FarmIQ User Terms and Conditions

Version 5 - effective from 1 September 2016

  1. Introduction
  2. Registration
  3. Subscription Period
  4. Provision of FarmIQ Service and App
  5. Your Responsibilities
  6. Our Responsibilities
  7. Data
  8. Third Party Products
  9. Updates to Subscription Package
  10. Fees and Payment
  11. Intellectual Property Ownership
  12. Indemnities
  13. Liability and Disclaimers
  14. Suspension
  15. Termination
  16. Amendments
  17. General
  18. Definitions and Interpretation
  1. INTRODUCTION

    1. FarmIQ Service:

      FarmIQ Systems Limited (referred to in these Terms as we, us and our) provides a suite of farm management software packs. The FarmIQ Packs, and the related systems we use to store data and provide access to the FarmIQ Packs, are referred to generally as the "FarmIQ System". The FarmIQ System is hosted by our hosting provider and made available to users as an online service via an internet browser. A subscription for the FarmIQ Service will only include access to the FarmIQ Packs included in the relevant Subscription Package.

    2. Application of Terms:

      These Terms set out the basis on which we will provide and support, and you may access and use, the FarmIQ Service and the FarmIQ App. You must accept these Terms as part of the Registration Application process and, by accessing and using the FarmIQ Service, you are deemed to have confirmed your acceptance of these Terms.

  2. REGISTRATION

    1. Registration Application Required:

      To access and use the FarmIQ Service, you will need to complete our Registration Application process. If you require us to provide, as part of the FarmIQ Service, separate instances of the relevant FarmIQ Packs for use in connection with different farms or groups of farms, you will require a separate Subscription Package for each such farm or group of farms.

    2. Response to Registration Application:

      We reserve the right (at our absolute discretion) to decline your Registration Application, in which case you will not be entitled to access or use the FarmIQ Service or the FarmIQ App. If we accept your Registration Application, we will provide confirmation by email (which will result in the formation of a contract between us and you).

    3. Accuracy of Information:

      You warrant that all information you submit as part of your Registration Application is correct and accurate. You must notify us if any of the details provided in your Registration Application change.

    4. Registered Users:

      If we accept your Registration Application, you may register any of your staff at your Registered Farms and/or any of your external consultants, advisers, suppliers or vets to use the FarmIQ Service in relation to the relevant Registered Farms (each such registered person being a Registered User). You:

      (a)must ensure that your Registered Users comply with all provisions of these Terms applicable to you as if they were a party to these Terms;

      (b)are responsible for all use of the FarmIQ Service and FarmIQ App through the registrations and passwords of your Registered Users as if such use was use by you; and

      (c)acknowledge that we will not be responsible for any misuse of the FarmIQ Service or FarmIQ App by your Registered Users.

  3. SUBSCRIPTION PERIOD

    1. Commencement of Subscription Period:

      Your subscription for the FarmIQ Service will commence on the date that your access to the FarmIQ Service is first established.

    2. Trial Period:

      If your Subscription Package included a trial period for the FarmIQ Service (Trial Period), your subscription for the FarmIQ Service will terminate at the end of the Trial Period, unless terminated earlier in accordance with clause 15 or you have upgraded that Subscription Package to a Standard Subscription Package in accordance with clause 9.

    3. Initial Subscription Period:

      If you have selected a Standard Subscription Package or upgraded to a Standard Subscription Package following a Trial Period, your subscription for the FarmIQ Service will continue for the initial subscription period applicable to that Subscription Package. (Initial Subscription Period), unless:

    4. (a)terminated earlier in accordance with clause 3.5, 3.6 or 15; or

      (b)that Subscription Package includes an option for you to terminate the subscription after, or within, a particular period during the Initial Subscription Period, and you provide notice of such termination in accordance with the requirements of that option.

    5. Automatic Renewals:

      Following the expiry of the Initial Subscription Period, your subscription for the FarmIQ Service will continue to renew in perpetuity for successive 12 month periods (each a Renewal Period), unless terminated earlier in accordance with clause 3.5, 3.6 or 15 or you or we terminate your subscription, with effect from the end of the Initial Subscription Period or a Renewal Period, by providing notice at least 20 Business Days prior to the expiry of the Initial Subscription Period or then current Renewal Period. We will provide you with advance notice of the upcoming expiry of the Initial Subscription Period and each Renewal Period (which notice will be given not later than 25 Business Days, but not earlier than 60 Business Days, prior to the expiry of the Initial Subscription Period or the relevant Renewal Period).

