TERMS AND CONDITIONS

Your access, downloading and use of the Website and/or OVERSEER is subject to these Terms and Conditions. There are two current versions of OVERSEER, available through the OVERSEER Website, one that can be used online and another that can be downloaded and used independently. Some of these Terms and Conditions apply only to one or other of the versions and should be read accordingly. These Terms and Conditions also apply to any subsequent or alternative versions of OVERSEER provided to you.



Please carefully read the following terms and conditions. By accessing, downloading or using OVERSEER or storing it on a computer hard drive you agree to be bound by these Terms and Conditions.

BACKGROUND

A. The Owners own the Intellectual Property Rights in OVERSEER;
B. The Owners have granted the Licensor the right to use and exploit the Intellectual Property Rights in OVERSEER.

1. DEFINITIONS AND INTERPRETATION

1.1 In these Terms and Conditions, the following words have the following meanings:

(a) Intellectual Property Rights means all intellectual property rights and industrial property rights of any nature whether conferred by statute, common law or equity, including without limitation, all rights in any patent, copyright, trade mark, design, database, circuit lay-out, know-how, trade secret, confidential information, or right of confidence including all such rights or similar rights in any invention, device, material, data, drawing, sample, method, process, text, algorithm, schematic, software, hardware, firmware, get-up, any other original works or materials, or any component of the same, and any application to register the same, whether or not registered or capable of registration;

(b) Licensor means Overseer Limited;

(c) OVERSEER means the OVERSEER® Nutrient Budgets application and the associated servers, data storage, files, software and all other material provided to you through the Website and includes the S-map Data;

(d) Owners mean Her Majesty the Queen in right of New Zealand acting by and through the Minister for Primary Industries, The New Zealand Phosphate Company Limited and AgResearch Limited;

(e) S-map Data means the s-map soils data licensed by Landcare Research
New Zealand Limited to the Licensor for use in the OVERSEER Nutrient Budgets application;

(f) Terms and Conditions means the following terms and conditions between the Licensor and you relating to your access, downloading and use of the Website and/or OVERSEER (and including the Privacy Policy);

(g) User means the individual users of the Website and/or OVERSEER; and

(h) you or your means any User.

(i) Website means the website currently accessed via www.OVERSEER.org.nz and all replacement or associated websites developed by or for the Licensor for access to OVERSEER from time to time.

1.2 References to any statute or statutory provision includes a reference to that statute or statutory provision as from time to time amended, extended, re-enacted or consolidated and to all statutory instruments made pursuant to it.

1.3 A reference to a party includes reference to that party’s successors in title and permitted assigns.

1.4 Words denoting the singular will include the plural and vice versa.

1.5 The words “include” and “including” are deemed to be followed by the words “without limitation”.

1.6 An agreement, covenant or undertaking on the part of or in favour of 2 or more persons binds or is for the benefit of them jointly and severally;

1.7 Person includes a natural person, company, corporation or other entity.

1.8 Any reference to currency is a reference to New Zealand currency.

2. TERMS AND CONDITIONS

2.1 These Terms and Conditions form the agreement between you and the Licensor and apply to your access, downloading and use of the Website and/or OVERSEER.

2.2 BY USING THE WEBSITE AND/OR OVERSEER, YOU AGREE TO COMPLY WITH THESE TERMS AND CONDITIONS. IF YOU DO NOT AGREE, DO NOT USE THE WEBSITE AND/OR OVERSEER.

2.3 The Licensor reserves the right, at its sole discretion, to change, modify, add or remove any portion of these Terms and Conditions, at any time. Any changes to the Terms and Conditions shall be effective as soon they are notified by publishing them on the Website.

2.4 It is your responsibility to check the Terms and Conditions from time to time for any changes and your continued use of the Website and/or OVERSEER following the notification of any changes deems your acceptance to the revised Terms and Conditions.

2.5 On occasion you may be prompted to click “I Accept” in relation to the Terms and Conditions. If prompted and you do not accept the Terms and Conditions, you must not click “I Accept” and you must not access, download or use the Website and/or OVERSEER.

