TERMS AND CONDITIONS OF ACCESS TO ANAGOSAFE

1.         SCOPE

 

1.1       This document sets out the terms and conditions upon which the Licensee will be licensed to access, and make use of, ANAGOSAFE.

 

1.2       By accessing ANAGOSAFE the Licensee acknowledges that it accepts, and agrees to be bound by, this Agreement.

2.         DEFINITIONS AND INTERPRETATION

2.1       In these terms and conditions, unless the context otherwise requires, the following words carry the following meanings:

‘Agreement’ means these terms and conditions, and includes any subsequent amendment thereof

‘Help Services’ means the service provided by the Licensor under clause 5 (Help Services)

‘ANAGOSAFE’ means the web-based injury management and benchmarking database maintained on-line at www.AnagoSafe.com and, for the avoidance of doubt, includes all functionalities accessed through ANAGOSAFE but excludes any Site Data

‘ANAGOSAFE Forum’ means any message forum linked to ANAGOSAFE and hosted on the ANAGOSAFE web-site (www.AnagoSafe.com)

‘License’ means a license given under clause 3 (The License)

‘Licensee’ means the individual, company, body corporate or other organisation that has agreed to be bound by these terms and conditions in return for access to, and use of, ANAGOSAFE

‘Licensor’ means Anago Limited, a company having its offices at 7 Sussex Street, Hamilton, New Zealand

‘MIA’ means the Meat Industry Association of New Zealand (Incorporated) an incorporated society having its offices at Level 13, PWC Tower, 113-119 The Terrace, Wellington

‘Site’ means a physically discrete processing facility operated by the Licensee

‘Site Data’ means any information entered into ANAGOSAFE by a User in respect of any Site

‘Subscription’ means the annual subscription fee payable under clause 4 (Subscriptions)

‘Subscription Year’ means a period of 12 months.

‘User’ means the Licensee and any employees, officers, agents or contractors of the Licensee issued with a User ID by the Licensee

‘User ID’ means the user name and password issued by the Licensor to the Licensee, and further includes any user names and passwords subsequently issued by the Licensee to its employees, officers, agents or contractors in accordance with this Agreement

‘Working Day’ means any day on which registered trading banks in Hamilton, New Zealand are open for business

 

2.2       Headings are included for ease of reference only, and will not be used as aids to interpretation.

 

2.3       References to the singular include the plural and vice versa.

 

3.         THE LICENSE

 

3.1       The Licensor grants to the Licensee a non-exclusive license to access, enter data into, otherwise use ANAGOSAFE (including the ANAGOSAFE Forum), subject to the Licensee’s payment of the Subscription and subject further to these terms and conditions.

 

3.2       The Licensor will issue the Licensee with a user name and password to enable the Licensee to access ANAGOSAFE for the term of the License.  This will also enable the Licensee to issue sub-ordinate User IDs to employees within the Licensee’s organisation – subject always to clause 6.2(a).

 

3.3       Unless otherwise agreed in writing, and subject to clause 10 (Termination of License), each License will be valid for one Subscription Year. 

 

3.4       Subject to clause 10 (Termination), the License may be renewed by the Licensee for a further Subscription Year on payment of a further Subscription.  For the avoidance of doubt, a License that has already been renewed under this sub-clause 3.3 may be renewed again.

4.         SUBSCRIPTIONS

4.1       In consideration of the grant of the License, the Licensee agrees to pay to the Licensor a subscription fee for each Site that will access, enter data into, or otherwise use, ANAGOSAFE.

4.2       Subscription fees will be as set by the Licensor from time to time and notified to the Licensee prior to the commencement or renewal of the License.

5.         HELP SERVICES

5.1       During the term of the License, and subject to the provisions of this clause 5 (Help Services) the Licensee is entitled to reasonable use (in the Licensor’s opinion) of an e-mail-based help desk service provided by the Licensor.

