General Terms and Conditions

1          Definitions and Interpretation

1.1      In this Agreement, the following capitalised words shall have the following meanings:

(a)      Affiliates means, with respect to the Licensee, any entity which controls, is controlled by, or is under common control with, the Licensee, “control” denoting a 50% or more ownership interest or voting rights;

(b)      Agreement means this HazEL Licence Agreement, incorporating both the Schedule and the General Terms and Conditions, as the same may be amended from time to time in accordance with this Agreement;

(c)      Commencement Date means the date on which this Agreement commences, as set out in the Schedule;

(d)      Confidential Information has the meaning given to it in clause 11.1;

(e)      Disclosing Party has the meaning given to it in clause 11.1;

(f)       Documentation means all official technical and training manuals and similar material, in any medium, generally made available by the Licensor to users of the HazEL Tool, but excluding any marketing, communications, media or demonstration materials published or sent by the Licensor;

(g)      Force Majeure Event means any event or circumstance beyond the reasonable control of a Party and which that Party is unable to prevent or overcome by the exercise of reasonable care and at a reasonable cost and which results in non-performance by that Party, including (provided it meets the foregoing criteria) any:

(i)        fire, flood, storm, earthquake, landslide, volcanic eruption or other force of nature or explosion;

(ii)       strikes, lockouts or labour disputes (excluding lawful strikes, lockouts or labour disputes involving the employees of or breach of contract by the suppliers or contractors of the Party seeking to rely on the event); and

(iii)      sabotage, terrorist activity, revolution, riot, epidemic or national emergency, act of war (whether declared or not), warlike operations or civil disturbance,

but excluding any inability to meet that Party’s financial obligations;

(h)      HazEL Tool means the on-line tool, developed by or on behalf of the Licensor and/or one or more of its shareholders, that identifies and ranks chemicals and chemical compounds, and seeks to monitor and record public, academic and media interest in those chemicals and chemical compounds from time to time, and includes any Upgrade that the Licensor may provide to the Licensee from time to time;

(i)       Intellectual Property means all intellectual property rights in the HazEL Tool and Documentation, including:

(i)        all patents, inventions, designs, copyright and related rights, database rights, trademarks, trade names (whether registered or unregistered), logos and rights to apply for registration and to alter and transfer these rights;

(ii)       proprietary rights in domain names;

(iii)      knowhow;

(iv)     applications, extensions and renewals in relation to any of these rights; and

(v)      all other rights having an equivalent or broadly similar effect anywhere in the world;

(j)       IP Claim has the meaning given to it in clause 7.1;

(k)      Party means either of the Licensor or the Licensee, as appropriate;

(l)       Receiving Party has the meaning given to it in clause 11.1;

(m)     Term means the initial term set out in the Schedule and includes the period of any renewal pursuant to clause 5.2;

(n)      Upgrade, in relation to the HazEL Tool, means any upgrade to or release of the HazEL Tool subsequent to the initial delivery generally made available by the Licensor to its licensees from time to time in which the Licensor, as incorporated:

(i)        any changes to correct errors or other deficiencies;

(ii)       enhancements to provide new capabilities; or

(iii)      improvements to provide better performance, which may or may not occur together with new or revised Documentation, but excludes any new product, software or chemical ranking and monitoring service as determined by the Licensor in its sole discretion; and

(o)      Users means those officers, employees, contractors or agents of the Licensee or of its Affiliates in the Territory, up to the maximum number set out in the Schedule (as appropriate for the relevant type of licence), who are authorised by the Licensee (and nominated to the Licensor) to log onto and use the HazEL Tool.