    6. Early Termination following Sale of Registered Farm(s):

      If you sell your Registered Farms and no longer require access to the FarmIQ Service, you may terminate your subscription for the FarmIQ Service by giving us 20 Business Days' prior notice to that effect. If your Subscription Package provides for monthly subscription fee payments and you terminate your subscription in accordance with this clause, you must pay to us:

      (a)the monthly subscription fee in full for the month in which the termination takes effect (Termination Month); and

      (b)if the Termination Month was:

      (i)more than 1 month, but less than 3 months, prior to the expiry of the Initial Subscription Period or the then current Renewal Period (as applicable), 25% of the monthly subscription fees which would have been payable in respect of the months (excluding the Termination Month) remaining in that period; or

      (ii)more than 3 months prior to the expiry of the Initial Subscription Period or the then current Renewal Period (as applicable), 25% of the monthly subscription fees which would have been payable in respect of the last 3 remaining months in that period plus 50% of all other monthly subscription fees which would have been payable in respect of the other months (excluding the Termination Month) remaining in that period. If your Subscription Package provides for annual subscription fee payments and you terminate your subscription in accordance with this clause, you must still pay us the annual subscription fee for the year in which termination takes effect. If you have already paid the annual subscription fee, you will not be entitled to any refund.

    7. Other Early Termination:

      If you wish to terminate your subscription for the FarmIQ Service part way through the Initial Subscription Period or any Renewal Period other than in accordance with clause 3.3(b), 3.5 or 15, you may only do so if you contact us and pay all of the subscription fees payable in respect of the remainder of that period.

    8. Multiple Subscriptions:

      If you have multiple Subscription Packages:

      (a)clauses 3.1 to 3.6 will apply separately to each Subscription Package, and references in those clauses to any commencement, termination or renewal of a subscription will be read as references to the commencement, termination or renewal of the subscription for the relevant Subscription Package;

      (b)any termination under clause 3.3(b), 3.4, 3.5 or 3.6 must specify the subscription(s) to which it applies; and

      (c)and some, but not all, of your subscriptions are terminated under clause 3.3(b), 3.4, 3.5 or 3.6, the provisions of clauses 15.3(a) to 15.3(e) (inclusive) will apply in respect of the terminated subscription(s), and references in those clauses to FarmIQ Service, FarmIQ App, Farm Data and Generated Farm Data will be read as references to the FarmIQ Service, FarmIQ App, Farm Data and Generated Farm Data insofar as they relate to the Registered Farms applicable to the terminated subscription(s).

  4. PROVISION OF FarmIQ SERVICE AND APP

    1. FarmIQ Service:

      Subject to these Terms, we will provide the FarmIQ Service to you during the Subscription Period. You acknowledge that:

      (a)the FarmIQ Service provided to you will include access to only those FarmIQ Packs which are Subscribed Packs;

      (b)the functionality provided by, and the scope of, your Subscribed Packs will be limited to that as described in the applicable FarmIQ Pack Descriptions;

      (c)we do not provide you with internet access or any computer equipment or software required to access the FarmIQ Service; and;

      (d)we may change the FarmIQ Service from time to time to provide bug fixes and/or new, replacement or improved features or functionality.

    2. Additional Services:

      We may also from time to time offer additional services relating to the FarmIQ Service, such as training workshops, farm map set-ups and FarmIQ System planning and advice. An additional service may only be available to users whose Subscription Package includes access to that additional service. If your Subscription Package includes access to an additional service, you may request that service as part of the Registration Application process or by contacting us. We will be under no obligation to provide an additional service until we have provided notice confirming our acceptance of your request.

    3. FarmIQ App:

      You may download the FarmIQ App on any number of mobile devices. Details of how to download the FarmIQ App will be available on our Website. You acknowledge that:

      (a)the FarmIQ App you download will only allow data input for those FarmIQ Packs which are Subscribed Packs;

      (b)we do not provide you with internet access or any device required to access the FarmIQ App; and

      (c)the FarmIQ App has been designed to operate on mobile devices running on those versions of the operating system(s) specified on our Website from time to time.

    4. FarmIQ App Updates:

      We may from time to time (at our absolute discretion) make available updated or new versions of the FarmIQ App, including to provide bug fixes and/or new, replacement or improved features or functionality (App Updates). You acknowledge that:

      (a)any failure by you to download an App Update may result in your use of the FarmIQ App being subject to interruptions or errors; and

      (b)an App Update may require you to run a more recent version of the relevant operating system (as specified on our Website from time to time).

    5. Grants of Rights:

      Subject to these Terms, in respect of each of your Subscription Packages, we grant you and your Registered Users a non-exclusive, non-transferable, non-sub-licensable right to use the FarmIQ Service, and licence to use the FarmIQ App, during the Subscription Period solely in connection with the management and operation of the Registered Farms to which the Subscription Package relates (Permitted Purpose).

