Date of last revision: 3 February 2014
At MODLR we are devoted to providing an excellent service to you and your business. Use of our online software, our web site and any other services we offer (Services) are subject to the following Terms of Service (Terms).
Definitions and variations
- MODLR, we, us and our means MODLR Pty Ltd ABN 61 601 210 799, its relevant related bodies corporate and affiliates.
- MODLR reserves the right to vary these Terms from time to time.
- If there are any variations to our Terms or our Pricing then they will be effective at least one week from posting on the MODLR Website. Use of the Service after that date constitutes acceptance of the varied Terms.
- These Terms supersede any prior agreements.
- Access Authority means the End User and/or User who the End User prescribes levels of access to your MODLR Services.
- Add-ons means widgets, plug-ins, web applications, software, components, Integration, integrator, connector and/or any other technology that communicates, interacts or embeds MODLR or is embedded in MODLR.
- End User, you and your means a person or entity that will derive the benefit from the subscription to any of the MODLR Services, and includes any individual who is either invited or authorised by the End User to access the End User's Data and use any of the MODLR Services.
- End User Data means all Information submitted by End User or on behalf of End User and other permitted information submitted by End User to, or collected by End User, via any MODLR Service. End User Data does not include sensitive Information.
- End User Materials means any file, document, report, or other information provided by the End User or a third party on behalf of the End User in order for MODLR to create End User Data.
- Password means a confidential alphanumeric, which when used with other Access Authority information, gives access to MODLR Services.
- Services means any product or service, including but not limited to the software platform that hosts End User Data, the End User Data acquisition service or the software-as-a-service provided by MODLR and accessed via the MODLR Website by registration as an End User and by signing on for use using Access Authority.
- MODLR Logos means any logo, brand, trademark, image or other material we provide containing any MODLR associated trademarks, trading names, URL's be they registered or otherwise.
End User Terms of Service
- You must provide all equipment necessary to make a connection to the internet and pay any service fees to your relevant internet service provider for access to internet.
- You must obtain access to and pay for the use of Services. This is accomplished by registering as a MODLR End User or by using any End User id on the site provided by any third party or us.
- You agree to pay all Service subscription fees MODLR charges you for the Services when you register.
- You also agree to pay all consulting service fees for staff services if any are specifically requested by you and provided by our staff.
- You agree to pay all taxes applicable to the access, use or receipt of the Service; these will always be disclosed to you clearly in advance.
- If MODLR is required to collect overdue fees from you, you agree to pay all reasonable costs (including legal fees on a full indemnity basis), if any, incurred by MODLR in collecting those overdue fees from you, and to pay a late charge on any overdue fees at our bank's business cheque account overdraft rates plus 2 percent.
- If you fail to pay your fees for Services by any expiry or due date, MODLR reserves the right to restrict access to all files that relating to the unpaid subscription.
- You accept that when a subscription is locked, all users of the affected files will be unable to view, edit or add any End User Data to the file. Full access will be restored upon receipt of all accumulated unpaid subscription fees.
- You may subscribe to MODLR Services using the MODLR Website sign-up page.
- You may invite individual users to, on your behalf, have Access Authority.
- We may suspend or terminate your account and refuse use of Services if you provide any information (including a valid contact email address or phone number) that is false, misleading, inaccurate, not current or incomplete or if MODLR has reasonable grounds to believe that such information is false, misleading, inaccurate, not current or incomplete or if any terms in this agreement are breached.
- We may suspend or terminate your account and refuse use of Services if you do not comply with our Terms or if you are deemed to be abusive (including using language that is deemed to be abusive to staff, such deeming shall be at the sole discretion of MODLR).
- You agree that when subscribing you will select a secure password that complies with the MODLR password registration rules.
- You accept responsibility for maintaining confidentiality of any password and other access information used by yourself and your authorised users who have Access Authority.
- You acknowledge that the Internet is an open system and MODLR cannot and does not warrant or guarantee that third parties cannot intercept your information.
Communications between you and MODLR
- MODLR may contact you by web page, email, post, internet chat, phone text messaging (SMS) or telephone (or other means in the future as they are developed from time to time) to communicate important information regarding the use of the Service and related products and services such as but not limited to third party Add-ons.
Your non-transferable licence
- We grant you a non-transferable, non-exclusive and terminable right and licence to use the Services under these Terms.
- You agree that title and ownership of the Services and all our confidential information and trade secrets remain with us.
