Terms - MowBot Monthly Subscription

 1. Definitions and interpretation

 1.1 Definitions

In these Terms and Conditions, unless the context otherwise requires:

Automower: means any robotic lawnmowing machine provided by MowBot under a Services Agreement.

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

Commencement Date means the Commencement Date set out in the Customer’s individual and signed MowBot  Services Agreement. 

Default Rate means the rate of interest from time to time payable by MowBot on its commercial overdraft with the bank principally used by MowBot.

Expiry Date means the Expiry Date set out in the Customer’s individual and signed MowBot Services Agreement.

GoCardless Subscription means a subscription to the GoCardless payment processing app that lets users set up and manage recurring payments online.

GST means goods and services tax chargeable, or to which a person may be liable, under the Goods and Services Tax Act 1985.

Intellectual Property means, in respect of any person, all intellectual and industrial property rights and interests (including common law rights and interests) owned or held by that person, or lawfully used by that person, including, without limitation:

1. patents, trade marks, service marks, copyright, registered designs, trade names, symbols, and logos;

2. patent applications and applications to register trade marks, service marks and designs; and

3. formulae, methods, plans, data, drawings, specifications, characteristics, equipment, designs, inventions, discoveries, improvements, know-how, experience, software products, trade secrets, price lists, costings, brochures and other information used by that person.                                   

Services means MowBot’s robotic lawnmowing machine subscription service.

Services Agreement means the Customer’s individual and signed MowBot Monthly Subscription Agreement for Services which is to be read in conjunction with these Terms and Conditions.

Service Fees means the fees set out in Schedule 1 of the Customer’s individual and signed Services Agreement.  

Right of Renewal means the Customer’s option to renew their Services Agreement at the Expiry Date for an additional term of 12-months on the same terms and conditions as set forth herein, excluding Service Fees, which MowBot reserves the right to modify at the time of renewal.

Term means the Term set out in the Services Agreement.

1.2 Interpretation

 In these Terms and Conditions unless the context otherwise requires:

1. headings are to be ignored in construing these terms and conditions;

2.  the singular includes the plural and vice versa;

3. references to individuals include companies and other corporations and vice versa;

4.  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 (whether before or after the date of theses terms and conditions);

5.  reference to any document includes reference to that document (and, where applicable, any of its provisions) as amended, novated, supplemented, or replaced from time to time;

6. reference to a party, person or entity includes:

   1. 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); and

   2. an employee, agent, successor , executor, administrator and other representative of such party, person or entity;

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 to New Zealand dollars;

9. reference to a section, clause, sub-clause, schedule or a party is a reference to that section, clause, sub-clause, schedule or party in these Terms or Conditions unless stated otherwise.

10. “control” includes where one or more persons, directly or indirectly, whether by the legal or beneficial ownership of shares, securities or other equity, the possession of voting power, by contract, trust, or otherwise:

    1. has, or may have, the power to appoint or remove the majority of the members of the governing body of the person concerned;

    2. controls or has the power, or may have the power, to control the affairs or policies of the person concerned; or

    3. is in a position to derive more than 50% of the benefit of the existence or activities of the person concerned.

2. Provision of services

MowBot shall throughout the Term provide the Services to the Customer as set out in the Services Agreement  which is to be read in conjunction with these Terms and Conditions.

3. Term of Services

The Services Agreement will commence on the Commencement Date and shall, unless terminated under a provision of these Terms and Conditions, will continue until the Expiry Date.

​3.1 Right of Renewal

​The Customer will have the option to renew the Services Agreement for an additional term of 12-months (the "Renewal Term"):

1. To exercise the renewal option, the Customer must provide written notice to MowBot at least 10 business days prior to the expiration of the initial term of the Services Agreement. Failure to provide notice of renewal shall result in the automatic termination of the Services Agreement at the end of the initial term.