1.2      Interpretation

In this Agreement, unless the context requires otherwise:

(b)      a reference to a clause is a reference to a clause in the General Terms and Conditions to this Agreement;

(c)      a reference to the Schedule is a reference to the schedule on page 1 of this Agreement;

(d)      words importing one gender include the other genders;

(e)      words importing the singular include the plural and vice versa;

(f)       the words “includes” or “including” do not imply any limitation;

(g)      references to a Party includes references to that Party’s:

(i)        successors and permitted assigns; and

(ii)       employees, contractors, subcontractors, agents, representatives and invitees;

(h)      headings are for ease of reference only;

(i)       derivations of a defined term have similar meanings to the defined term;

(j)       any provision to be performed by two or more persons binds those persons jointly and severally;

(k)      a reference to a statute or regulation includes all amendments to that statute or regulation and any substitute statute or regulation;

(l)       a reference to a statute includes all regulations, bylaws, orders, notices and other instruments made under that statute;

(m)     a “person” includes any individual, company, corporation, firm, partnership, joint venture, association, organisation, trust, estate, government, agency of state, municipal authority or statutory body, whether or not having separate legal identity;

(n)      a prohibition against doing any thing also includes a reference not to permit, suffer or cause that thing to be done; and

(o)      all words and phrases used in this Agreement have the meanings given to them in clause 1 unless expressly defined elsewhere.

2          Grant of Licence

2.1      Subject to the terms and conditions of this Agreement, the Licensor hereby grants to the Licensee a non-exclusive, non-transferable and non-sublicensable limited right and licence, of the type indicated in the Schedule (A, B or C) to use the HazEL Tool and any associated Documentation for the Purpose, during the Term. The Licensee must not use the HazEL Tool in any other way, or for any other purpose or business. The Licensor at all times retains full ownership of the HazEL Tool and Documentation and all Intellectual Property in each of them.

2.2      On or before the Commencement Date, against payment of the annual fee under clause 6, the Licensor will provide the Licensee with log-in instructions to enable its permitted Users to access the HazEL Tool for the Term and for the Purpose. The Licensee may not nominate as a User any officer, employee, contractor or agent of any Affiliate in a different territory or jurisdiction.

2.3      The HazEL Tool and the Documentation may only be accessed by the Licensee and its Affiliates and its or their Users who have a need to access and use them for the Purpose and in the Territory. The Licensee will be responsible for ensuring that all such Users observe this Agreement and the Licensee will be liable for, and indemnifies the Licensor from and against, any direct loss, cost, liability or expense caused by any of them failing to observe this Agreement in any respect. Any access by such an Affiliate or by a User will be deemed access by the Licensee. Except to the limited extent permitted by this clause 2.3, the Licensee must not allow any other person to access the HazEL Tool, including any Affiliate registered or based in another territory or jurisdiction (who will need its own separate licence in order to access the HazEL Tool).

2.4      The Licensor will provide workshop training and on-going support to enable and assist Users in using the HazEL Tool.

2.5      The Licensor will from time to time monitor the information entered by its licensees in the HazEL Tool and may provide such moderation of entries as it thinks fit.

3          Licence Restrictions and Scope

3.1      The Licensee agrees that it will not itself, or through any Affiliate, User, agent or other third party:

(a)      sell, lease, loan, assign, convey, license, sublicense, encumber or otherwise transfer the HazEL Tool or Documentation except as expressly permitted by this Agreement;

(b)      copy, export and/or download any portion of the HazEL Tool or the dataset within it;

(c)      decompile, disassemble, or reverse engineer any portion of the HazEL Tool or attempt to discover any underlying ideas or workings of the HazEL Tool;

(d)      use the HazEL Tool to provide, directly or indirectly, the same or substantially the same service to third parties;

(e)      remove any logo, product identification, trademark, copyright, confidentiality, proprietary or other notice contained in, on or within the HazEL Tool or Documentation; or

(f)       modify or create a derivative work from the HazEL Tool or any portion thereof, except to the extent that an extract or summary of relevant information is presented in any internal report or presentation prepared for the Purpose. Should the Licensee’s use of HazEL Tool result in a derivative work that is permitted by this clause 3.1(f), the Licensor shall own such derivative work.