- You agree not to copy (or allow a third party to copy), modify, create a derivative work, reverse engineer or reverse assemble, disassemble, or decompile MODLR software, or any other action to allow its whole or partial re-use by End User or others.
- You are licensed for the number of installations (projects or buildings) and data points specified in the subscription plan to which you are a End User.
- We agree that in the event of an upgrade in MODLR software, the Licence hereby granted shall automatically transfer to the new version.
- You agree that all rights in respect of the original version of MODLR software shall lapse and no further use of it shall be permitted.
- You agree that your licence under these Terms is effective until suspended or terminated by us or by ceasing subscription payments.
- You agree that payment for your subscription is due in advance of the next subscription expiry date.
- In the event you choose to end your subscription Service, you agree that you can choose to export your End User Data using the export functions provided by the Service.
- We reserve the right to charge you for time and materials if you request your End User Data be exported by us rather than you doing this yourself.
- You agree to use your best endeavours to ensure the safeguard of your Password(s) for your organisation in order to ensure there is no unauthorised access to, copying or collection of information from your End User Data and you indemnify MODLR for any and all losses you or MODLR may incur as a result of failing to safeguard your Password(s).
End User Data
- As between the parties, End User shall own and retain all rights to the End User Data and End User Materials. These Terms do not grant MODLR any ownership rights to End User Materials or End User Data. End User grants permission to MODLR to use the End User Materials and End User Data only as necessary to provide the MODLR Service to End User, and not for any other purpose, unless specifically allowed.
- Aggregate Data. MODLR may monitor use of the MODLR Service by all of its customers and use End User Data and End User Materials related to such use in an aggregate and anonymous manner, including delivery of benchmarking, statistical and performance information related to the MODLR Service. End User agrees that MODLR may use and publish such information, provided that such information does not identify any End User, End User Data and/or End User Materials.
- Safeguards. MODLR will maintain commercially appropriate administrative, physical and technical safeguards for protection of the security, confidentiality and integrity of End User Data and End User Materials.
- No Sensitive Information. CUSTOMER AGREES NOT TO USE THE MODLR SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION. MODLR DISCLAIMS ANY AND ALL LIABILITY THAT MAY ARISE FROM END USER'S USE OF THE SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION.
- You accept that by setting any of your End User Data to be shared publicly that you allow others to view and share that information.
- You accept that by letting your subscription expire, requesting your subscription be closed or by failing to meet the Terms of Service that we may delete all your End User Data permanently at a time or date of our choosing but not within 30 days.
- You accept that MODLR offers data recovery services at its discretion and may charge a fee for any such service.
- You accept the responsibility of having your own practices to cover risk associated with our data management where you don't feel our practices are appropriate for you.
- You accept that our practices for data management may change from time to time and we reserve the right to make these changes.
- End User grants MODLR the right to add End User's name and company logo to its customer list, its marketing materials, the MODLR Website and websites. Except for the foregoing, neither party may use the other party's name or logo without the other party's prior written consent.
- You agree that we may use communications with you (feedback, praise, criticisms, quotes, correspondence, support conversations and any other interactions with you) in our content, provided we obtain your consent.
- You agree this material we are permitted to use includes your Internet addresses (as email addresses and web addresses and any other forms including messaging) that you choose to supply us in any way as well as linking to those addresses such as your website from our website and reproducing carefully selected appropriate public material from your website including images, logos, trade or service marks, brands and the like from your website on our testimonials website page and also in related places and materials both online and in other forms including directories that we publish.
- You acknowledge you are not entitled to any payment for use of this material.
Terminating your MODLR Service
- Once MODLR has been notified of End User's intent to terminate this agreement, End User will have the capability to convert their data from its representation within the MODLR system repository into a standard file-based format such as .csv. End User must complete any conversion of data prior to the effective date of such termination. End User, at its option, may engage MODLR professional services team under a separate Statement of Work and price quote to extract data into a transportable media format such as .csv.
- You may end the Service by not renewing at your next expiry date.
- End Users who terminate will not receive a refund for any unused portion of the Service.
MODLR general practices regarding use of the Service
- We may establish general practices and limitations that apply to the use of the Service.
- You accept that we may change these general practices and limits at any time, at our discretion.
- You accept that we may disable accounts that are inactive for a period of more than six months.