2. The Renewal Term shall commence immediately upon the expiration of the initial term and shall continue for an additional 12-months unless terminated earlier in accordance with the terms of the Services Agreement;

3. At the time of renewal, MowBot reserves the right to reevaluate the fees for the Renewal Term. MowBot may, at its sole discretion, propose an increase in the fees for the Renewal Term.

4. MowBot shall provide the Customer with written notice of any proposed fee increase at least 5 days prior to the expiration of the initial term of the Services Agreement:

5. Upon receiving the notice of the proposed fee increase, the Customer shall, by written notice, accept or reject the proposed fees. If the Customer disagrees with the proposed fee increase, they shall provide written notice of their disagreement to MowBot before the expiration of the initial term. In this event, the Customer may choose to forego their right to renewal, and the Services Agreement shall terminate at the end of the initial term.

4. Installation

1. MowBot shall provide the Customer with an Automower for the purposes of providing the Services, including the installation, set up and configuration to ensure that the Automower meets the Customer’s lawn care requirements;

2. Every effort is made to ensure that MowBot’s installations are completed to the highest standards;

3. Mowbot are not liable for any damages made to the boundary cable after installation is complete; and

4. Mowbot do not offer installation of electrical outputs at the Customers property. MowBot advise the Customer to hire a trained electrician to install an electrical output where they wish to have the charging station located.

5. Standard of Performance

In providing the Services, MowBot shall:

1. provide all personnel, processes, and resources required to provide the Services;

2. use appropriately skilled, qualified and experienced personnel;

3. keep the Customer fully advised of the progress of the Services and changes or possible changes to the scope or timing of the Services;

4. comply with all relevant laws and maintain all licences, approvals and permits required in order for it to provide the Services;

5. without limiting clauses 5(b) to 5(d) (inclusive), exercise that degree of skill, diligence, prudence and foresight which would reasonably and ordinarily be expected from a skilled, reasonable and experienced operator in the same or similar circumstances, with reference to best international standards and practice.

6. Service Fees

6.1 Fees

The Customer shall pay to MowBot the Service Fees set out in the Services Agreement which is to be read in conjunction with these Terms and Conditions. 

7. Invoicing and payment

7.1 GoCardless Recurring Payments

MowBot shall charge the Customer the Service Fees in advance and on a monthly basis. Service Fees will be automatically deducted from the Customer’s account by GoCardless on the same day each month.

7.2 Payment

1. The Customer shall set up a GoCardless subscription prior to Installation. ;

2. The Customer shall pay for the installation of the Automower and a month of Service Fees in advance of installation; and

3. In the event of damage or loss to the Automower, the Customer acknowledges and agrees that the invoicing for machine repair or replacement will be handled separately from the regular monthly charges via GoCardless. The Customer will be sent a separate invoice in relation to any such damage.

7.3 Default interest

 

If either party does not pay any amount payable under the Services Agreement on the due date for payment (Due Date) that party shall pay to the other party interest (both before and after judgment) on that amount. That interest:

1. shall be paid at the rate of interest from time to time payable by MowBot on its commercial overdraft with the bank principally used by MowBot; and

2. shall be calculated on a daily basis from and including the Due Date until the unpaid amount is paid in full.

The right of a party to require payment of interest under this clause does not limit any other right or remedy of that party.

8. Intellectual Property

 

8.1 Ownership

All Intellectual Property which is owned by, or is proprietary to, a party at the date of the Services Agreement shall remain owned exclusively by that party. All Intellectual Property developed by MowBot related to the provision of robotic lawnmowing services, such as algorithms for mowing patterns or specific software integrations, shall be owned exclusively by MowBot. MowBot grants the Customer a non-exclusive, non-transferable license to use such Intellectual Property solely for the purpose of receiving the services under the Services Agreement.

8.2 No rights

Nothing in the Services Agreement confers on a party any right or interest in any of the other party’s Intellectual Property.

