Terms of Service – New Zealand

Introduction

These terms constitute a contract between Inugo Systems Limited (“Inugo”) and;

  1. each person who owns and/or operates a carpark (“Customer”) if Inugo and the Customer have agreed that Inugo will supply services in respect of carparks to that person; and
  2. each person, if any, who operates a carpark  for and on behalf of a Customer (“Operator”)

Part 1-Preliminary

  1. Interpretation

      1. Definitions:  In this Agreement unless the context otherwise requires:

    “Agreement” means an agreement (whether in electronic or written form) under which Inugo agrees to provide services to a Customer and (if applicable) an Operator in respect of Carparks.

    “App” means the software application relating to the System, produced by Inugo, which people can download to mobile electronic devices, in whatever form it is from time to time.

    “Gate Controller” means a device developed and owned by Inugo for installation in carparks which enables access to a carpark by recognising a  mobile device.

    “Business Day” means any day other than a Saturday, Sunday, or public holiday in Auckland.

    “Carpark” means the carpark or carparks owned and/or operated by the Customer and identified in the Agreement. If there is more than one carpark identified, a reference in these Terms to “Carpark” is to each of them.

    “Carpark Information” means information to be provided by the Customer referred to in clause 6.2 “Claim” has the meaning in clause “Contract” means the contract between Inugo and the Customer recorded in these Terms and an Agreement.

    “GST” means goods and services tax chargeable in accordance with the Goods and Services Tax Act 1985.

    “Intellectual Property” means all rights (including ownership rights, rights or licences to use, rights arising through use, and rights which are the subject of applications to register) in or to any trade name, design, patent, copyright, know-how, process, method, invention, database, circuit layout or other form of intellectual property (whether or not registered), and all rights or forms of protection of a similar nature or having equivalent or similar effect to any of those in any part of the world, which in any way relate to or affect the System, the App, or Gate Controllers.

    “Loss” means any cost, loss, liability, claim, demand, fine or penalty.

    “Operator” means a person (if any) who operates a Carpark for or on behalf of a Customer,  and includes any replacement Operator appointed in terms of clause 18.3.

    “Payment Processor” means a person selected by Inugo to receive and process User Payments.

    “Private Carpark” means a Carpark other than a Public Carpark.

    “Public Carpark” means a carpark in respect of which Inugo and a Customer have agreed that part 2 of these Terms is to apply.

    “Services” has the meaning in clause 3.1.

    “Signing Date” means the date on which a Customer enters into an Agreement.

    “System” means the system relating to the operation of carparks, including access to and payment for carparks, and managing and recording the use of and access to carparks, developed by Inugo.

    “Term” means the term of the contract between a Customer and Inugo specified in clause 4, as extended or terminated under any provision of these Terms

    “User” means a person who downloads and uses the App.

    “User Agreement” means the Agreement between Inugo and Users referred to in clause 9.1 .

    “User Payment” means a payment made or to be made by a User for the use of a Public Carpark.

  2. Interpretation:  In these Terms, unless the context otherwise requires, or specifically stated otherwise:

    1. headings are to be ignored in construing these Terms;
    2. the singular includes the plural and vice versa;
    3. one gender includes the other genders;
    4. references to individuals include companies and other corporations and vice versa;
    5. a reference to a statute or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them ;
    6. reference to a  person  includes an individual, partnership, firm, company, body corporate, corporation, association, trust, estate, state, government or any agency thereof, municipal or local authority and any other entity, whether incorporated or not (in each case whether or not having a separate legal personality);
    7. “written” and “in writing” include any means of reproducing words, figures or symbols in a tangible and visible form;
    8. references to money are in New Zealand dollars;
    9. references to time of day or dates are in New Zealand times and dates;
    10. any word or expression cognate with a definition in these Terms has a meaning corresponding or construed to the definition; and
    11. reference to a “party” does not include the Operator.
  3. Provision of Services

    1. Inugo shall throughout the Term provide to the Customer the services referred to in these Terms (“Services”).
  4. Exclusivity

    1. The Customer shall not during the Term obtain services similar to the Services from any party other than Inugo, or enter into any agreement with any party other than Inugo relating to services similar to the Services.
  5. Term

    1. Commencement:  The term of the Contract  commences on the Signing Date.
    2. Termination:  The term of the Contract may be terminated by not less than 90 days’ notice given by either party to the other.  Any such notice shall take effect at the end of the 4th month following the date of the notice.