- You accept that we may log off (also referred to as sign off or sign out) users who have been inactive for a reasonable period of time or for the purposes of conducting reasonable system maintenance and repairs.
- You accept that we reserve the right to disable or change features of the Service if those features are infrequently used by our users or at our discretion.
MODLR Website, website and other publications (our Content)
- You assume all risks concerning the suitability and accuracy of the information within the MODLR Website, our web site and publications.
- While we will do everything reasonably possible to ensure our Content is accurate and without error, we may from time to time have inaccuracies or errors in our Content.
- You accept that we will, from time to time, alter information in the MODLR Website or our web site which contains pricing, market information and/or product and service specifications, and that these product and service offerings may not be relevant, suitable or available to you.
- You accept that links to third party sites can lead you to Content not under our control or responsibility and thus you accept that using such a third party site is at your own risk.
- You accept that the inclusion of any link does not imply that MODLR is endorsing or is accepting responsibility for the content, products or services of third party websites.
- You accept that the Content we provide is educational and information only and is not legal, taxation and/or financial or financial product advice.
- You agree to obtain professional legal, taxation and/or financial or financial product advice rather than rely on Content we provide.
- You accept that use of the Services is at your risk.
- You accept that MODLR is not responsible for any adverse consequences arising out of the use of the Services.
- You agree to indemnify, defend and hold harmless MODLR from and against any and all claims, proceedings, damages, liability and costs (including reasonable solicitors fees) incurred by MODLR as a result of any claim arising from your violation of the Terms, State, Commonwealth or local law or regulations, or any third party's rights including but not limited to infringement of copyright, violation of any intellectual property right, proprietary right and invasion of privacy or breach of moral rights.
- You accept that these obligations survive termination of the Service.
- You accept that we will not accept liability for failures in providing Services that are outside normal usage or reasonably foreseeable including force majeure, natural disasters, acts of God, war, terrorism, third party service (including telecommunications) disruption and civil disobedience.
Disclaimer and limitation of warranties
- To the maximum extent permitted by law, you accept that the Services (including all content, software, functions and operational hosting services) are provided "as is", without warranty of any kind.
- MODLR expressly disclaims all warranties of any kind, whether express or implied, including without limitation, title, security, fitness for purpose, accuracy, uninterrupted timely and error free service, errors in software will be corrected, service will meet user requirements, damages or injury caused by any failure of performance, computer virus, communication failure and unauthorised access.
EXCEPT FOR LIABILITIES ARISING FROM PERSONAL INJURY OR DAMAGE TO TANGIBLE PROPERTY OR CHANNEL PARTNER'S INDEMNITY OBLIGATIONS, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, PUNATIVE OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE OR LOSS OF PROFITS, REGARDLESS OF THE FORM OF THE ACTION, WHETHER IN CONTRACT OR IN TORT, INCLUDING NEGLIGENCE, ARISING FROM THE RELATIONSHIP OR THE CONDUCT OF BUSINESS UNDER THIS AGREEMENT, INCLUDING SERVICE OUTAGES (OTHER THAN CREDITS, AND ANY CANCELLATION OR MODIFICATION OF A SERVICE, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). IN NO EVENT WILL THE CUMULATIVE LIABILITY OF MODLR HEREUNDER, FROM ALL CAUSES OF ANY KIND, IN ANY AND ALL CATEGORIES, INCLUDING BUT NOT LIMITED TO FRAUD, MISTAKE, NEGLIGENCE, ACT OR OMISSION, AND BREACH, EXCEED IN THE AGGREGATE, THREE (3) MONTHS' OF SERVICE FEES PAID TO CHANNEL PARTNER UNDER THIS AGREEMENT OR ONE THOUSAND DOLLARS ($1,000), WHICH EVER IS the GREATER. MODLR MAY ELECT TO MEET ANY LIABILITY UNDER THIS AGREEMENT BY THE GRANT OF CREDITS TO CHANNEL PARTNER FOR USE OF THE SERVICE.