3.2      The Licensee acknowledges and agrees that:

(a)      the HazEL Tool provides guidance as to its scientific subject matter but does not purport to resolve inherent scientific uncertainty or to provide all relevant, accurate, complete and up to date information about all chemicals and chemical compounds. Its purpose is to provide real-time monitoring of media and academic interest coming to the attention of the Licensor, but it is only part of a suite of tools and steps the Licensee can use or take to satisfy its own information requirements;

(b)      the Licensor does not warrant that the HazEL Tool will meet the expectations or requirements of the Licensee, will meet any level of effectiveness or fitness for purpose, or will function error-free or in a timely or uninterrupted manner;

(c)      the Licensee has made its own evaluation in deciding to take a licence of the HazEL Tool under this Agreement and has not relied on its functionality, completeness, accuracy and/or the future availability of any specific features; and

(d)      the Licensee accepts the HazEL Tool as made available, and with the functionality it has.

3.3      Any work arising from or created, produced or developed by the Licensee (whether alone or jointly with others) as a result of using the HazEL Tool will upon creation vest in and will be and remain the sole and exclusive property of the Licensee provided it has not breached this clause 3 in any way.

4          Hardware, Software and Equipment

The Licensee shall be responsible for the appropriate computer hardware configuration or other devices and appropriate software to support the proper operation of the HazEL Tool, including without limitation modems, servers, network and communication services, and the appropriate back-up, recovery and reboot services. The Licensee is also responsible for nominating appropriate personnel qualified to use the HazEL Tool as Users.

5          Term

5.1      This Agreement commences on the Commencement Date and terminates on the expiry date set out in the Schedule, unless terminated earlier pursuant to clause 8.

5.2      Thereafter, the term of this Agreement can continue on a year to year basis by written agreement between the Parties, evidenced by email or other exchange, and by the Licensor invoicing the Licensee for another annual subscription fee. A fresh Agreement may but need not be executed for this purpose, and unless a replacement Agreement is executed then the terms of this Agreement will continue to apply, subject to any fee increase under clause 6.2.

6          Fees, Payment and Taxes

6.1      In consideration of the licence granted under this Agreement, the Licensee shall pay to the Licensor the fee set out in the Schedule, in advance on or by the Commencement Date and annually (in the event of renewal and subject to any fee increase under clause 6.2) no later than each successive anniversary of the Commencement Date. The Licensor will invoice the Licensee annually in advance of the due date for payment.

6.2      The Licensor may increase the amount of the annual fee on any renewal pursuant to clause 5.2, in which event such increased fee will be payable.

6.3      Any late payment will attract interest at the Licensor’s then current bank overdraft rate.

6.4      All payments made are non-refundable except as determined by a court in resolution of any dispute.

6.5      All payments must be net of any bank charges (whether levied by the Licensee’s bank or the Licensor’s bank or any other intermediary).

6.6      The Licensee agrees to pay all goods and services tax due in respect of the annual fee, together with any other taxes, levies or charges (excluding taxes on the Licensor’s income), including any late payment or other related penalties or interest arising in any jurisdiction as a result of the transactions evidenced by this Agreement.

6.7      The Licensor reserves the right, in the event of non-payment of the annual fee due in any year within thirty (30) days of its due date for payment, to:

(a)      demand immediate return of all copies (whether electronic or otherwise) of the HazEL Tool and Documentation in the possession or control of the Licensee; and/or

(b)      to cease providing any Upgrades; and/or

(c)      to terminate this Agreement with immediate effect; and/or

(d)      to issue proceedings to recover the outstanding payment, interest thereof (including its costs of enforcement) and/or to require return of all copies of the HazEL Tool and Documentation and such other orders as it thinks fit. Any such termination will be without prejudice to the Parties’ pre-existing rights and obligations under this Agreement or the Licensor’s ability to issue proceedings in the New Zealand courts.

7          Intellectual Property

7.1      All Intellectual Property in the HazEL Tool and Documentation is owned by and retained by the Licensor and the Licensee acquires no rights in it except to the extent expressly conferred by this Agreement.

