Master Services Agreement

1. Definitions
    1.1 "Agreement" means this agreement and all documents identified as forming part of it;
    1.2 "We", “our” and "us" means Modica Group Limited, and "you" and “your” means the Client;
    1.3 Modica Group Limited and the Client may each be referred to herein as a "Party" and collectively as the "Parties".
    1.4 “Business Day" means any day of the week except Saturday, Sunday or a national public holiday recognised in New Zealand;
    1.5 “Charges" means the Charges set out in the Service Schedule(s);
    1.6 "Confidential Information" means all information in any form relating to a party (the Owner) which becomes known to the other party (the Recipient) as a result of the course of dealings between them including any non-public, commercially sensitive or secret information relating to the Owner's business, data, trade secrets, operations, customers, service providers, stakeholders, activities, planning, products, services, research and development and the contents of this Agreement;
    1.7 "Excusable Event" means circumstances to the extent that they are beyond the reasonable control of the relevant party including act of God; explosions; Government expropriation or prohibition; strikes; lockouts; industrial disputes; but not including any event or circumstance that could have been avoided by the exercise, by the affected party, of business continuity or other practices in accordance with usual good industry practice
    1.8 “Existing Material” means all documentation, software and other materials used or incorporated in the Deliverables or Improvements that are:
    1.8.1 owned by, or licensed to, either party prior to the commencement date under the relevant Service Schedule; or
    1.8.2 developed independently from this Agreement by either party;
    1.9 "GST" means goods and services tax pursuant to the Goods and Services Tax Act 1985;
    1.10 "Intellectual Property Rights" means copyright, all rights in relation to inventions (including patents), registered and unregistered trade marks, registered and unregistered designs, circuit layouts, and all other rights anywhere in the world resulting from intellectual activity in the commercial, industrial, scientific, literary or artistic fields, and includes without limit, all rights in or to business methodologies, templates and software;
    1.11 “Improvement” means any improvement, addition, modification, development or amendment by us to the Deliverables, or based on the Deliverables, including, without limitation, patentable inventions and unpatentable know-how;
    1.12 “Mobile Network Provider” means the wireless telecommunications provider(s) that Modica connects to;
    1.13 "Service Commencement Date" means the date on which the Services listed in a Service Schedule start to be supplied;
    1.14 "Services" means those services identified as such under a Service Schedule;
    1.15 "Subscription Data" means the data you supplied to us when requesting us to supply Services;
    1.16 “Deliverables” means any and all software, code, documentation, or material created or arising during the performance of the Services;
    1.17 Reference to Modica Group and to the Client in this Agreement shall include each party’s successors and permitted assigns.
2. Services
    2.1 Appointment: The Client has appointed Modica Group and Modica Group have agreed to provide the Services on the terms of this Agreement.
    2.2 Care and Skill: We will provide the Services with the care and skill expected of a professional provider of such services. Unless otherwise expressly specified in the relevant Schedule we will use all reasonable efforts to meet any dates or timeframes for performance of the Services specified in the relevant Service Schedule.
3. Client Obligations
    3.1 Provide Sufficient Information: You must ensure that sufficient information is given to us to enable us to comply with our obligations under this Agreement. We will not be liable for any failure or deficiency in the Services arising because information provided by you is materially incorrect or because you have failed to provide sufficient information as required by you under the relevant Service Schedule;
    3.2 Provide Accurate Information: You agree to (a) provide true, accurate, current and complete information about yourself as prompted by the Service's subscription form ("Subscription Data"); and (b) promptly update the Subscription Data to keep it true, accurate, current and complete.  If you provide any information that is untrue, inaccurate, not current or incomplete, or Modica has reasonable grounds to suspect this, we have the right to suspend or terminate your account and refuse any and all current or future use of the Service (or any portion thereof), including any transition rights;
    3.3 You may be issued with usernames or account designations and passwords upon completing the Service's subscription process.  You are responsible for maintaining their confidentiality, and for all activities that occur under your password or account.  You agree to (a) immediately notify Modica of any unauthorized use of your password or account or any other breach of security, and (if applicable) (b)  exit from your account at the end of each session.  Modica, and its suppliers, cannot and will not be liable for any loss or damage arising from your failure to comply with this Section 3.3.  