3. LICENCE

In consideration of you agreeing to abide by these Terms and Conditions, the Licensor hereby grants to you a non-exclusive, non-transferable licence to use OVERSEER in accordance with the Terms and Conditions.

3.1 Currently, the Licensor does not charge a license fee for you to download and use OVERSEER. However, this position is subject to change upon 1 month’s notification by the Licensor either to you or published on the Website. Such fees may relate to all use, or selected categories of use or User, of OVERSEER. If you do not agree to any imposed license fee, you must cease all use of OVERSEER from the date that any license fee becomes applicable.

3.2 You may:

(a) download and use OVERSEER in object code form for your normal internal business purposes only;

(b) receive and use any supplementary software, update or revision of OVERSEER including patches and corrections of errors as may be provided by the Licensor from time to time at its discretion;

(c) use any associated documentation provided by the Licensor relating to the access downloading and use of OVERSEER; and

(d) use outputs from OVERSEER in other software programs (such as Microsoft Excel) for the purpose of analysis of those outputs and may allow others to do the same as long as the use of OVERSEER in developing those outputs is acknowledged in any publication (in whatever form) of any such analysis.

3.3 Except as expressly set out in these Terms and Conditions, you may not:

(a) alter OVERSEER in any way, including changing or removing any messages or windows;

(b) reproduce or copy all or any of OVERSEER except for one backup copy of any version that is not web based, without the written consent of the Licensor;

(c) sell, rent, lease, loan or otherwise deal in OVERSEER or any material provided by the Licensor in association with OVERSEER or give others access to OVERSEER or that material;

(d) adapt, merge, alter, vary or modify the whole or any part of OVERSEER or permit any part of it to be combined with, or become incorporated in, any other programmes, subject to clause 3.5;

(e) reverse engineer, decompile, disassemble or create derivative works based on the whole or part of OVERSEER; or

(f) extract or copy in bulk any S-map soils data provided as part of OVERSEER xml files.

3.4 For the avoidance of doubt, if you wish to incorporate, merge, combine or connect OVERSEER (or any part of OVERSEER) into another software application a written request for consent must be provided to the Licensor. The Licensor has unfettered discretion to determine:

(a) whether it consents to the request; and

(b) whether any additional or replacement software licence is required;

for any incorporation, merger, combination or connection of OVERSEER (or any part of OVERSEER) to any other software application.

3.5 You must ensure that:

(a) all copies of OVERSEER are secure and that you maintain accurate and up to date records of the number and locations of all copies of OVERSEER; and

(b) you adequately supervise and control use of OVERSEER and ensure that OVERSEER is used by your employees and representatives at all times in accordance with these Terms and Conditions.

4. REGISTRATION AS A USER

4.1 In order to:

(a) access, download and/or use OVERSEER; or

(b) have access to the OVERSEER online helpdesk via the Website;

you must first register for a User account.

4.2 By registering for a User account, you agree:

(a) to provide full, honest, accurate and complete information;

(b) to not use another person’s account details and passwords;

(c) that you are solely responsible for any activity occurring in relation to your account;

(d) at all times to keep your account access and password details secure and confidential;

(e) to immediately notify the Licensor of any breach of security or unauthorised use of your account; and

(f) that the Licensor will not be liable to you for any cost, loss, expense or damage (howsoever caused) by any breach of security or unauthorised use of your account.

5. INTELLECTUAL PROPERTY

5.1 You acknowledge that:

(a) all Intellectual Property Rights in the Website, OVERSEER and any documentation associated with OVERSEER, belongs to the Licensor including all copyright existing in OVERSEER;

(b) any rights to use OVERSEER (including any Intellectual Property Rights) are licensed (not sold) to you; and

(c) you have no rights in, or to, the Website, OVERSEER or its associated documentation other than the right to use them in accordance with these Terms and Conditions.