9. Confidentiality

9.1 Confidentiality Obligation

Subject to cl 9.2, each party shall keep confidential, and make no disclosure of:

1. the existence and terms of the Services Agreement and these related Terms and Conditons; and

2. all information obtained from the other party under the Services Agreement, related Terms and Conditions, or in the course of negotiations in respect of the same, (together Information).

9.2 Exceptions

Information may be disclosed by a party if:

1. disclosure is required by law, or necessary to comply with the listing rules of any recognised stock exchange;

2. disclosure is necessary to obtain the benefits of, and fulfil obligations under, the Services Agreement;

3. that Information already is, or becomes, public knowledge other than as a result of a breach of cl 9.1 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.

9.3 Prior notification and consultation

If either party is required by cl 9.2(a) to make a disclosure or announcement, it shall, before doing so:

1. give to the other party the maximum notice reasonably practicable in the circumstances, specifying the requirement under which it is required to disclose Information, and the precise Information which it is required to disclose;

2. comply with all reasonable directions by the other party to contest or resist the requirement to disclose Information; and

3. consult in good faith with the other party with a view to agreeing upon the form and timing of the disclosure or announcement.

10. Force majeure

 

10.1 Excusable delay

Neither party shall be liable for any failure or delay in complying with any obligation imposed on that party under the Services Agreement if:

1. the failure or delay arises directly from an event or circumstance reasonably beyond that party's control and not arising from the fault or insolvency of that party (Event). The following are included as, but not limited to, events or circumstances reasonably beyond a party’s control:

   1. act of God;

   2. earthquake, flood, fire, storm and adverse weather conditions or natural events for which provision could not reasonably have been made;

   3. interruption or failure of any utility services, or unpredictable delays which could not reasonably be prevented in delivery of materials, equipment or services necessary for the compliance by that party with an obligation under the Services Agreement;

   4. sabotage, riot, civil disturbance, explosion, terrorist acts, insurrection, epidemic, national emergency (whether in fact or law) or act of war (whether declared or not);

   5. act or omission of any authority not directly or indirectly arising from any act or omission by that party, its agents, representatives or advisors;

   6. governmental restraint, sanction, expropriation, prohibition, intervention, direction or embargo;

   7. strike, lockout, work stoppage or other labour hindrance; and

   8. that party complies with cl 10.2.

10.2 Notice

A party which wishes to rely on cl 10.1 shall:

1. give the other party written notice as soon as possible but within 5 Business Days after becoming aware of the Event or likelihood of the Event, providing details of the nature, expected duration and effect of the Event, and keep the other party informed of any changes in the nature of the cause and of the cessation of the Event; and

2. use its reasonable endeavours to:

   1. mitigate the effects of the Event on that party’s obligations under the Services Agreement; and

   2. perform that party’s obligations under the Services Agreement within the time specified by the Services Agreement despite the Event.

10.3 Exceptions

 

Clause 10.1 does not excuse a party from any obligation to make a payment when due under the Services Agreement.

10.4 Cancellation

If a party is unable to comply with any obligation imposed on it under the Services Agreement as a result of an Event for 10 consecutive Business Days either party may cancel the Services Agreement with immediate effect by giving written notice to the other party. Cancellation of the Services Agreement under this clause shall not prejudice the rights of either party against the other party in respect of any matter or thing occurring under the Services Agreement prior to cancellation.

10.5 Consequential loss

MowBot shall not be liable to the Customer for any loss of profits, or any consequential, indirect or special loss or damages suffered by the Customer arising directly or indirectly from any breach by MowBot of the Services Agreement or from any negligence or other act or omission of MowBot.

10.6 Monetary limit

The liability of MowBot to the Customer in respect of all claims arising under or in connection with the Services Agreement (including directly or indirectly from any breach by MowBot of the Services Agreement or from any negligence or other act or omission of MowBot), shall be limited to a maximum of:

1. $1 months Service Fee in respect of any event or series of related events; and

2. $3 months Service Fees in aggregate.