    3.4 Obtain Third Party Licences: You shall obtain at your own cost, any third party licences required to enable us to use your Existing Material supplied to us for the purposes specified under this Agreement;
    3.5 Acceptable Use Policy: You must comply with all provisions of our acceptable use policy as published at relating to the Service, and as may be changed by us from time to time.
4. Flexibility for Services Delivery
    4.1 Alterations to Services: The parties may change the Services to be supplied under this Agreement only by written agreement.
    4.2 Make Unavailable: We may suspend Services where:
        4.2.1 you are in breach of this Agreement or;
        4.2.2 if we become aware that any information communicated by you through the Services is unlawful or in breach of any person's rights, or;
        4.2.3 we no longer have adequate rights, or your actions jeopardise our rights, from a supplier, or;
        4.2.4 we need to carry out any maintenance determined by us to be necessary from time to time, or;
        4.2.5 we are required to do so as a result of a direction from any government, law enforcement or other authorities.  
        We will make all reasonable efforts to consult with you in advance of any suspension of service.
    4.3 Responsibility: We are not responsible for any changes, failures or interruptions to the Services made or caused by anyone other than us or our employees, subcontractors or agents.
5. Payment
    5.1 Charges: The charges for the Services and the manner of payment will be as described in the relevant Service Schedule for those Services. Charges shall be paid by the due date stated on the invoice.  All Charges are listed exclusive of applicable taxes
    5.2 Taxes: You must pay GST and any other taxes, duties, imposts, levies or government charges (but not Modica Group's income tax) relating to the supply of the Services under this Agreement.
    5.3 Suspensions: If charges have not been paid as required in the Service Schedule(s) (other than pursuant to a dispute under clause 5.4), Modica Group may, after giving the Client five days written notice, or such notice as is stated in the relevant Service Schedule(s), suspend all or part of the Services until the charges are paid.
    5.4 Disputes: If you have a genuine dispute in relation to amounts we have charged you, you must pay the undisputed charges and notify us immediately you become aware of any disputed charges. Both parties will then follow the Dispute Resolution Procedure as defined in Clause 12 of this Agreement.
    5.5 Costs of Collection: In the event that our invoice remains unpaid after the due date stated on the invoice, Modica Group reserves the right to charge interest on overdue amounts at 15% per annum and to charge you any costs of collection incurred by us in the course of recovery of the debt.
    5.6  Changes to Charges: We may review the charges for your Services by notice in writing to You. If you do not agree to pay any reviewed Charges, you may, within twenty (20) days of receiving that written notification from us, notify us in writing that you do not accept the reviewed Charges and terminate the Agreement. If you do not terminate the Agreement and You continue to use the Services after thirty (30) days from our initial notification, You agree that You are deemed to have consented to the reviewed Charges.
    5.7  Records: Records held and logging procedures adopted by Us in relation to usage by or provision of Services to You are prima facie evidence that you have used or ordered that product or service as indicated.
6. Intellectual Property Rights:
    6.1 Existing Intellectual Property: Despite any other provision of this clause 6 to the contrary, each Party or its third party licensors retains ownership of all Intellectual Property Rights in Existing Material belonging to that Party or its third party licensors.
    6.2 Grant of Intellectual Property Rights in Existing Client Material: If any Deliverables or Improvements incorporate or rely on any Existing Material supplied by you, you hereby grant to us a royalty-free, non-exclusive, non-transferable, non-sub-licensable licence to use such Existing Material solely to the extent necessary to perform the Services to which the Existing Material relates.
    6.3 New Intellectual Property: All new Intellectual Property, or modifications, adaptations and additions to Pre-existing Intellectual Property ("New Intellectual Property"), developed by us and contained in the Services and Deliverables will be owned exclusively by Modica Group and we hereby grant or will obtain for you to you an irrevocable, royalty-free, non-exclusive, transferable, sub-licensable, worldwide and perpetual licence to use such Existing Material, and all Intellectual Property Rights in or to such Existing Material, for the purpose of using or commercially exploiting the Deliverables or Improvements (as the case may be).