  5. YOUR RESPONSIBILITIES

    You must:

    1. No Other Use:

      not use the FarmIQ Service or the FarmIQ App for any purpose other than the Permitted Purpose;

    2. Log-in and Password:

      keep your log-in name and password secure and secret, and ensure that all your Registered Users keep their log-in names and passwords secure and secret, and notify us immediately if you become aware of any unauthorised person accessing the FarmIQ Service or the FarmIQ App using your or any of your Registered Users' log-in names and passwords, so that we may reset the relevant password(s);

    3. Access:

      not permit anyone other than you and your Registered Users to access or use the FarmIQ Service or the FarmIQ App without our prior written consent;

    4. Instructions:

      comply with our reasonable instructions relating to access to, and use of, the FarmIQ Service and FarmIQ App;

    5. Laws:

      comply with all applicable laws when accessing and using the FarmIQ Service and FarmIQ App;

    6. No Dealings:

      not sub-license, assign, transfer, lease, rent, distribute or resell the FarmIQ Service or the FarmIQ App, or any rights to access or use the FarmIQ Service or the FarmIQ App, to any other person;

    7. Copy or Modify etc:

      not, except as and to the extent permitted by law, copy, reproduce, translate, adapt, modify or create derivative works of any FarmIQ Pack or the FarmIQ App by any means or in any form without our prior written consent;

    8. Merge:

      not merge any FarmIQ Pack or the FarmIQ App with any other software without our prior written consent;

    9. Reverse Engineering:

      not reverse assemble or decompile the whole or any part of any FarmIQ Pack or the FarmIQ App; and

    10. Tests:

      not publish the results of any tests run with respect to the FarmIQ Service or FarmIQ App without our prior written consent.

  6. OUR RESPONSIBILITIES

    1. Care, Skill and Diligence:

      We will, in providing the FarmIQ Service and any other services under these Terms, act with due care, skill and diligence.

    2. FarmIQ Service Availability:

      We will use reasonable endeavours to ensure that the FarmIQ Service is available and providing (in all material respects) the functionality described in the applicable FarmIQ Pack Descriptions at all times other than when we need to suspend access to the FarmIQ Service in order to carry out any software upgrades or other maintenance. However, we do not guarantee that your access to, or use of, the FarmIQ Service or the FarmIQ App will be uninterrupted, error-free or virus-free.

    3. Notice of Planned Unavailability:

      We will give advance notice of any planned FarmIQ Service unavailability or outage by email or via the FarmIQ System.

    4. Help Desk Support:

      We will operate a help desk staffed with trained personnel to respond to questions, problems or faults asked or reported by users of the FarmIQ Service whose Subscription Package includes access to help desk support services. If your Subscription Package includes access to help desk support services, you may contact our help desk by email at any time or by calling during Business Hours. Our help desk contact details are listed on our Website.

  7. DATA

    1. Input of Farm Data:

      You must take reasonable steps to ensure that all Farm Data you enter into the FarmIQ System (whether by using the FarmIQ Service or FarmIQ App) is correct and accurate.

      (a)You must (where practicable) run suitable anti-virus software. We will also use virus detection software, however we do not guarantee that any of your files stored in the FarmIQ System will be virus-free.

      (b)You acknowledge and agree that we will have access to, and will be able to view, such files and the Farm Data on them.

      (c)You must ensure that the files do not contain any content which infringes another person's Intellectual Property or which is offensive, obscene, defamatory, discriminatory, inappropriate or contrary to any applicable laws. In the event that you breach this clause, without limiting any of our other rights or remedies, we may remove the relevant files or content from the FarmIQ System.

      (d)You acknowledge and agree that you will be allocated limited file storage capacity, as specified in your Subscription Package.

    2. Sourcing Farm Data from Third Parties:

      We may collect your Farm Data from a third party, such as a livestock processor or fertiliser supplier and enter that Farm Data into the FarmIQ System, if:

      (a)we have a data sharing or licence arrangement in place with that third party; and

      (b)your FarmIQ Service settings provide, or you have otherwise confirmed, that you authorise us to collect that Farm Data from that third party and you agree to pay our applicable fees (if any) for collecting and entering that Farm Data into the FarmIQ System.

    3. We may also receive Farm Data from a Third Party Product Provider in the manner contemplated by clause 8.

    4. No Liability for Farm Data Sourced from Third Parties:

      We will not be responsible or liable for any Losses suffered or incurred by you as a result of any Farm Data which we source from a third party under clause 7.2 or 8 and enter into the FarmIQ System being incorrect or incomplete.

    5. Data Ownership:

      As between you and us, you own all Intellectual Property in your Farm Data and any information or data the FarmIQ Service generates for you based solely on the input of your Farm Data (Generated Farm Data).

    6. Third Party Rights:

      Nothing in these Terms will affect any rights a third party may have in your Farm Data and/or Generated Farm Data. As such we do not guarantee or warrant that the rights provided to you under clause 7.4 will result in you owning, as against third parties, any Intellectual Property in your Farm Data or Generated Farm Data.