    Part 2-Provisions applicable to Public Carparks

    1. Application

      1. Clauses 6 to 9 apply only in respect of Public Carparks.
    2. Listing Service

      1. Listing:  Inugo shall include a reference to each Carpark in the App, in such form, and on such basis, as Inugo decides from time to time.
      2. Carpark Information:  The Customer shall enter into the System, in a form approved by Inugo, full details of:
          1. the charges for the use of each Carpark;
          2. the terms and conditions for the use of each Carpark which may apply to a User; and
          3. the location of, and method of access to, each Carpark.

        The Customer shall also enter into the System full details of any change to any Carpark Information before that change takes effect.

          1. Publication of Carpark Information:  Inugo may include any Carpark Information in the App and/or in User Agreements.
          2. Accuracy:  The Customer shall ensure that all Carpark Information in the System is accurate and up-to-date.  The Customer shall indemnify Inugo against any Loss suffered by Inugo by reason of any inaccuracy in Carpark Information.
      3. Payment Service

        1. Payments:  Inugo shall operate the System so as to cause User Payments to be made to the Payment Processor.  The intention is that the Payment Processor will pay User Payments (after deduction of the amounts referred to in clause 13.2) to the Customer.  The Payment Processor may hold User Payments for up to seven days before payment to the Customer.  Without limiting any other provision of this Agreement, Inugo is not responsible to the Customer for anything done or not done by the Payment Processor, or for ensuring that payment is made by the Payment Processor to the Customer.
      4. Portal Access

        1. Access:  Inugo shall permit the Customer to access the System:
          1. to enter Carpark Information in accordance with clause 6;
          2. to manage access to and pricing of the Carpark services;
          3. to report on Carpark performance; and
          4. to obtain such information as Inugo considers appropriate in respect of Customers using Carparks.

      Inugo may establish procedures (such as the use of passwords or the like) for limiting access to the System, and identifying persons who access the System.

      1. Other Matters Relating To Public Carparks

        1. User Agreements:  Inugo may enter into agreements with Users in respect of the System on such terms as Inugo decides.  The Customer acknowledges that those agreements will provide for Users to pay a fee to Inugo  in addition to the charge levied for use of Carparks.
        2. Marketing:  The Customer acknowledges that marketing of the System in conjunction with Public Carparks is important for the successful introduction and operation of the System.  The Inugo and the Customer shall undertake the marketing activities recorded in the Agreement, or in an appendix to the Agreement or in any other document agreed between the Customer and Inugo.
        3. Publicity:  Inugo may announce and publicise the fact that the Customer, the Operator, and a Public Carpark are participating in the System in such manner as Inugo sees fit from time to time.
        4. Charging:  The Customer shall not charge customers of the Customer that access a Public Carpark through the System, car parking fees which are greater than those charged to customers not using the System.

        Part 3-Provisions applicable to all Carparks

        1. Gate Controller Service

          1. Provision of Gate Controllers:  Inugo [may] provide to the Customer such number of Gate Controllers as Inugo considers appropriate for the Carpark, and shall cause those Gate Controllers to be installed appropriately in the Carpark.
          2. Property etc:  The Gate Controllers and (without limiting clause 14) all Intellectual Property in respect of the Gate Controllers, shall remain the property of Inugo.  The Customer shall not:
            1. service, adjust, dismantle, or examine any Gate Controller;
            2. copy or attempt to copy any Gate Controller or any part of it; or
            3. except pursuant to clause 10.3, remove any Gate Controller from the place at which it is installed.

            Inugo may record its property in the Gate Controllers by registration under the Personal Property Securities Act 1999.