    6.4 No Competition: We undertake that we will not utilise any of the new Intellectual property developed by us and contained in the Services and Deliverables to deliver a solution to a client operating a materially similar service or in a materially similar industry for a period of 18 months from the signing of this agreement, without your express written agreement.
    6.5 Disclose: We will promptly disclose to you full details of the Deliverables upon their creation, together with full details of any Improvements.
    6.6 Further actions: Both Parties will ensure that their employees, agents and sub-contractors will (at their expense) execute all documents, give such assistance and do all other acts and things as may be necessary or desirable to implement and carry out their obligations under this clause 6.
    6.7 Indemnity:
        6.7.1 Each party (“first party”) indemnifies the other party against all liability costs and expenses suffered or incurred by the other party as a result of any claim or threatened claim that any material provided the first party under this Agreement infringes the Intellectual Property Rights or other rights of any person.
        6.7.2 Each party will promptly notify the other party in writing upon becoming aware of any such claim or threatened claim.
        6.7.3 The first party will control the conduct of any such claim or threatened claim and all negotiations for its settlement or compromise. The first party will consult with the other party and keep the other party reasonably informed of such matters.
        6.7.4 The other party will co-operate with the first party in defending or settling any claim or threatened claim under this clause 6.7.
        6.7.5 No indemnity is given under this clause 6.7 to the extent the claim or threatened claim arises as a result of Existing Material provided by the other party or material provided under a separate third party licence under clause 6.2.

7. Term and Termination
    7.1 Term: This Agreement starts on the date that it has been signed by both parties and will continue until terminated in accordance with Clause 7.2 of this agreement. The Term of each Service Schedule will commence on the date of commencement specified in the Service Schedule, and will continue in full force and effect until the end of any fixed term specified in the Service Schedule. If no fixed term is specified then (unless terminated earlier as provided below) that Service Schedule will terminate once the Services under it have been completed.
    7.2 Termination:
        7.2.1 Any Service Schedule to this agreement may only be terminated within the Term stated in the Service Schedule by mutual agreement;
        7.2.2 After the expiry of the initial term of a Service Schedule, that Service Schedule may be terminated by either party with 90 days written notice.
        7.2.3 If the Agreement is terminated, all Service Schedules will be deemed to have terminated on the same date as termination of the Agreement.
    7.3 Termination for Breach: If either party breaches a material term of this Agreement, and fails to remedy the breach within ten Business Days of receiving written notice from the other to remedy the breach, the party giving notice may terminate this Agreement on written notice.
    7.4 Termination for Non-Payment: In the event that we suspend all or part of the Services in accordance with clause 5.3, we may terminate this Agreement by giving you ten Business Days’ written notice.
    7.5 Termination for Convenience:
        7.5.1 In the event we are no longer delivering any Services to you for whatever reason, we may terminate this Agreement immediately.
        7.5.2  You may terminate this Agreement immediately by notice in writing following written notification of a material modification to this Agreement over which agreement can not be reached.
    7.6 Termination for Insolvency: Either party may terminate this Agreement immediately where the other:
        7.6.1 Enters into receivership or liquidation (other than for legitimate purposes of reorganisation); or
        7.6.2 Enters an arrangement with its creditors and is unable to reasonably satisfy the other of its ability to continue to perform its material obligations under this Agreement.
8. Consequences of Termination/Expiry
    8.1 Return of each other’s property: Upon termination or expiry of this Agreement each party will return all of the other party’s property in its possession including any Confidential Information of the other party or materials containing such Confidential Information. For the avoidance of doubt we are entitled to retain a complete copy of all Deliverables solely for archival and legal compliance purposes.
    8.2 All charges become payable and obligations survive: When this Agreement is terminated or expires, all charges for Services actually performed (whether invoiced or not) become payable immediately and all rights or obligations arising before this Agreement ended will continue to be enforceable. The following clauses shall survive the termination or expiry of this Agreement: clause 5, clause 6, clause 8, clause 9, and clause 13.
    8.3  Early Termination: In the event that this Agreement is terminated within an initial period stated on a Service Schedule, all monthly Charges and direct costs associated with that Service for the remainder of the Initial Period shall become immediately payable.