    7. Data Licences:

      You grant to us a non-exclusive, worldwide, perpetual, sub-licensable licence to use, store, modify and copy:

      (a)your Farm Data and Generated Farm Data in order to provide the FarmIQ Service and FarmIQ App to you and to exercise or enforce any of our rights and remedies under these Terms; and

      (b)your Farm Data in order to aggregate that Farm Data with other data (including data relating to other FarmIQ Service users, their farms and/or their livestock).

    8. Sharing Your Data

      We will not disclose or share your Farm Data or Generated Farm Data held in the FarmIQ System except:

      (a)where we are required by law to do so;

      (b)to our subcontractors (including our hosting provider) or as otherwise reasonably required to provide the FarmIQ Service to you;

      (c)to any person to whom we assign, or are proposing to assign, any of our rights under these Terms;

      (d)to the extent that it forms part of Aggregated Data and that Aggregated Data is being disclosed or shared in accordance with clause 7.9;

      (e)as required to enable you to communicate, directly or indirectly, with third parties via the FarmIQ System, including where you elect to share your Farm Data and/or Generated Farm Data with other FarmIQ Service users; or

      (f)where your FarmIQ Service settings provide that we may disclose or share, or you have otherwise consented to us disclosing or sharing, your Farm Data or Generated Farm Data to or with a third party, such as a livestock processor, fertiliser supplier or Third Party Product Provider as contemplated by clause 8.

    9. Data Hosting:

      Your Farm Data and Generated Farm Data stored in the FarmIQ System will be hosted on our hosting provider's servers. While we have entered into appropriate arrangements requiring our hosting provider to keep your Farm Data and Generated Farm Data secure and confidential (further information relating to our hosting, security and disaster recovery arrangements and policies are provided on our Website), we cannot guarantee that there will never be, and accordingly will not be liable to you for, any unauthorised access to, or loss of, your Farm Data and/or Generated Farm Data.

    10. Aggregated Data:

      As between you and us, we own all Intellectual Property arising from our creation of the Aggregated Data and in the Aggregated Data itself. The following provisions apply to the use of Aggregated Data:

      (a)Subject to clauses 7.9(b) and 7.9(c), we may publish, disclose, provide, use, license, sell, distribute and exploit the Aggregated Data in any form and in any manner.

      (b)We will not publish, disclose or provide any Aggregated Data in a form where you or your Registered Farms are specifically identified.

      (c)We will also take reasonable steps to ensure that your Farm Data and Generated Farm Data cannot readily be identified in, or extracted from, the Aggregated Data. If you can demonstrate to our satisfaction that your Farm Data or Generated Farm Data can be identified in, or extracted from, the Aggregated Data, we will take reasonable steps to correct this.

      (d)You and your Registered Users may use Aggregated Data for the Permitted Purpose. You may not otherwise use or publish, disclose, provide, license, sell, distribute or exploit the Aggregated Data.

    11. Personal Information:

      Our collection, use, disclosure and retention of any personal information relating to you and your Registered Users will be governed by our privacy policy available on our Website.

  8. THIRD PARTY PRODUCTS

    1. Interfaces with Third Party Products:

      We may from time to time develop interfaces to link the FarmIQ System with other third party accounting, financial or other products (each a Third Party Product), to enable the automated exchange of data between the FarmIQ System and the Third Party Product.

    2. Enable Data Exchange:

      If you use a Third Party Product, subject to clause 8.3, you may request that we enable the automated exchange of data so as to allow:

      (a)(a) any relevant Farm Data you enter into the FarmIQ System to be automatically entered into your Third Party Product account or instance; and

      (b)(b) any relevant data you enter into your Third Party Product account or instance to be automatically entered into the FarmIQ System.

    3. Acknowledgments:

      You acknowledge that:

      (a)It is your responsibility to maintain an account or licence for the Third Party Product with the provider of the Third Party Product (Third Party Product Provider).

      (b)We accept no responsibility or liability for any Losses suffered or incurred by you in relation to the operation of, or results, information or data provided or produced by, the Third Party Product, including in relation to Farm Data entered into the Third Party Product. Our sole responsibility is to provide applicable Farm Data to the interface with the Third Party Product.

      (c)It is the Third Party Product Provider's responsibility to enable relevant data entered into the Third Party Product to be provided to the interface with the FarmIQ System. We have no control over this and do not accept any responsibility or liability for any Losses suffered or incurred by you as a result of any such data not being provided, or being provided in a corrupted or incorrect form, to the interface with the FarmIQ System.

      (d)We may, at any time and without prior notice, cease to maintain an interface with a Third Party Product or otherwise cease to exchange data with a Third Party Product.

  9. UPDATES TO SUBSCRIPTION PACKAGE

    1. Subscription Package Upgrades:

      You may request an upgrade to your Subscription Package (for example, to add additional FarmIQ Packs or access to help desk support services) at any time by contacting us.