            1. Termination:  On termination of the Contract for any reason, the Customer shall immediately make the Gate Controllers available for collection by Inugo, and shall cooperate with Inugo to enable Inugo to take possession of the Gate Controllers.  If the Customer fails to do that, Inugo may enter the Carpark and do everything necessary to remove and take possession of the Gate Controllers, and shall not be liable for any damage done in doing so.
          3. Use of System

            1. Responsibility:  The Customer is solely responsible for:
              1. compliance with these Terms by employees, agents, and contractors of the Customer and the Operator; and
              2. the accuracy, quality and legality of  information or data provided by the Customer or the Operator or entered into the System by or on behalf of the Customer or the Operator.
            2. Covenants:  The Customer shall:
              1. use commercially reasonable efforts to prevent unauthorised access to the System, and notify Inugo promptly of any unauthorised access or use of which the Customer becomes aware;
              2. comply with all usage limits in respect of the System notified to the Customer by Inugo; and
              3. ensure that a password for use of the System assigned to any employee or agent of the Customer or the Operator is not used by any other person.
            3. Negative Covenants:  The Customer shall not:
              1. make the System or use of the System available to, or use the System for the benefit of, anyone other than the Customer and the Operator;
              2. sell, re-sell, license, sublicense, distribute, make available, rent or lease the System or any information in the System, or purport to do so;
              3. interfere with or disrupt the integrity or performance of the System, or any data of other parties contained in the System; or
              4. copy the System or any part, feature, or function of the System.
          4. Service Levels

            1. Availability:   Inugo shall ensure that the System is available for access in accordance with these Terms at least 99.8% of the time, on a 24 hour day, 7 day a week basis.
            2. Compensation:  If Inugo fails to comply with clause 12.1, Inugo shall compensate the Customer by reducing any monthly fee payable by the Customer by 1/30th of that fee for each day in respect of which clause 12.1 is not complied with, and shall refund to the Customer the amount of that reduction. No reduction, refund or reimbursement of any transaction fees charged shall be applicable.
            3. Exclusive remedy:  The right of the Customer under clause 12.2 is the sole and exclusive remedy of the Customer in respect of failure by Inugo to comply with clause 12.1.
          5. Fees

            1. Fees:  The Customer shall pay to Inugo such fees in respect of the Services as may be agreed in an Agreement.  Those fees shall be paid at the times, and by the instalments, specified in the Agreement.
            2. Deductions:  The Payment Processor may deduct from payments made to the Customer under clause 8 in respect of Public Carparks:
              1. the fee payable by the User to Inugo referred to in clause 7.1; and
              2. all charges of the Payment Processor.
            3. GST:  The fees specified in clause 7 include GST.
            4. Invoice: Inugo shall, not later than  the end of each month, provide to the Customer an invoice for the fees  payable by the Customer in that month.  Each invoice shall be in the form of a tax invoice for GST purposes.
            5. Change of fees:  Inugo may change the fees referred to in clause 13.1 in accordance with the following process:
              1. Inugo shall give notice of any change of fees to the Customer not later than 10 Business Days before that change is to take effect;
              2. if the fee is increased by the notice, the Customer may, within 10 Business Days after notice is given by Inugo, give notice to Inugo terminating the Contract, and the Contract shall terminate 10 Business Days after the Customer gives that notice.  If the Customer gives that notice, any increase in fees shall not take effect.
            6. Late payment:  Without limiting any other remedy of Inugo, Inugo may, if the Customer fails to pay any amount payable under these Terms on its due date, suspend the provision of Services until such time as the Customer has made that payment.
          6. Intellectual Property

            1. Ownership:  All Intellectual Property is the sole and exclusive property of Inugo.  The Customer shall not:
              1. investigate, research, copy, or disclose any Intellectual Property; or
              2. make any claim to ownership of, or any right to, any Intellectual Property.
            2. Protection:  The Customer shall take reasonable steps to safeguard, and maintain the confidentially of, the Intellectual Property.  The Customer shall at the request and expense of Inugo take such steps as Inugo may request to support and protect Inugo’s rights to, and ownership of, the Intellectual Property.
          7. Provisions Relating to the System