IN THE EVENT THAT ANY SUPPLY OF GOODS OR SERVICES UNDER THIS AGREEMENT CONSTITUTES A SUPPLY OF GOODS OR SERVICES REGULATED BY THE AUSTRALIAN CONSUMER LAW, NOTHING CONTAINED IN THIS AGREMENT EXCLUDES, RESTRICTS OR MODIFIES ANY MANDATORY GUARANTEE, CONDITION, WARRANTY OR OTHER OBLIGATION UNDER THAT LAW. TO THE FULLEST EXTENT PERMITTED BY LAW, WHERE THE BENEFIT OF SUCH GUARANTEE, CONDITION, WARRANTY OR OTHER OBLIGATION IS APPLICABLE, THE SUPPLYING PARTY'S SOLE LIABILITY FOR ITS BREACH, INCLUDING IN RESPECT OF ANY CONSEQUENTIAL LOSS, IS LIMITED TO (A) IN RELATION TO GOODS, THEIR REPLACEMENT OR THE SUPPLY OR EQUIVALENT GOODS OR PAYMENT OF THE COST OF REPLACING THE GOODS OR ACQUIRING EQUIVALENT GOODS OR THE REPAIR OF THE GOODS OR PAYMENT OF THE COST OF HAVING THE GOODS REPAIRED; AND (B) IN RELATION TO SERVICES, THE SUPPLY OF THE SERVICES AGAIN OR THE PAYMENT OF THE COST OF HAVING THE SERVICES SUPPLIED AGAIN, IN EACH CASE AS THE PARTY SUPPLYING THE GOODS OF SERVICES MAY SELECT.
Proprietary and confidential information
- You acknowledge and agree that the Services may contain proprietary and confidential information that is protected by intellectual property and other laws.
- You agree not to loan, modify, lease, sell, distribute or create derivative works based on the Service or use the Service otherwise than for a permitted service.
- You agree not to use or display any MODLR trademarks, logos, product and services names or other MODLR material of any form (including any derivations) without our written approval or as described elsewhere in these Terms where you are a MODLR Partner.
- You may not assign, sell, distribute, lease, rent, lend, sub-license, or transfer the whole or any part of the Service or this licence (subject to the prior written consent of MODLR)
- We provide technical support where issues arise for the Service such as defects. We do not support third party data bases or data sources.
- We provide comprehensive online help screens.
- We reserve the right to limit the time spent on email and telephone support calls to 10 minutes or less for a single support enquiry.
- We reserve the right not to provide support services even if it has been purchased if we deem the support service is being used in an unethical, abusive, negligent or fraudulent manner.
- You accept that support is only available while an online service is current and paid in full.
- You accept that any instruction we give you is general educational information that may or may not meet your specific requirements.
- You accept that the support service is for basic usability and functionality queries.
- You agree that in reporting any defects to our support service, to be specific and provide at least one identifiable example of the defect.
- You agree to allow us access to your End User Data and End User Materials to troubleshoot or problem solve a defect.
- You agree that Internet, network, hardware, software inquiries relating to third party providers are not resolved by MODLR.
- You agree that our support team will deem if the inquiry falls within the nature of the MODLR support service or is a third party support matter.
- You accept that support team availability and response times may be affected by call or email volumes, staff absence, server maintenance and upgrades relating to new releases.
- Your privacy is very important to us.
Fair Play Promise
Our Fair Play Promise is a policy that ensures MODLR delivers you consistent value and service as a paying End User.
As part of our Fair Play Promise, we will:
- Limit the resources hosting services or processing throughput or other resources you are allowed to use to a reasonable amount for the subscription level you are paying for.
- Set the limit based on reasonable averages for other users like you.
- Allow you to add users as long as the number of users added doesn't exceed a reasonable level of users when compared to the average number of active users we see per account across all our End Users.
- Set limits for the common good in order to prevent one user inadvertently using excessive resources that should be shared with other users.
- Reserve the right to terminate service to you if you exceed your limits or abuse the service or our staff or communication channels in any way.
- Tell you well in advance (normally) if you breach any limits and we will give you the option of reducing your usage back below the limit or upgrading to a more appropriate plan.
- Be flexible and try to give you the benefit of the doubt so we will normally not prevent you operating if you breach limits briefly and return to within limits in a reasonable time.
- We reserve the right to vary prices or features for all End Users, including free users, at any time but will always try to give you reasonable notice.
- Monitor your use of the system and ensure allocation of resources between End Users is fair using methods that may be adjusted at our discretion in the event you abuse the system.
- Unless we otherwise agree, the Service may only be used within Australia.
Governing law and jurisdiction
- These terms are governed by and are to be construed in accordance with the laws of New South Wales.
- Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of New South Wales and all courts which have jurisdiction to hear appeals from those courts.
- Each party waives any right to object to proceedings being brought in those courts for any reason.