    2. Subscription Package Downgrades:

      Unless your Subscription Package prohibits downgrades, you may request a downgrade to your Subscription Package with effect from the end of the Initial Subscription Period or the end of any Renewal Period. You must contact us with any such request at least 20 Business Days prior to the expiry of the Initial Subscription Period or current Renewal Period (as applicable).

    3. Fees following Upgrade/Downgrade:

      If you:

      (a)Upgrade or downgrade your Subscription Package in accordance with clause 9.1 or 9.2, the subscription fees you are required to pay for access to the FarmIQ Service will be adjusted, with effect from the date that the upgrade or downgrade first applies, based on the fee or rate applicable to the Subscription Package that you have upgraded or downgraded to (as the case may be); and/or

      (b)Upgrade your Subscription Package to include access to help desk support services in accordance with clause 9.1, additional fees for help desk support services, as set out on our Website, will apply.

  10. FEES AND PAYMENT

    1. FarmIQ Service Fees:

      You must pay us the subscription fees applicable to your Subscription Package for access to the FarmIQ Service. Subject to clause 10.5 if your Subscription Package provides for the subscription fees to be determined by applying the applicable fee, or rate for your Subscription Package to the number of stock units at your Registered Farms as at the 30th of June (or such other date that you and we agree in writing) immediately prior to the commencement of the Initial Subscription Period, or the relevant Renewal Period (as the case may be) (each a Stock Unit Count), then the following provisions apply:

      (a)The Stock Unit Count to be used for determining the subscription fees for the Initial Subscription Period will be that which you provided as part of the Registration Application process. For the purposes of determining the subscription fees for each Renewal Period, you must provide a Stock Unit Count at least one month prior to the commencement of the Renewal Period or, if the Renewal Period commences within one month of the date on which your Stock Unit Count is taken, within 20 days of that date (in which case) if the subscription fees are invoiced and payable on a monthly basis, our first monthly invoice for the Renewal Period may include a subscription fee at the same level which applied during the Initial Subscription Period or the previous Renewal Period (as the case may be), with an adjustment for the applicable amount to be applied to the second monthly invoice for that Renewal Period).

      (b)If you fail to provide a Stock Unit Count for a Renewal Period as required under clause 10.1(a), we may (at our discretion):

      (i)keep your subscription fees at the same level which applied during the Initial Subscription Period or the previous Renewal Period (as the case may be); or

      (ii)estimate the applicable Stock Unit Count based on the information we have and use that estimate to determine the subscription fees for the relevant Renewal Period.

      (c)We may use your Farm Data entered into the FarmIQ System, and you must provide us with access to any other documents, records and information we may reasonably request, in order to estimate, check or verify your Stock Unit Counts.

      (d)If, at any time, we believe (acting reasonably) that you have underreported a Stock Unit Count, we may immediately increase your subscription fee to the applicable amount based on our reasonable estimation of your actual Stock Unit Count, and charge you for the difference between the total subscription fees previously invoiced in respect of the Initial Subscription Period or the relevant Renewal Period (as the case may be) and what those fees would have been had they been at the increased amount.

      (e)If you have multiple Subscription Packages, the above provisions will apply separately to each Subscription Package, and references in those provisions to the actual number of stock units at your Registered Farms and your Stock Unit Count will be read as references to the actual number of stock units at, and your Stock Unit Count for, the Registered Farm(s) applicable to the relevant Subscription Package.

    2. Fees for Additional Services and Help Desk Support Services:

      Our fees for the provision of:

      (a) Any additional services relating to the FarmIQ Service, such as training workshops, farm map set-ups and FarmIQ System planning and advice, will be set out on our Website or advised to you prior to us providing those services.

      (b) Access to help desk support services will be as set out on our Website. For some Subscription Packages, access to help desk support services may be included as part of the subscription fees, while for other Subscription Packages access to help desk support services may be an optional addition for which additional fees apply.

    3. FarmIQ App Fees:

      We reserve the right to charge a fee for each instance of the FarmIQ App used by you and your Registered Users to submit Farm Data. We will advise you of any such fee in advance on the basis that it would commence from the start of the next Renewal Period, and you will have the option to refrain from using the FarmIQ App to submit Farm Data (in which case the fee will not apply).

    4. Fees for Collection of Data from Third Parties:

      In some cases fees will apply for us to collect your Farm Data from a third party and enter that Farm Data into the FarmIQ System. Any such fees will be set out on our Website or advised to you at the time you request us to collect your Farm Data from the relevant third party.

    5. Fee Increases:

      We may increase any of our fees or alter the basis on which they are calculated with effect from the start of any Renewal Period, by providing notice at least 30 Business Days prior to the start of that Renewal Period.

    6. GST Exclusive:

      Unless stated otherwise, all fees and charges stated on our Website or advised to you will be exclusive of GST.

    7. Invoicing:

      Unless your Subscription Package provides or you and we agree otherwise, we will invoice you for all fees of a fixed, recurring nature in advance and all other fees once we have provided the relevant service. Each invoice will be issued electronically and will be a valid tax invoice for GST purposes.

