the Feedback for any purpose.
9.5 You acknowledge that the Platform may link to third party websites or feeds that are connected or relevant to the Platform. Any link from the Platform does not imply that we endorse, approve, or recommend, or have responsibility for, those websites or feeds or their content or operators. To the maximum extent permitted by law, we exclude all responsibility or liability for those websites or feeds.
10. Confidentiality
10.1 Each party will keep the other party’s Confidential Information confidential and will not:
(a) use any of the other party’s Confidential Information except for the purpose of exercising or performing its rights and obligations under these Terms; or
(b) disclose any of the other party’s Confidential Information in whole or in part to any third party, except as expressly permitted by these Terms (Permitted Purpose).
10.2 The obligations of confidentiality in clause 10.1 do not apply to any disclosure or use of Confidential Information where such Confidential Information:
(a) is or becomes publicly available through no fault of the recipient of the Confidential Information or its personnel;
(b) was rightfully received by a party from a third party without restriction and without breach of any obligation of confidentiality;
(c) was disclosed or used by us if required as part of a bona fide sale of our business (whether by way of an asset or share sale and whether in whole or in part) to a third party, if we enter into confidentiality agreement with the third party on terms no less restrictive than this clause; or
(d) the parties agree in writing is not confidential or may be disclosed.
10.3 A party may disclose the other party’s Confidential Information to those of its officers, employees, contractors or professional advisors (Representatives) who need to know that Confidential Information for the Permitted Purpose, provided that:
(a) it informs those Representatives of the confidential nature of the Confidential Information before disclosure; and
(b) at all times, it is responsible for the Representatives’ compliance with the confidentiality obligations set out in this clause 10.
10.4 A party may disclose Confidential Information to the extent required by law, by any governmental or other regulatory authority, or by a court or other authority of competent jurisdiction provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of the disclosure as possible.
10.5 Each party will on demand and, in any event, on termination of these Terms, deliver to the other party all Confidential Information and any other document supplied by or obtained from the other party.
10.6 This clause 10 will survive termination of these Terms.
11. Warranties
11.1 Each party warrants that it has the full power and authority to enter into, and perform its obligations, under these Terms.
11.2 To the maximum extent permitted by law;
(a) our warranties are limited to those set out in these Terms, and all other conditions, guarantees or warranties whether expressed or implied by statute or otherwise (including any warranty under Part 3 of the Contract and Commercial Law Act 2017) are expressly excluded, and to the extent that they cannot be excluded, liability for them is limited in aggregate under clause 12.1; and
(b) we make no representation concerning the quality of the Platform and do not promise that the Platform will:
11.3 You agree and represent that you are accessing the Platform, and accepting these Terms, for the purpose of trade. The parties agree that:
(a) to the maximum extent permissible by law, the Consumer Guarantees Act 1993 and any other applicable consumer protection legislation does not apply to the supply of the Platform or these Terms; and
(b) it is fair and reasonable that the parties are bound by this clause 11.3.
11.4 Where legislation or rule of law implies into these Terms a condition or warranty that cannot be excluded or modified by this contract, the condition or warranty is deemed to be included in these Terms. However, our liability for any breach of that condition or warranty is limited, at our option, to:
(a) resupplying services using the Platform; and/or
(b) paying the costs of having those services accessible from the Platform supplied again.
11.5 You acknowledge and agree that you shall satisfy yourself as to the quality, accuracy, completeness, usefulness and reliability of the Platform and the results generated through your use of the Platform, and that your access to the Platform shall be at your sole risk and expense. In particular, you acknowledge and agree that the outputs from the Platform (including any specifications and/or estimates) are preliminary in nature only and will need to be reviewed and confirmed by a chartered engineer before being used in a live project.
12. Liability
12.1 Our maximum aggregate liability under or in connection with these Terms or relating to the Platform, whether in contract, tort (including negligence), breach of statutory duty or otherwise, must not exceed in any year an amount equal to the Fees paid by you in the 12 month period immediately preceding the first event giving rise to liability).
12.2 Neither party is liable to the other under or in connection with these Terms or the Platform for any:
(a) loss of profits, revenue, savings, business, use, data (including Your Data) and/or goodwill; or
(b) consequential, indirect, incidental or special damage or loss of any kind.
12.3 Clause 12.1 does not apply to limit our liability or your liability in connection with these Terms for:
(a) personal injury or death;
(b) fraud or wilful misconduct; or
(c) a breach of clause 10 .
12.4 Clause 12.2 does not apply to limit your liability:
(a) to pay the Fees;
(b) under the indemnity in clause 7.7; or
(c) for those matters stated in clause 12.3(a) to 12.3(c).
12.5 Neither party will be responsible, liable, or held to be in breach of these Terms for any failure to perform its obligations under these Terms or otherwise, to the extent that the failure is caused by the other party failing to comply with its obligations under these Terms, or by the negligence or misconduct of the other party or its personnel.