9. Confidentiality
    9.1 Information to be Confidential: Each party agrees to keep confidential all Confidential Information and agrees not to use the Confidential Information of the other party other than in accordance with this Agreement, except:
        9.1.1 Required by Law: as required by law;
        9.1.2 Authorised or necessary to give effect to agreement: as authorised in writing by the other party or as is necessary in order to give effect to this Agreement;
        9.1.3 Independently developed: where that Confidential Information is independently acquired or developed by the recipient Party;
        9.1.4 Obtained from third party: where that Confidential Information is subsequently disclosed to recipient Party by a third party who has not derived it from the owning Party;
        9.1.5 Public knowledge: where that information has already become public knowledge; or
        9.1.6 This agreement: as otherwise contemplated by this Agreement.

    9.2 Disclosures to others: Each Party (“first party”) may disclose the Confidential Information of the other party to officers, employees, permitted sub-contractors or agents of the first party who have a need to know the Confidential Information for the purposes of this Agreement and who have entered into confidentiality obligations to the first party on terms equivalent to those set out in this clause 9 and that apply to the Confidential Information. The first party will remain liable for any disclosure by such employees, permitted sub-contractors or agents of the Confidential Information of the other Party as if that disclosure were a disclosure by the first party.
    9.3 Client information: For the avoidance of doubt, all information concerning the Deliverables and concerning data regarding the customers of the Client or its licensees, will be regarded as the Confidential Information of the Client.
10. Assignment and Delegation
    10.1 We may assign or transfer our rights and responsibilities under this Agreement to any person with Client’s prior written consent, which shall not be unreasonably withheld. We will give you written notice in advance if we intend to do this.
    10.2 We may subcontract the performance of any of our responsibilities under this Agreement to any person with Client’s prior written consent, which shall not be unreasonably withheld.
    10.3 You may not assign or transfer any of your rights or responsibilities under this Agreement to any person without our prior written consent, which shall not be unreasonably withheld.

11. Notices
    11.1 Any notice or other communication to be given under this Agreement may be in writing and delivered by hand, registered mail, e-mail or facsimile.
        11.1.1 Notices to Modica should be addressed to:
            Post: Modica Group Limited
            PO Box 9879, Marion Square, Wellington 6141, NZ
            By Hand: Modica Group Limited
            Lvl 6, Old Wool House, 139 Featherston Street, Wellington,NZ
            Facsimile: +64 4 498 6006
        11.1.2 Notices to the Client will be addressed in accordance with the details held in our Customer Management System. It is your responsibility to ensure that these details are kept up to date at all times.
    11.2 Receipt shall be deemed upon delivery by hand, three business days after posting, or upon receipt of an accurate e-mail or facsimile confirmation (whichever is applicable).

12. Dispute Resolution
    12.1 Negotiation: Where any dispute arises in relation to this Agreement or any matter arising under it, the parties will make genuine efforts to resolve the dispute by negotiation (ensuring the dispute is internally escalated in a timely manner to the appropriate levels of management as required).
    12.2 Mediation: If the parties fail to negotiate a resolution to the dispute within a reasonable time (at most 20 Business Days), they shall then attempt to resolve it by mediation. If the parties cannot agree on a mediator within seven days, the appointment will be made by the President of the New Zealand Law Society.

13. Warranties, Liability and Insurance
    13.1  We will utilise our reasonable efforts to maintain acceptable performance of the contracted products or services. However we do not guarantee continuous service, or the integrity of data stored or transmitted via our systems, via the Internet or any network.
    13.2 Warranties: We warrant as follows:
        13.2.1 the Deliverables will comply in all respects with the specifications for them set out in the relevant Service Schedule;
        13.2.2 all employees, personnel and contractors of Modica Group engaged in the performance of the Services will be appropriately qualified and experienced and will be suitable and capable of performing their obligations to the standard required under this Agreement.
    13.3 Varied or negated: The warranties in clause 13.2 may be varied, negated or limited only as expressly specified in a Service Schedule. Warranties may be given in a Service Schedule in addition to the warranties in clause 13.2.