    8. Payment:

      You must pay each invoice for fees or charges under these Terms in full by the payment due date specified on the invoice (which will be at least 10 Business Days after the date of the invoice).

    9. Default Interest:

      If you fail to pay an invoice in full by the due date, the overdue amount will bear default interest until the date on which payment of the overdue amount is made in full. Default interest will accrue and be calculated on a daily basis at 10% per annum and will be compounded monthly.

    10. Debt Recovery Costs:

      You must reimburse us on a full indemnity basis for all costs reasonably incurred by us (including solicitor and/or collection agency costs) in attempting to recover from you any overdue fees or charges.

  11. INTELLECTUAL PROPERTY OWNERSHIP

    Subject to clauses 7.4 and 7.5, we (or our licensors) own all Intellectual Property in or relating to the FarmIQ System and the Website, including in the FarmIQ Packs and the FarmIQ App. We will also own any new Intellectual Property developed by or on behalf of us in course of providing the FarmIQ Service or supporting or maintaining the FarmIQ System.

  12. INDEMNITIES:

    1. Our Indemnity:

      We will indemnify you against any Losses awarded against you by a court, or which you are liable for under any settlement agreement approved by us in writing, in respect of any third party claim against you that your use of the FarmIQ Service or the FarmIQ App infringes any New Zealand patent or copyright of that third party. We will not be required to indemnify you under this clause if:

      (a)the claim has arisen, in part or full, from misconduct, negligence or breach of these Terms by you or any of your Registered Users;

      (b)the claim relates to infringement of copyright in your Farm Data and/or Generated Farm Data;

      (c)you fail to notify us in writing within 10 Business Days of the claim arising;

      (d)you fail to give us sole control of the defence of the claim and all related settlement negotiations; or

      (e)you fail to give us the assistance, information and authority necessary to defend and/or settle the claim.

    2. Your Indemnity:

      You will indemnify us against all Losses suffered or incurred by us as a direct or indirect result of a breach of these Terms by you or in connection with any third party claim against us that our use or storage, in accordance with these Terms, of any Farm Data or other content which you entered into the FarmIQ System infringes that third party's Intellectual Property or is otherwise offensive, obscene, defamatory, discriminatory, inappropriate or contrary to any applicable laws.

  13. LIABILITY AND DISCLAIMERS

    1. Liability Exclusions:

      We will have no liability to you under or in connection with these Terms (whether in contract, tort or otherwise) in respect of any:

      (a)indirect, consequential or special Losses suffered or incurred by you;

      (b)loss of data, profits, revenue, business or goodwill; or

      (c)Losses suffered or incurred by you, to the extent to which these result from any act or omission by you or your Registered Users (including any breach of these Terms or failure to enter complete and accurate Farm Data into the FarmIQ System).

    2. Limitation of Liability:

      In no event will our total liability to you under or in connection with these Terms (whether in contract, tort or otherwise) exceed the greater of $500 and the total fees paid by you to us under these Terms in the 12 months prior to the date on which your first claim under these Terms arose.

    3. Disclaimer:

      The FarmIQ Service and any related services we provide under clause 4.2 are intended to aid your planning for the management and operation of your Registered Farm(s), but:

      (a)we do not guarantee that the FarmIQ Service (including any of your Subscribed Packs) or any related services will be fit for your particular purpose or will comply with any applicable regulatory requirements; and

      (b)in no case should such services or the information they deliver be relied on as any form of professional farming advice.

      Any decisions you make in relation to your Registered Farm(s) are your sole responsibility, and we will not be liable for any Losses suffered or incurred by you as a result of such decisions.

    4. Warranties Excluded:

      To the extent permitted by law, we disclaim and exclude all representations, warranties and conditions, whether express, implied or statutory, relating to the FarmIQ System, the FarmIQ Service, the FarmIQ App and any other services we supply to you under these Terms, other than those representations, warranties and conditions identified expressly in these Terms.

  14. SUSPENSION

    1. Suspension of Access to FarmIQ Service:

      We may suspend your, or any or all of your Register Users', access to the FarmIQ Service if:

      (a)any fees or charges payable by you under these Terms are at least 10 Business Days overdue for payment; or

      (b)you have committed a material breach of these Terms,

      and you have failed to pay those fees or charges in full (together with any applicable default interest) or remedy that material breach to our satisfaction within 5 Business Days of receiving a notice from us specifying the relevant non-payment or breach and advising our intention to suspend access to the FarmIQ Service.

    2. Lifting of Suspension:

      If we suspend your, or your Registered Users', access to the FarmIQ Service under clause 14.1, we will lift that suspension and allow access again once the relevant non-payment has been made in full (together with any applicable default interest) or the breach has been remedied to our satisfaction.