5.2 You acknowledge that you have no right to access OVERSEER in source code form.

5.3 OVERSEER® is a registered trade mark of the Licensor. No license is granted to use that trade mark or any other trade mark contained in OVERSEER for any purpose and therefore you must not use those trade marks to describe any other products or services whether similar or not to OVERSEER.

6. DISCLAIMER

6.1 OVERSEER, its associated documentation and all other material provided to you through the Website are provided "AS IS" and without warranties of any kind either express or implied. By using OVERSEER, its associated documentation and/or any other material provided to you through the Website, you agree that you are using it, and its outputs, at your sole risk and that OVERSEER, its associated documentation, the Website and/or any other material is not a substitute for specialised advice or testing.

6.2 While the Licensor has made all reasonable efforts to ensure that OVERSEER has been properly developed, the Licensor does not make any promises or guarantees that OVERSEER is error, bug or virus free or that OVERSEER or the outputs of OVERSEER are suitable for any particular purpose.

6.3 You acknowledge that OVERSEER has been developed from available New Zealand farming data. No representation is made regarding its applicability in any other country or circumstance not covered by that data.

6.4 While the Licensor has made all reasonable efforts to ensure that:

(a) the Website is available;

(b) OVERSEER is available for download or use online; and

(c) the OVERSEER online helpdesk is available to Users who have registered an account;

the Licensor cannot guarantee that any of those will be accessible, uninterrupted or that your access will be error-free, or that any files available for download will be error-free or free from viruses, faults or defects.

6.5 The Website may contain links to third party websites which are not owned or controlled by the Licensor. These links or references are for your convenience only. The Licensor has no control over, and has no liability for, the content or other elements associated with such third party websites.

6.6 Without limiting the above, to the fullest extent permissible and subject to applicable law, the Licensor disclaims all warranties and representations express or implied, in relation to OVERSEER, the outputs of OVERSEER and any other material provided through the Website including, but not limited to, warranties of merchantability, fitness for a particular purpose, non infringement, quality or performance and representations regarding correctness, accuracy or reliability.

6.7 The Licensor and you agree that the Licensor is supplying and you are acquiring OVERSEER, its associated documentation and any other material provided through the Website in trade, and that the Consumer Guarantees Act 1993 will not apply to such supplies and that it is fair and reasonable that the parties are bound by this provision.

6.8 By using any version of OVERSEER other than the most currently version(s) available through the OVERSEER Website, you acknowledge that any such version may: have date expiry restrictions, have errors, conflict with other software or hardware, produce results that are inconsistent with the most current scientific knowledge and may not provide for some nutrient management practices that may be taken into account in the latest version.

7. TERMINATION

7.1 The Licensor reserves the right, at its sole and unfettered discretion, to restrict or terminate use of OVERSEER by you, any person or organisation for any reason at any time.

7.2 Without limiting clause 7.1, the Licensor may immediately terminate your licence to download and/or use OVERSEER if you:

(a) breach any of the terms of these Terms and Conditions;

(b) use OVERSEER for an illegal or improper purpose as determined by the Licensor; or

(c) use OVERSEER in a way which the Licensor considers may put either OVERSEER or the Licensor or the Owners into disrepute.

7.3 Any termination of your rights to use OVERSEER pursuant to clauses 7.1 or 7.2 shall be notified to you in writing either personally and/or via a notice on the Website.

7.4 The Licensor shall be entitled to discontinue OVERSEER at any time and at which point your rights under these Terms and Conditions shall be deemed to have terminated.

7.5 Upon termination for any reason:

(a) all rights granted to you under these Terms and Conditions including the license granted to you to download and use OVERSEER, shall cease;

(b) you must cease all activities authorised by these Terms and Conditions; and

(c) you must immediately delete or remove OVERSEER from all computer equipment in your possession and immediately destroy or return to the Licensor (at the Licensor’s option) all copies of OVERSEER then in your possession, custody or control and, in the case of destruction, certify to the Licensor that you have done so.