5.2       Access to the help desk is through an e-mail address to be provided by the Licensor, and the Licensor will, to the extent reasonably possible, ensure that all relevant help desk enquiries are responded to within three Working Days.

5.3       The Licensee acknowledges that the help desk is provided by the Licensor to assist the Licensee to resolve problems relating to the use of, or access to, ANAGOSAFE and that the help desk is not provided to assist the Licensee to resolve issues relating to any systems or services that the Licensee is required to provide itself under the Agreement.

6.         OWNERSHIP AND USE OF ANAGOSAFE

6.1       The Licensee acknowledges that ANAGOSAFE (including any and all copyright therein) remains the property of the Licensor.

6.2       The Licensee agrees that it will not (and will not permit others to):

(a)        Provide User IDs to any person other than an employee of the Licensee who works at, or has a specific and direct responsibility for the operation of, a Site in respect of which the Licensee has paid a Subscription.

(b)        Allow third parties to access ANAGOSAFE using the Licensee’s User IDs.

(c)        Allow access to ANAGOSAFE at Sites other than those in respect of which the Licensee has paid a Subscription.

(d)        Enter Site Data relating to Sites in respect of which the Licensee has not paid a Subscription.

(e)        Assign or sub-license any of its rights under these terms and conditions without the Licensor’s prior approval in writing.

            (f)        Copy any part or all of ANAGOSAFE.

(g)        Modify, adapt, translate, tamper with, reverse engineer or otherwise derive source code for ANAGOSAFE (or attempt to do any of those things).

(h)        Create any links to any part of ANAGOSAFE which is normally accessible only with a User ID.

(i)         Post any defamatory or malicious messages or information on the ANAGOSAFE Forum.

7.         OWNERSHIP OF SITE DATA

7.1       All Site Data will remain the property of the Licensee, subject to the provisions of this clause 7 (Ownership of Site Data).

7.2       The Licensee authorises the Licensor to retain and use the Licensee’s Site Data in perpetuity to:

            (a)        allow ANAGOSAFE to perform benchmarking functions; and

            (b)        provide reports and statistical information to third parties

provided always that such functions, reports and information are performed or provided in a form such that it is not possible to identify the Site Data as being specific to the Licensee or any individual.

7.3       At any time within three months of the expiry or termination of the License, the Licensee may request a copy of part or all of the Site Data provided by the Licensee, and the Licensor will make all reasonable efforts to promptly comply with that request.

8.         ASSIGNMENT OR SUB-CONTRACTING BY LICENSOR

The Licensee acknowledges that the Licensor may, at its absolute discretion, assign or sub-contract any of its rights and/or obligations under these terms and conditions.

9.         INTERNET, TELECOMMUNICATION AND SYSTEM REQUIREMENTS

The Licensee acknowledges that it is solely responsible for:

(a)        supplying any and all computer hardware and software (virus protection software) necessary for it to access ANAGOSAFE.

(b)        arranging and purchasing any and all telecommunication and internet services necessary to enable it to access ANAGOSAFE.

(c)        training its personnel to use ANAGOSAFE.

10.       TERMINATION OF LICENSE

10.1     The Licensor may terminate the License immediately if the Licensee breaches any provision of this Agreement, and fails to remedy that breach within 14 days after receiving written notice requiring it to do so.

 

10.2     The Licensor may terminate the License without cause on giving 30 days prior written notice to the Licensee, provided that the Licensee will be entitled to a pro rata refund of the Subscription calculated by dividing the Subscription by 12 and multiplying the result by the number of full calendar months remaining in that Subscription Year as at the date of termination.

 

10.3     For the avoidance of doubt, where the License is terminated under sub-clause 10.1, the Licensee will not be entitled to any refund of any Subscription paid by it.