    13.4 Exclusions: In no event will the measure of damages against either Party for any breach of this Agreement, tortious or other action or contravention of any statute include, nor will either Party be liable for:
        13.4.1 Fault of Other: any breach of this Agreement to the extent that the breach is attributable to the prior breach of the other Party; or
        13.4.2 Indirect or Consequential: any amounts for loss of income, profit or savings; or for indirect, consequential or punitive damages of the other Party including amounts payable to third parties.
        13.4.3 Data: any damages or costs to restore lost or corrupted data;
        13.4.4 Excusable Event: an Excusable Event.
        13.4.5 Force Majeure: Neither Party shall be deemed in default of these Terms and Conditions or the Agreement to the extent that performance of its obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, war, natural disaster, accident, act of government, strikes, unavailability of material, Telco capacity or supplies, any failure of a Third Party Provider to supply goods or services associated with or comprising a Modica Group Deliverable or Service, shortages of or failure to deliver hardware and/or software not attributable to an act or failure to act of the Party seeking the protection of the force majeure or any other cause beyond the reasonable control of such Party ("Force Majeure"), provided that such Party gives the other Party written notice thereof promptly and, in any event, within fifteen (15) days of discovery thereof. In the event of such a Force Majeure, the time for performance or cure shall be extended for a period equal to the duration of the Force Majeure.
    13.5 Limit of Liability: Each Party’s total liability to the other for damages in connection with one or more breaches of this Agreement, tortious or other action or contravention of any statute will not in any circumstances exceed in aggregate the total amount paid by you to us pursuant to this Agreement in the previous twelve months.
    13.6 Exclusions: The limitations and exclusions of liability in clauses 13.4 and 13.5 will not apply in respect of any breach of clause 9.
    13.7 Insurance: During the term of this Agreement and for three years afterwards, we will maintain insurance coverage in amounts and against risks that are normal for businesses similar to that of Modica Group including coverage against public liability, property damage and product liability, in amounts of at least NZ$2 million per claim. We will, upon request, provide to you a certificate from the insurer confirming the terms of such insurance.

14. General Legal
    14.1 Excusable Event: The following rules apply to Excusable Events:
        14.1.1 Obligation suspended: An obligation of a party under this Agreement shall be suspended during the time and to the extent the party is prevented from or delayed in complying with that obligation by an Excusable Event.
        14.1.2 Notice: That party must notify the other of the details of the Excusable Event.
        14.1.3 Termination: Either party may terminate the relevant Schedule affected by the Excusable Event if the Excusable Event (or the failure or delay as a result of it) continues or is likely to continue for 20 Business Days or more.
    14.2 Conflict: In the event of any conflict between these terms and conditions and any supplementary terms and conditions within Service Schedules then the terms and conditions within the Service Schedules will take precedence.
    14.3 Staff: Neither party will offer employment to an employee of the other during the term of this Agreement or for 6 months after this Agreement has ended without the prior written consent of the other party.
    14.4 Independent Contractors: Each of the Parties is and shall remain at all times an independent contractor fully responsible for its own acts or defaults (including those of its employees and agents). Neither Party is authorised and neither of the Parties nor their employees, agents or representatives shall at any time attempt to act or act on behalf of the other Party to bind the other Party in any manner whatsoever to any obligations. Neither Party nor its employees, agents or representatives shall engage in any acts which may lead any person to believe that such Party is an employee, agent or representative of the other Party. Nothing in this Agreement shall be deemed to constitute a partnership between the Parties.
    14.5 Entire agreement: This Agreement constitutes the entire Agreement between the parties as it relates to the subject matter of this Agreement. This Agreement shall not be amended or varied except in writing signed by duly authorised representatives of both parties.
    14.6 Governing Law: Conditions and the Agreement shall be governed by, and construed in accordance with, the laws of New Zealand, and the Courts of New Zealand shall have sole jurisdiction to hear and determine any disputes arising under or in connection with these Terms and Conditions and the Agreement.
    14.7 Waiver: No failure or delay by either Party to exercise any right or remedy under this Agreement will be treated as a waiver of such right or remedy. No single or partial exercise of any right or remedy will prevent the further exercise of such right or remedy.
    14.8 Privacy: All data held by us about you, including Subscription Data, is held in accordance with our Privacy Policy as published at, and as may be amended by us from time to time.