7.2      Provided the Licensee has not breached clause 3.1, where the Licensee has a Type A licence and itself acquires through this Agreement the right to add information to the HazEL Tool, by so doing it relinquishes any intellectual property rights to that information in favour of the Licensor.

7.3      The Licensor warrants that that neither the HazEL Tool nor the Documentation breaches the intellectual property rights of any third party.

7.4      The Licensor will indemnify and hold the Licensee harmless from and against any claim brought against the Licensee by a third party on the basis that the HazEL Tool infringes a valid trade mark, trade dress, copyright or other intellectual property right of such claimant (an IP Claim) and the Licensor will pay those costs and damages finally awarded or settled (upon settlement terms acceptable to the Licensor) against the Licensee based on such IP Claim provided that:

(a)      the Licensee notifies the Licensor in writing no later than thirty (30) days after becoming aware of such IP Claim but in no case later than reasonably required to prevent the Licensor’s ability to defend such IP Claim from being prejudiced;

(b)      the Licensor has sole control of the defence and all related settlement negotiations and the Licensee does not make any admission or disclosure or otherwise take any action prejudicial to the Licensor; and

(c)      the Licensee provides the Licensor with the assistance, information, and authority reasonably necessary to perform the Licensor’s obligations, at the Licensor’s expense.

7.5      The Licensor will have no liability for any claim of infringement to the extent that the IP Claim results from:

(a)      failure of the Licensee to implement any Upgrade, if the IP Claim would have been avoided by the use of such Upgrade and the Licensee was informed of such;

(b)      combination of the HazEL Tool with any information, specification, software, data, or other material not provided by the Licensor;

(c)      use of the HazEL Tool in conjunction with any third-party information or products;

(d)      the Licensee’s use of the HazEL Tool in any manner not permitted by this Agreement; or

(e)      modifications or maintenance of the HazEL Tool by a party not authorised by the Licensor.

7.6      The foregoing provisions of this clause 7 constitute the Licensee’s sole and exclusive remedies for any breach of third-party Intellectual Property or any IP Claim.

7.7      Other than as provided in this Agreement, the HazEL Tool and the Documentation are licensed and made available “as is”. Other than to the extent of the limited warranty in clause 7.1, the Licensor gives no other warranties or representations in relation to the HazEL Tool, the Documentation or this Agreement, whether arising by law, custom, usage or otherwise, including any implied warranties as to merchantability or fitness for purpose. To the extent permitted by law, all warranties implied under the Consumer Guarantees Act 1993 are excluded, the licence under clause 2 and this Agreement being entered into between the Parties in the course of trade.

8          Liability Limitation

8.1      The Licensor makes the HazEL Tool available to the Licensee solely on the terms of this Agreement and will have no liability, whether in contract, tort or otherwise (except to the extent any liability arises under clause 7.4) as a result of the Licensee’s use of or reliance on the HazEL Tool. In particular, but without limitation, the Licensor is not liable for any entry made in the HazEL Tool by another licensee or any user.

8.2      To the extent the Licensor has any liability under this Agreement, in no event will its liability exceed the quantum of the direct loss, cost, expense or liability actually sustained by the Licensee and the Licensor will never have any liability for any indirect or consequential loss (including loss of revenue, loss of profits, lost opportunity, reputational damage or loss of market share).

9          Audit Rights

The Licensor or its nominee shall be entitled, at the Licensor’s sole expense, to audit the Licensee’s compliance with the provisions of this Agreement no more than once each calendar year, during normal business hours, by providing written notice to the Licensee at least thirty (30) business days prior to such audit. If any audit reveals a material breach of this Agreement by the Licensee, the Licensor may terminate it in accordance with clause 10.1(a).

10       Termination

10.1    A party may terminate this Agreement, if the other Party:

(a)      is in material breach of this Agreement and such breach (if capable of being remedied) is not remedied within thirty (30) days of written notice of such breach being given; or

(b)      ceases business activities, becomes insolvent, is unable to meet payment obligations, makes an assignment for the benefit of creditors, becomes subject to liquidation proceedings or the direct control of a receiver, liquidator, administrator or similar authority.