12.6 Each party must take reasonable steps to mitigate any loss or damage, cost or expense it may suffer or incur arising out of anything done or not done by the other party under or in connection with these Terms of the Platform.
13. Term, termination and suspension
13.1 Unless terminated under this clause, these Terms and your right to access and use the Platform:
(a) start on the Start Date; and
(b) continues until a party gives at least 30 days' notice that these Terms and your access to and use of the Platform will terminate on the expiry of that notice.
13.2 Either party may, by notice to the other party, immediately terminate these Terms and your right to access and use the Platform if the other party:
(a) breaches any material provision of these Terms and the breach is not:
(b) becomes insolvent, liquidated or bankrupt, has an administrator, receiver, liquidator, statutory manager, mortgagee's or chargee's agent appointed, becomes subject to any form of insolvency action or external administration, or ceases to continue business for any reason.
13.3 You may terminate these Terms and your right to access and use the Platform in accordance with clauses 2.4 and 8.6.
13.4 Termination of these Terms does not affect either party's rights and obligations that accrued before that termination.
13.5 On termination of these Terms, you must pay the Fees for the provision of the Platform prior to that termination on a prorated basis for each day up to and including the date of termination to the extent that you have not paid for access and use of the Platform on those days.
13.6 No compensation is payable by us to you as a result of termination of these Terms for whatever reason, and you will not be entitled to a refund of any Fees that you have already been paid.
13.7 Except to the extent that a party has ongoing rights to use Confidential Information, at the other party's request following termination of these Terms but subject to clause 13.8, a party must promptly return to the other party or destroy all Confidential Information of the other party that is in the first party's possession or control.
13.8 At any time prior to one month after the date of termination, you may request:
(a) a copy of any of Your Data stored using the Platform, provided that you pay our reasonable costs of providing that copy. On receipt of that request, we must provide a copy of Your Data in a common electronic form. We do not warrant that the format of the Data will be compatible with any software; and/or
(b) deletion of Your Data stored using the Platform, in which case we must use reasonable efforts to promptly delete Your Data.
To avoid doubt, we are not required to comply with clause 13.9(c) to the extent that you have previously requested deletion of Your Data.
13.9 Without limiting any other right or remedy available to us, we may restrict or suspend your access to and use of the Platform and/or delete, edit or remove Your Data where relevant if we consider that you or any of your personnel have:
(a) undermined, or attempted to undermine, the security or integrity of the Platform or any Underlying Systems;
(b) used, or attempted to use, the Platform:
(c) transmitted, inputted or stored any of Your Data that breaches or may breach these Terms or any third party right (including Intellectual Property Rights and privacy rights), or that is or may be Objectionable, incorrect or misleading; or
(d) otherwise materially breached these Terms.
14. General
14.1 Neither party is liable to the other for any failure to perform its obligations under these Terms tothe extent caused by Force Majeure.
14.2 No person other than you and us has any right to a benefit under, or to enforce, these Terms.
14.3 For us to waive a right under these Terms, that waiver must be in writing and signed by us. Subject to clause 2, any variation to these Terms must be in writing and signed by both parties.
14.4 Subject to clause 7.4, we are an independent provider of services to you and no other relationship (e.g. joint venture, agency, trust or partnership) exists under these Terms.
14.5 If we need to contact you, we may do so by email or by posting a notice on the Site. You agree that this satisfies all legal requirements in relation to written communications. You may give notice to us under or in connection with these Terms by emailing info@moddle.co.nz.
14.6 Clauses which, by their nature, are intended to survive termination of these Terms, including clauses 7.7, 9, 10, 12, 13.4 to 13.8 and 14.6, continue in force.
14.7 If any part or provision of these Terms is or becomes illegal, unenforceable, or invalid, that part or provision is deemed to be modified to the extent required to remedy the illegality, unenforceability or invalidity. If modification is not possible, the part or provision must be treated for all purposes as severed from these Terms. The remainder of these Terms will be binding on you.
14.8 These Terms set out everything agreed by the parties relating to the Platform and supersede and cancel anything discussed, exchanged or agreed prior to the Start Date. The parties have not relied on any representation, warranty or agreement relating to the Platform that is not expressly set out in these Terms, and no such representation, warranty or agreement has any effect from the Start Date. Without limiting the previous sentence, the parties agree to contract out of sections 9, 12A and 13 of the Fair Trading Act 1986, and that it is fair and reasonable that the parties are bound by this clause 14.8.
14.9 You may not assign, novate, subcontract or transfer any right or obligation under these Terms without our prior written consent, that consent not to be unreasonably withheld. You remain liable for your obligations under these Terms despite any approved assignment, subcontracting or transfer.
14.10 These Terms, and any dispute relating to these Terms or the Platform, are governed by and must be interpreted in accordance with the laws of New Zealand. Each party submits to the non-exclusive jurisdiction of the Courts of New Zealand in relation to any dispute connected with these Terms or the Platform.
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