            1. Customer Success Team:  Inugo shall provide to the Customer access to personnel of Inugo to assist with issues in respect of the System, by way of telephone, text messaging, and email.  Inugo shall ensure that that support is available during the hours in each day specified in the Agreement, or if no hours are specified, between the hours of 9am  and 5pm on weekdays.
            2. Force majeure:  Inugo shall not be liable for any failure or delay in complying with any obligation imposed on Inugo under these Terms if the failure or delay arises from an event or circumstance reasonably unforeseeable or beyond Inugo’s control, and not arising from the fault or insolvency of Inugo.
          8. Covenants of Customer

            1. Indemnity:  The Customer indemnifies Inugo against any Loss suffered by Inugo by reason of:
              1. any breach by the Customer or the Operator of this Agreement;
              2. any claim or action by any User against Inugo which relates to the use of the Carpark, anything which occurs in or about the Carpark, or anything done or not done by the Customer or any employee or agent of the Customer.
            2. Legal Compliance:  The Customer shall comply with all laws relating to the ownership or operation of the Carpark, including without limitation laws relating to fair trading, advertising, or the like.
          9. Liability

            1. Maximum liability of Inugo:  The maximum liability of Inugo in respect of claims in connection with the Contract in contract, tort, (including negligence) or otherwise (“Claims”) shall be limited, in respect of all events and circumstances in any 12 month period, to an amount equal to the fees  actually received by Inugo from the Customer during the period of six months before Inugo first receives notice of a Claim.
            2. No liability for consequential loss: Inugo shall not be liable in connection with a Claim for any indirect or consequential loss or for any loss of revenue, profits, goodwill, business or anticipated business, anticipated savings or for any business interruption, loss of data, or other indirect or consequential loss or damage whether or not that loss was, or ought to have been, contemplated by Inugo.
            3. Consumer Guarantees Act:  The parties agree that the Services are supplied for the purposes of a business, and that the Consumer Guarantees Act 1993 does not apply.
          10. Operator

            1. Compliance:  The Operator shall comply with the obligations of the Customer in clauses 11.1, 11.2, 11.3,  12,  14,  9.4, 16.2, and 21 as if the Operator were named in those provisions instead of the Customer.
            2. Enforcement:  The Operator is not entitled to enforce any provision of the Contract against Inugo or to give any notice under the Contract.  Only the Customer may enforce the provisions of the Contract against Inugo.
            3. Change of Operator:  If the Operator ceases to be manager or operator of the Carpark, the Customer shall immediately notify Inugo.  If any other person is appointed as manager or operator of the Carpark, the Customer shall without delay cause that person to enter into a document in a form required by Inugo whereby that person becomes bound as Operator under the Contract.
          11. Termination for Breach

            1. Default: A party is in default  if:
              1. that party breaches, or fails to perform, any obligation of that party under the Contract (including without limitation by failing to pay any amount payable under the Contract) and fails to remedy the breach or perform the obligation within 10 Business Days after receiving notice from the other party specifying the breach or failure and requiring remedy;
              2. the primary, or all of, the business activities of that party are suspended or cease;
              3. that party:
                1. is, becomes, or is deemed to be, insolvent or bankrupt;
                2. makes an assignment for the benefit of, or enters into or makes any arrangement or composition with, its creditors; or
                3. has a receiver, administrator, or trustee and manager (or either of them) (including a statutory manager) appointed in respect of all or any of its property;
              4. any resolution is passed, or any proceeding is commenced, for the winding up or liquidation of that party.
            2. Termination:  If a party is in default in terms of clause 19.1, Inugo (if the party in default is the Customer or the Operator), or the Customer (if the party in default is Inugo), may by notice to the other parties terminate the Contract.
            3. Effect of Termination:  Expiry or termination of the Contract (whether under clause 19.2 or otherwise):
              1. shall be without prejudice to the rights and remedies of any party arising out of or in connection with any breach of the Contract occurring prior to the date of expiry or termination, or to the rights of any party which have accrued prior to, or which arise out of or in connection with, expiry or termination;
              2. shall not terminate clauses 14, 21 or 23, which shall continue in force notwithstanding expiry or termination.
          12. Assignment and Subcontracting

