End User Conditions
“End User” means any person to whom Data is permitted to be distributed, sold or made available by Hopewiser in accordance with any Special Terms. “Licensor” means NEW ZEALAND POST LIMITED a company incorporated in New Zealand with its registered office at Wellington.
(a) i. The Customer (and any of its agents and sub-contractors) may only use Data in accordance with the Customer Agreement, for the Customer’s internal purposes, and only as part of or in combination with the Hopewiser Software and/or any related services provided to it by the Hopewiser. The Customer must procure that any agents or subcontractors to whom the Data is provided comply with the Customer terms in this section 9(a).
ii. The Customer agrees that the Data and the Documentation and all Intellectual Property Rights and other rights in the Data and the Documentation from time to time remain the property of the Licensor and its licensors (as the case may be).
iii. The Customer must not remove or tamper with any disclaimer or copyright notice attached to or used in relation to Data.
iv. The Customer has no right to use any of the trade marks, business names or logos of the Licensor unless expressly stated otherwise in any sub-licence granted to the Customer by Hopewiser within the terms of any licence granted by the Licensor to Hopewiser.
v. The Customer must not at any time (a) copy, reproduce, publish, sell, let, modify, extract or otherwise part with possession of the whole or any part of the Data or relay or disseminate the same to any other party; (b) other than as permitted under (i) above, provide the Data to (or allow
the provision of the Data to, or access to the Data of) any agents or sub-contractors of the Customer without the prior written consent of the Licensor; or (c) sub-license all or any part of the Data to any person, or purport or attempt to do so, in each case, unless expressly permitted otherwise by the Licensor in writing.
vi. The Customer may make a reasonable number of back-up copies of the Data for security purposes. The Customer may only use such back-up copies for archive retention and retrieval purposes, and only during the term of the licence.
vii. If any licence under which a third party grants to the Licensor the right to incorporate the third party’s material in the Data is terminated, the licence to the Customer in respect of that material terminates and the Customer must, at the Licensor’s request, remove the same material from any copies of any Data held by the Customer within 90 days.
viii. The Customer must not make any statement or claim relating to the Data being approved, recommended or endorsed by the Licensor or do anything similar or imply that such is the case, unless the Licensor has expressly given its prior written consent to the form and content of such
ix. The Customer must comply with the requirements of the Privacy Act 1993 and any other applicable law or regulations relevant to its possession or use of the Data.
x. The Customer must ensure that its personnel, agents and subcontractors comply with the above terms as if they were the Hopewiser.
xi. The Customer acknowledges that the Licensor has made no warranty that the Data will be free from errors, omissions, inaccuracies, viruses or other destructive code, or that the Data will be fit for the Customer’s purpose or for use in any specific technical environment.
xii. On receipt of an update to any Data (including as part of any update of the Hopewiser Software), the Customer must as soon as practicable cease use of any previous version of the Data (and must in any event cease such use by the end of the term of the licence) and commence use of the update.
xiii. The Customer’s right to use each Update shall terminate six months after the date on which such Update was released by the Licensor. Early termination of the Hopewiser’s licence from the Licensor shall not affect the Customer’s right to use any Data provided that such early termination was not caused by or connected with any act or omission of the End User.
xiv. The Customer must keep the confidential information of the Licensor, including the Data, confidential.
xv. The Customer agrees to the provisions of section 9(b) below.
xvi. The Customer agrees and represents that it is acquiring the Data and any Documentation for the purposes of a business and that the Consumer Guarantees Act 1993 (New Zealand) does not apply.
xvii. The Customer must indemnify the Licensor and keep the Licensor indemnified against any claim, proceeding, damage, liability, loss, cost or expense (including legal costs on a solicitor and own client basis), whether arising in contract, tort (including for negligence) or otherwise, arising out of or in connection with any breach by the Customer of any of the above terms or the use of the Data by the Customer or any other person who has obtained the Data from an Customer. The Customer’s total aggregate liability to the Licensor under this clause xvii shall not exceed $250,000.
xviii. The Licensor must have rights to enforce the above terms for the purposes of the Contracts (Privity) Act 1982, and is entitled to terminate the Customer’s right to use any Data if the Customer breaches any of those terms.
(b) Hopewiser acknowledges and agrees that Land Information New Zealand (“LINZ”) and the Crown (including Statistics New Zealand) hold absolutely and exclusively certain material which has been licensed to the Licensor and incorporated into the Data, and that LINZ and the Crown do not assign any copyright or other intellectual property rights in such material either to the Licensor or Hopewiser. Hopewiser further acknowledges and agrees that LINZ and the Crown shall not, in any circumstances, be liable for any loss or damage (even if LINZ or the Crown has been advised of the possibility of such loss or damage, and including, without limitation, any direct loss, indirect loss, consequential loss, loss of profits, business interruption loss or loss of data) suffered by Hopewiser, any End User or any other person in connection with this Agreement. In the event that any exclusion of the liability of LINZ or the Crown set out in this clause is inapplicable, or is held unenforceable, the liability of each of LINZ and the Crown under or in connection with this Agreement, or arising out of any use, reproduction, modification, or creation of compilations or derivative works of or from the Data (by Hopewiser, an End User or any other person), whether that liability arises in tort (including negligence), equity or any other basis, shall be limited to the fees paid by Hopewiser for the material incorporated in the Data which gave rise to the loss or damage, exclusive of GST. For the purposes of the Contracts (Privity) Act 1982, this clause and clause 8(d) above confer a benefit on, and are enforceable by, LINZ and the Crown.