11. Neglect, Damage or Theft of Automower: 

1. The Customer acknowledges that they are responsible for any neglect, damage, or theft of the Automower while it is under their care. In the event of irreparable damage or theft, the Customer will be liable for replacing the machine and will be invoiced the current advertised Recommended Retail Price (RRP) by Husqvarna in New Zealand at the time of the incident; and

2. The Customer is strongly advised to obtain insurance coverage for the Automower under their household contents insurance policy to protect against potential loss, theft, or damage.

3. MowBot are not responsible for any theft, damage or neglect made to any Automower, wires or charging station while they are in the possession of the Customer under the Services Agreement. In the event of damage or theft while the machine is in the Customer’s possession, the Customer will be liable for the cost of repairing or replacing the Automower, including parts and labour.

12. Termination

 

Either party may terminate the Services Agreement with one (1) month's prior written notice to the other party. In the event of termination under this clause 12 the following provisions shall apply:

1. MowBot shall cease providing services to the Customer as of the effective termination date specified in the notice.

2. The Customer shall settle all outstanding payments for services rendered up to the effective termination date.

3. Any equipment, materials, or property of MowBot in the possession of the Customer must be returned to MowBot in good condition, subject to reasonable wear and tear.

12. Default

If in respect of either party:

1. that party breaches, or fails to properly or promptly perform, any obligation of that party under the Services Agreement and fails to remedy the breach or perform the obligation

2. that party ceases to carry on all or substantially all of its business or operations; or

3. that party:

   1. is, becomes, or is deemed to be, unable to pay its debts, insolvent or bankrupt;

   2. makes an assignment for the benefit of, or enters into or makes any arrangement or compromise with, its creditors generally; or

   3. goes into receivership or voluntary administration or has a receiver, trustee and manager (or either of them) (including a statutory manager) appointed in respect of all or any of its property; or

4. anything analogous to an event in cl 12.1(c) occurs in respect of that party; or

5. any resolution is passed, or any proceeding is commenced, for the dissolution of that party.

the other party may, by notice to that party, terminate the Services Agreement. The access provision at clause 13(b) shall then apply.

12.2 Effect of Termination

Expiry or termination of the Services Agreement:

1. is without prejudice to any other right, power or remedy under the Services Agreement, at law, or otherwise, that either party has in respect of a default by the other party;

2. shall not terminate clauses 8 and 9 which shall continue in force notwithstanding expiry or termination.

13. Access to Customer’s Property

In consideration of the Services provided under the Services Agreement, MowBot reserves the right to access the Customer's property where any Automower is located under the following circumstances:

1. Maintenance, Servicing, and Repair: MowBot may access the Customer's property, upon reasonable notice to the customer, for the purpose of maintaining, servicing, repairing, or upgrading the Automower(s) to ensure their proper functioning. MowBot will make all reasonable efforts to schedule such access at a time convenient to the Customer.

2. Recovery Due to Non-Payment: In the event that the Customer fails to make timely payments as specified in the Services Agreement, MowBot reserves the right to access the Customer's property to recover the Automower(s) and related equipment provided under the Services Agreement. MowBot will provide the Customer with written notice of non-payment and the intent to recover the Automower(s) prior to taking such action. The Customer will have 5 business days from the date of notice before recovery is initiated.

3. Safety and Compliance: MowBot will take all reasonable precautions to ensure that access to the Customer's property is conducted safely and without causing any damage or disruption. MowBot agrees to comply with all applicable laws and regulations related to property access and will indemnify and hold the Customer harmless for any damages or liabilities arising from MowBot's access, except to the extent such damages result from the Customer's negligence or intentional misconduct.

4. Notice and Coordination: MowBot will provide reasonable advance notice to the Customer before accessing the property, except in cases of emergency or recovery due to non-payment. The Customer agrees to cooperate with MowBot to facilitate access, including ensuring any gates or entry points are accessible at the agreed-upon time.

14. Assignment

 

14.1 No Assignment

Neither 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 Services Agreement,.