  15. TERMINATION

    1. Reciprocal Termination Rights:

      Either we or you (First Party) may terminate all of your subscriptions for the FarmIQ Service with immediate effect by notice to the other (Second Party) if:

      (a)the Second Party has committed a material breach of these Terms, and has failed to remedy that breach within 20 Business Days of receiving an earlier notice from the First Party to remedy the breach; or

      (b)the Second Party is subject to an Insolvency Event.

    2. Termination for Payment Default:

      We may also terminate all of your subscriptions for the FarmIQ Service with immediate effect by notice to you if you have failed to pay any fees payable under these Terms by the due date for payment, and those fees (together with any applicable default interest) or any part of them remain outstanding 20 Business Days after your receipt of an earlier notice from us requiring payment.

    3. Consequences of Termination:

      On termination of all of your subscriptions for the FarmIQ Service:

      (a)Your rights to access and use the FarmIQ Service and FarmIQ App will cease.

      (b)You may request that we provide you an extract of some or all of your Farm Data and Generated Farm Data stored in the FarmIQ System. Our compliance with any such request will be subject to you agreeing to pay us a fee for such extraction, which we will advise you of at the time, to take into account the time, cost and effort involved.

      (c)We may, at our discretion, retain and subsequently at any time delete, your Farm Data and Generated Farm Data stored in the FarmIQ System. For the avoidance of doubt, termination will not affect any of our rights under these Terms to deal with Aggregated Data containing your Farm Data.

      (d)Any fees or charges invoiced by us, or which we were entitled to invoice, on or prior to the date of termination, but which have not been paid, will remain payable in accordance with clause 10.

      (e)The termination will be without prejudice to either your or our rights and remedies in respect of any breach of these Terms by the other, where the breach occurred before the termination.

      (f)These Terms will end, except that the provisions of clauses 3.5, 7.3 to 7.9 (inclusive), 11, 13 and this clause 15.3, together with those other provisions of these Terms which are incidental to, and required in order to give effect to those clauses, will remain in full force and effect.

  16. AMENDMENTS

    1. Amendments by Notification:

      We may from time to time amend these Terms (at our absolute discretion, subject only to clause 16.1 (c)) by providing notice of the amendments by email, on our Website, and/or on or via the FarmIQ System (each a form of Notification). Any such amendments:

    2. (a)may be provided in the form of an updated version of these Terms;

      (b)will take effect on the date specified in our Notification or (where we have provided an updated version of these Terms) on the effective date specified at the start of the updated version of these Terms (which date must, in either case, be at least [10] Business Days after our Notification; and

      (c)must not provide, or have the effect of providing that we no longer have any obligations to provide the FarmIQ System to you.

    3. Amendments by Agreement:

      Any other amendments to these Terms must be agreed by you and us in writing.

  17. GENERAL

    1. Assignment:

      You may not assign or otherwise transfer any of your rights or obligations under these Terms to any other person without our prior written consent. We may assign or transfer any or all of our right or obligations under these Terms at our sole discretion.

    2. Subcontracting:

      We may appoint subcontractors to perform any of our obligations under these Terms. We will remain primarily liable to you for any breaches of these Terms by our subcontractors.

    3. Force Majeure:

      Neither you or us (First Party) will be liable for any act, omission or failure by the First Party under these Terms if that act, omission or failure results directly from an event or circumstances beyond the reasonable control of the First Party, provided that:

      (a)whenever the First Party becomes aware that such a result has occurred or is likely to occur, the First Party will notify the other accordingly; and

      (b)the First Party will continue to use its best endeavours to perform its obligations as required under these Terms.

    4. Governing Law and Jurisdiction

      These Terms are governed by the laws of New Zealand. You and we submit to the non-exclusive jurisdiction of the New Zealand courts in respect of all matters relating to these Terms.

    5. Entire Agreement:

      These Terms and the documents and information referred to in these Terms record the entire understanding and agreement between you and us relating to the matters dealt with in these Terms, and supersede all previous understandings or agreements (whether written, oral or both) relating to these matters.

    6. Notices

      Any notices required under these Terms must be in writing and delivered by registered post or email to:

      (a)in the case of notices to us, our postal address as set out on our Website or enquiries@farmiq.co.nz or

      (b)in the case of notices to you, the current postal address or email address that we hold for you.

    7. Any notice we send to you will be deemed to have been received by you 5 Business Days after posting or, if sent by email, at the time of transmission (provided we do not receive an automated delivery failure notification).

    8. Remedies:

      The rights, powers and remedies provided under these Terms are cumulative and are in addition to any rights, powers or remedies provided by law.

    9. Waiver:

      Any waiver by you or us of any rights or remedies under these Terms will be effective only if recorded in writing. No failure to enforce any provision of these Terms at any time by either you or us will in any way affect, limit or waive your or our right to subsequently require strict compliance with these Terms.