8. LIABILITY

8.1 In no circumstances shall the Licensor or the Owners, or Landcare Research
New Zealand Limited as the provider of S-map Data to OVERSEER be liable to you under or in connection with these Terms and Conditions, or in connection with OVERSEER, the Website, including any advice contained in the Website, or any associated documentation provided to you, in any circumstance whatsoever (including termination of your rights under these Terms and Conditions), whether in contract, tort (including for negligence) or otherwise, including for any:

(a) loss of profit, loss of revenue, loss of business or other form of economic loss;

(b) form of indirect, consequential or special loss or damage;

(c) loss or damage caused by any decision made by you or action taken or not taken by you in reliance of OVERSEER, the Website, any associated documentation, or any output of OVERSEER or the Website; or

(d) loss of or damage to data.

If, notwithstanding clause 8.1, the Licensor or any of the Owners or Landcare Research New Zealand Limited are found liable under or in connection with these Terms and Conditions, or in connection with OVERSEER, the Website or any associated documentation by an authority of competent jurisdiction, then all of the Licensor’s, the Owners’ and Landcare Research New Zealand Limited’s total aggregate liability to you and all those claiming through you shall not exceed $1,000.

9. DATA and DATA BACKUP

9.1 The web-based version of OVERSEER allows you to store data you input to, and generate from the use of, OVERSEER. Any data you store on the servers comprising part of OVERSEER will belong to you with the exception of S-map Data, which you may only use for purposes pertaining directly to OVERSEER. Use of S-map Data
for any other purpose without the prior written consent of Landcare Research
New Zealand Limited is prohibited.

9.2 You grant the Licensor an irrevocable, royalty free, transferable and world-wide licence to use the data you store on the servers pursuant to clause 9.1 and any data generated by your use of OVERSEER for the purposes of testing, assessing, operating, maintaining and improving OVERSEER and the OVERSEER experience.

9.3 There are risks with storing data on computers. The Licensor takes no responsibility whatsoever for any damage suffered in respect of data or information stored on the OVERSEER servers or your computer, including any corruption, loss or infection of such data or information.

9.4 You are responsible for backing up any data you store on the servers or on your own computer.

10. CONFIDENTIALITY

10.1 The Licensor will take every reasonable precaution to ensure the confidentiality of information stored on the servers. The Licensor cannot, however, guarantee that unauthorised access will not occur and therefore, takes no responsibility whatsoever for any damage suffered in respect of the disclosure or unauthorised copying of data or information stored on the servers or any other information disclosed in relation to OVERSEER.

11. NOTICE

11.1 Any notice the Licensor gives to you shall be deemed received and properly served immediately when posted on the Website, 24 hours after an email has been sent or 3 days after the date of posting of any letter. Your email and address details shall be provided to the Licensor when you register a User account.

12. GENERAL

12.1 You may not assign your rights and obligations under these Terms and Conditions without the prior written consent of the Licensor, to be given in its sole discretion. The Licensor shall be entitled to assign its rights and obligations under these Terms and Conditions upon written notice posted on the Website. Written notice is not required pursuant to clause 1.3.

12.2 You acknowledge that you have not relied on any statement, promise or representation made or given by the Licensor other than those set out in these Terms and Conditions.

12.3 In the event that any one or more of the provisions of these Terms and Conditions are declared invalid by any Court of competent jurisdiction, these Terms and Conditions will be read as if such provision had not been inserted.

12.4 These Terms and Conditions constitute the entire agreement between the parties relating to its subject matter and replace any prior agreements or undertakings between them.

12.5 No right under these Terms and Conditions will be deemed to be waived except by notice in writing signed by each party. A waiver does not prejudice rights in respect of any subsequent breach.

12.6 The obligations in these Terms and Conditions intended to survive termination shall remain enforceable to the fullest extent not withstanding termination.

12.7 These Terms and Conditions are governed by the laws of New Zealand and the parties agree to submit to the non-exclusive jurisdiction of the Courts of
New Zealand.