15 Notices

15.1 Notice

Every notice or other communication (Notice) for the purposes of the Services Agreement shall:

1. be in writing; and

2. be delivered in accordance with cl 15.2.

15.2 Method of service

A Notice may be given by:

1. delivery to the physical address of the relevant party; or

2. posting it by pre-paid post to the postal address of the relevant party; or

3. sending it by email to the email address of the relevant party.

15.3 Time of receipt

A Notice given in the manner:

1. specified in cl 15.2(a) is deemed received at the time of delivery;

2. specified in cl 15.2(b) is deemed received three Business Days after (but exclusive of) the date of posting;

3. specified in cl 15.2(c) is deemed received:

   1. if sent between the hours of 9 am and 5 pm (local time) on a local working day, at the time of transmission; or

   2. if cl 15.3(c)(i) does not apply, at 9 am (local time) on the local working day most immediately after the time of sending.

For this purpose “local time” is the time in the place of receipt of the Notice, and a “local working day” is a normal working day in that place.

 15.4 Addresses

For the purposes of this clause the address details of each party are:

1. the details set out below; or

2. such other details as any party may notify to the others by Notice given in accordance with this clause.

MowBot Address:

Physical address: Unit 9, 1 Putaki Drive, Kumeu, 0810 , New Zealand

Postal address: Unit 9, 1 Putaki Drive, Kumeu, 0810 , New Zealand

Email address: admin@mowbot.co.nz 

16. Dispute Resolution

 

16.1 The parties will attempt to settle any dispute which arises in relation to the Services Agreement in good faith and within five working days of the dispute arising.

 16.2 If any dispute arises between the parties concerning the Services Agreement, which is not settled in accordance with the above sub-clause either party may, on giving written notice to the other party, refer the dispute to mediation. The mediator will be appointed by the parties, or failing agreement within ten working days of the notice referring the dispute to mediation, by the President of the Auckland District Law Society or his or her nominee.

17 General

17.1 Amendments

No

1. amendment to the Services Agreement;

2. agreement between the parties for the purpose of, or referred to in, the Services Agreement;

3. consent or approval for the purposes of, or referred to in, the Services Agreement;

is effective unless it is in writing and signed (if cls 17.1(a) or 17.1(b) apply) by both parties or (if cl 17.1(c) applies) the party required to give the consent or approval.

17.2 Counterparts

The Services Agreement may be signed in any number of counterparts, including facsimile or scanned PDF copies, all of which will together constitute one and the same instrument and a binding and enforceable agreement between the parties.

 17.3 Entire Agreement

These Terms and Conditions, together with the Services Agreement, constitute the entire agreement between the parties relating to the subject matter of the Services Agreement and supersedes and cancels any previous agreement, understanding or arrangement whether written or oral.

17.4 Further assurance

Each party shall make all applications, execute all documents and do or procure all other acts and things necessary to implement and to carry out its obligations under, and the intention of, the Services Agreement.

 17.5 No partnership, joint venture

Nothing in these Terms or Conditions or in the Services Agreement shall create 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 authority to act for, or to incur any obligation on behalf of the other party, except as expressly provided for in the Services Agreement.

17.6 Severance

If any provision of these Terms and Conditions and/or the Services Agreement is or becomes unenforceable, illegal or invalid for any reason it shall be deemed to be severed from the Terms and Conditions and/or the Services Agreement without affecting the validity of the remainder of the Terms and Conditions and/or the Services Agreement and shall not affect the enforceability, legality, validity or application of any other provision. 

17.7 Waiver

No failure or forbearance by a party to exercise, or delay in exercising, (in whole or in part) any right, power or remedy under, or in connection with, the Services  Agreement shall operate as a waiver of that right, power or remedy. A waiver of any breach of any provision of the Agreement 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. 

17.8 Governing law

The Services Agreement and these Terms and Conditions are governed by the laws of New Zealand and the parties submit to the non-exclusive jurisdiction of the courts of New Zealand in respect of any dispute or proceeding arising out of the Services Agreement.