            1. Assignment:  Subject to clause 20.2, no party shall directly or indirectly assign, transfer or otherwise dispose of any of its rights or interests in, or any of its obligations or liabilities under, or in connection with, the Contract except with the prior consent of Inugo (in the case of assignment or transfer by the Customer or the Operator) or the Customer (in the case of an assignment or transfer by Inugo), which consent shall not be unreasonably or arbitrarily withheld or delayed.
            2. Sale of Business:  Inugo may assign and transfer all of its rights and obligations under the Contract to any person who acquires all or substantially all of the business of Inugo in New Zealand without notice.
            3. Subcontracting:  Inugo may subcontract the performance of the Services or any other obligation of Inugo under the Contract.
          13. Confidentiality

            1. Confidentiality Obligation:  Subject to clauses 21.2 and 21.3, each party shall keep confidential and make no disclosure of:
              1. the existence and contents of the Contract; and
              2. all information obtained from the other party or the other party’s advisers under the Contract or in the course of negotiations in respect of the Contract,

          (together “Information”).

            1. Exceptions:  Information may be disclosed by a party if:
              1. disclosure is required by law; or
              2. disclosure is necessary to obtain the benefits of, or fulfil obligations under, the Contract; or
              3. that Information already is, or becomes, public knowledge other than as a result of a breach of clause 21.1 by that party; or
              4. disclosure is made to a bona fide financier or potential financier of that party, or to a bona fide purchaser or potential purchaser of all or part of the business of, or the shares in, that party, so long as:
                1. that party has notified the other party of the proposed disclosure; and
                2. the person to which disclosure is to be made has entered into a confidentiality agreement in a form reasonably acceptable to the other party; or
              5. disclosure is made to a lawyer or accountant for that party.
          1. Notices

            1. Notices:  Any notice or other communication to be given to or by a party under this Agreement by or to another party:
              1. may be given by personal service or email;
              2. must be in writing, legible and addressed to the address shown in the Agreement or otherwise notified by one party to the others;
              3. must be signed by the sender or an officer or authorised representative of the sender; and
              4. will be deemed to be given by the sender and received by the addressee:
                1. if delivered in person, when delivered to the addressee; or
                2. if sent by email, on the date and time at which it enters the addressee’s information system (as shown in a confirmation of delivery report from the sender’s information system, which indicates that the email was sent to the email address of the addressee notified for the purpose of this clause 22.1),

          but if the delivery or receipt is on a day which is not a working day in the place of intended receipt or is after 5:00 pm (addressee’s time), it is deemed to have been received at 9:00 am on the next working day in that place.

          1. General

            1. Further assurances:  Each party will from time to time on request by any other party execute and deliver all documents and do all other acts and things, which are necessary or reasonably required to give full force and effect to the provisions of, and arrangements contemplated by, the Contract.
            2. Severability:  If any part of the Contract is held by any court or administrative body of competent jurisdiction to be illegal, void or unenforceable such determination will not impair the enforceability of the remaining parts of the Contract, which will remain in full force, and that provision will be deemed to be modified to the extent necessary to render it legal, valid, and enforceable.
            3. Relationship between the parties:  Nothing in the Contract shall create, constitute or evidence any partnership, joint venture, agency, trust or employer/employee relationship between the parties, and a party may not make, or allow to be made, any representation that any such relationship exists between the parties.  A party shall not have the authority to act for, or to incur any obligation on behalf of, the other party, except as expressly provided for in the Contract..
            4. Waiver:  Any delay, failure or forbearance by a party to exercise (in whole or in part) any right, power or remedy under, or in connection with, the Contract shall not operate as a waiver of such right, power or remedy.  A waiver of any breach of any provision of the Contract shall not be effective unless that waiver is in writing and is signed by the party against whom that waiver is claimed.  A waiver of any breach shall not be, or be deemed to be, a waiver of any other or subsequent breach.
            5. Governing law:  The Contract is governed by the laws of New Zealand and the parties submit to the exclusive jurisdiction of the courts of New Zealand in respect of any dispute or proceeding arising out of the Contract.