  18. DEFINITIONS AND INTERPRETATION

    1. Definitions

      In these Terms, unless the context indicates otherwise:

      Aggregated Data means any data or information arising from our aggregation of data (including your Farm Data) relating to FarmIQ Service users, their farms and/or their livestock data and any other data;

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

      Business Hours means 9am to 5pm on Business Days;

      Farm Data means any data, information or content relating to your Registered Farms and livestock;

      FarmIQ App means a downloadable mobile device application which can be used to enter Farm Data into the FarmIQ System, including all updates, modifications and changes to that application developed by us or on our behalf from time to time;

      FarmIQ Pack means a farm management software pack as referred to on our Website (or our authorised agent's website) from time to time, including the "Map", "Starter", "Animal", "Animal+", "Land and Environment", "Landbase" and "The Lot" packs;

      FarmIQ Pack Description means a document available on our Website or provided by us to you describing the features and functionality of a FarmIQ Pack, as updated from time to time;

      FarmIQ Service means the service involving the provision of access to FarmIQ Packs via an internet browser and the related hosting of FarmIQ Packs, Farm Data and Generated Farm Data, as described in these Terms;

      FarmIQ System means our farm management system comprising the FarmIQ Packs and any related systems we use to store Farm Data and Generated Farm Data and/or to provide access to the FarmIQ Packs;

      Generated Farm Data is defined in clause 7.4;

      GST means goods and services tax in terms of the Goods and Services Tax Act 1985, at the rate prevailing from time to time, including any tax levied in substitution for that tax;

      Initial Subscription Period is defined in clause 3.3;

      Insolvency Event means, in relation to a person, that person has:

      (a)if a company or body corporate, gone into liquidation, receivership or administration or has been removed from the New Zealand Companies Register or any relevant register in its jurisdiction of incorporation (other than as part of an amalgamation, in which that company or body corporate is being amalgamated);

      (b)if a natural person, died or been adjudicated bankrupt;

      (c)if a partnership, been dissolved; or

      (d)in any case, become unable to pay its debts as they fall due;

      Intellectual Property means trade marks, rights in domain names, copyright, patents, registered designs, circuit layouts, rights in computer software, databases and lists, rights in inventions, confidential information, know how and trade secrets, and operating manuals and training manuals;

      Losses means losses, damages, costs and expenses;

      Permitted Purpose is defined in clause 4.5;

      Registered Farms means the farms included in your Registration Application as the farms for which you wish to use the FarmIQ Service;

      Registered User is defined in clause 2.4;

      Registration Application means an application to become registered to use the FarmIQ Service;

      Renewal Period is defined in clause 3.4;

      Standard Subscription Package means any Subscription Package other than a Subscription Package for a Trial Period;

      Subscribed Packs means those FarmIQ Packs included in your Subscription Package, including all updates, modifications and changes to those packs developed by us or on our behalf from time to time;

      Subscription Package means a FarmIQ Service subscription package, including selected FarmIQ Packs and an initial subscription period (and references to your Subscription Package are references to the Subscription Package you have selected or, if you have multiple Subscription Packages, all or any one of the Subscription Packages you have selected, when submitting your Registration Application for the FarmIQ Service, as upgraded or downgraded and/or renewed from time to time in accordance with clause 9 and/or clause 3.4 respectively);

      Subscription Period means the period of your subscription for the FarmIQ Service, as provided in clause 3 (and, where you have multiple Subscription Packages, there will be a separate Subscription Period in respect of the subscription applicable to each such Subscription Package);

      Terms means these terms and conditions and, as the context requires, includes the contract between you and us comprising these terms and conditions and, to the extent applicable, the documents and information incorporated by reference;

      Third Party Product Provider is defined in clause 8.3(a);

      Trial Period is defined in clause 3.2;

      Website means our website at farmiq.co.nz or any replacement URL, as updated from time to time; and

      you means the person who submitted the Registration Application, which, in the case of a Registration Application made by an individual on behalf of an organisation, will be that organisation.

    2. Interpretation:

      In these Terms, unless the context indicates otherwise:

      (a)clause and other headings are for ease of reference only and will not affect these Terms' interpretation;

      (b)references to a person include an individual, company, corporation, partnership, firm, joint venture, association, trust, unincorporated body of persons, governmental or other regulatory body, authority or entity, in each case whether or not having a separate legal identity;

    3. (c)any obligation not to do anything includes an obligation not to suffer, permit or cause that thing to be done; and

      (d)the term includes or including (or any similar expression) is deemed to be followed by the words without limitation and

      (e) where there is reference to a term, condition, fee, rate, charge, feature, or any other matter being included or specified in, applicable to or provided for in, under or by (or any similar expression) a Subscription Package, details of that term, condition, fee, rate, charge, feature, or other matter for that subscription Package will (subject to clause 10.5) be as set out on our website or as advised to you by us from time to time.