11.       EXCLUSION OF WARRANTIES

The Licensor makes no express warranties under this agreement, including (without limitation) any warranty that access to ANAGOSAFE of Help Services will be continuous or uninterrupted, that ANAGOSAFE or advice from Help Services will be free from all errors, that the ANAGOSAFE web-site (www.AnagoSafe.com) or any Help Services e-mails will be free from computer viruses or similar unauthorised software, or that ANAGOSAFE will be fit for any particular purpose.

 

12.       DISCLAIMER

 

12.1     The Licensee acknowledges that the Site Data entered into ANAGOSAFE is entered by individual subscribers and that in choosing to rely on the injury information contained in ANAGOSAFE, the Licensor does so at its own risk, and that the Licensor and the MIA (including their respective agents, employees and contractors) disclaim any and all liability for any loss or damage suffered as a result of such reliance.

 

12.2     While every reasonable effort has been made to ensure that all functions of ANAGOSAFE operate effectively, the Licensee acknowledges that the Licensor and the MIA (including their respective agents, employees and contractors) disclaim any and all liability for any loss or damage suffered as a result of:

(a)        any corruption or loss of, or any damage to, any data entered into ANAGOSAFE by a User.

(b)        any failure (whether total or partial) of any data export and import functions, or any corruption of data imported or exported.

(c)        any errors in any reporting function of ANAGOSAFE, or in any report produced by such functions.

13.       LIMITATION OF LIABILITY

13.1     Under no circumstances will the Licensor or the MIA (including their respective employees, agents or contractors) be liable to the Licensee for any indirect loss, including any loss of profits, business or anticipated savings, or consequential loss even where they have been advised of the likelihood of such losses.

13.2     The Licensee acknowledges that the maximum aggregate liability of the Licensor and the MIA for any and all loss sustained either directly or indirectly by the Licensee as a result of the acts and/or omissions of the Licensor and/or the MIA (whether negligent or otherwise), or through the breach of any provision of these terms and conditions by the Licensor, is limited to an amount equivalent to the most recent Subscription paid by the Licensee.

13.3     The limitations of liability in this clause 13 (Limitation of Liability) are subject to any laws prohibiting or restricting the Licensor and the MIA’s respective abilities to limit their liability.

14.       INDEMNITY

 

The Licensee agrees to indemnify the Licensor and the MIA (including their respective agents, employees and contractors) against all actions or proceedings brought by third parties for loss or damages arising from:

(a)        any statement the Licensee posts on the ANAGOSAFE Forum.

(b)        any breach of these terms and conditions by the Licensee.

 

 

15.       GENERAL PROVISIONS

 

Governing Law

15.1     This Agreement is governed by the law applicable in New Zealand.

 

Disputes

15.2          Neither party to this agreement may commence litigation or arbitration proceedings (other than for interlocutory relief) without first making all reasonable efforts to resolve the dispute in good faith between the parties and, should such efforts prove unsuccessful, submitting the dispute to mediation through a mediator nominated by Lawyers Engaged in Alternative Dispute Resolution.  The parties will continue to meet their respective obligations under this Agreement pending resolution of the dispute.

 

Waiver

15.3          No right under this Agreement will be deemed to have been waived except by notice in writing, and any such waiver will not affect the waiving party’s rights in respect of any subsequent breach of this Agreement by the other party.

 

Severability

15.4          Should any part of this Agreement be deemed illegal, unenforceable or invalid, all other provisions of this Agreement will remain in force.

 

Notices

15.5          Any notices required to be given under this agreement may be sent to the recipient’s registered office or, in the case of an individual, at the last known business address of the recipient.

 

Force Majeure

15.6     Neither party will be liable for any failure to perform its obligations under these terms and conditions where such failure results from anything reasonably beyond its control, including (without limitation) power failure, accident, act of God, industrial dispute, fire, explosion, act of war, act of terrorism, and civil disturbance.

 

Entire Agreement

15.6          The Agreement constitutes the entire agreement between the Licensee and the Licensor with respect to the use of ANAGOSAFE.