10.2    Subject to any dispute resolution outcome pursuant to clause 15.9, termination will become effective immediately on the date set out in the termination notice, without prejudice to any accrued or pre-existing rights or obligations of either Party. Termination of this Agreement will not relieve either Party from any obligation existing at the time of termination or which may accrue post termination, including, without limitation, the provisions regarding the treatment of Confidential Information.

10.3    Upon termination of this Agreement, the licence granted under clause 2 shall terminate and the Licensee shall cease all use of the HazEL Tool and Documentation. Upon request, a Party shall return or certify the destruction of the other’s Confidential Information, and all copies thereof in its possession, and return or destroy all applicable Documentation and derivative works, in whole or in part, and all copies thereof in its possession or control.

10.4    Termination is not an exclusive remedy and all other remedies, including injunctive relief and specific performance, will be available whether or not termination occurs.

11       Confidentiality

11.1    In this Agreement Confidential Information means all documents, software, reports, data, records, forms and other materials obtained by one Party (the Receiving Party) from the other Party (the Disclosing Party):

(a)      that have been marked as confidential;

(b)      whose confidential nature has been made known by the Disclosing Party to the Receiving Party; or

(c)      that due to their character and nature, a reasonable person under like circumstances would treat such material as confidential.

11.2    Each Party agrees that it shall use the Confidential Information of the Disclosing Party solely in accordance with the provisions of this Agreement and the Receiving Party agrees that it shall not disclose, or permit to be disclosed, the Disclosing Party’s Confidential Information, directly or indirectly, to any third party without the Disclosing Party’s prior written consent.

11.3    Each Party agrees to exercise due care in protecting the Confidential Information of the Disclosing Party from unauthorised use. The Licensor shall be responsible and liable for any unauthorised dissemination of information from its Users and Affiliates.

11.4    Neither Party bears responsibility for safeguarding information that it can document in writing:

(a)      is in the public domain through no fault of its own;

(b)      was properly known to it, without restriction, prior to disclosure by the Disclosing Party;

(c)      was properly disclosed to it, without restriction by another person with the legal authority to do so;

(d)      is independently developed by the Receiving Party without use or reference to the Disclosing Party’s Confidential Information; or

(e)      is required to be disclosed pursuant to a judicial or legislative order or proceeding, in which case the Receiving Party shall provide the Disclosing Party with prior notice of the intended disclosure.

11.5    In the event of actual or threatened breach of the provisions of clause 2 (Grant of Licence), clause 3 (Licence Restrictions and Representations) and/or this clause 11 (Confidentiality), the non-breaching Party will be entitled to immediate injunctive and other equitable relief, in addition to all other remedies, without bond and without the necessity of showing actual damage. These confidentiality obligations shall survive termination of this Agreement.

12       Assignment

Neither Party may either assign or transfer its rights or obligations under this Agreement without the prior written consent of the other Party. Notwithstanding the foregoing, a Party may, without the other’s consent, assign this Agreement, in whole or in part, in connection with the reorganisation, merger, acquisition or sale of all or substantially all of its assets, provided the assignee agrees in writing to be bound by this Agreement. Any assignment without the requisite consent and agreement is null and void.

13       Publicity

The Licensee agrees that the Licensor may use the Licensee’s name and logo in press releases, product brochures, financial reports and other promotional materials in any media indicating that the Licensee is an end user of the Licensor, so long as the Licensee’s prior written consent has been obtained (such consent not to be unreasonably withheld).

14       Notices

Any notice or communication for the purposes of this Agreement may be delivered by hand or by courier, email or registered mail, in each case to the address and contact details set out in the Schedule or at such other address and details as shall be designated in writing by the relevant Party.

15       Miscellaneous

15.1    Neither Party will be liable to the other for any loss or damage resulting from any delay or failure to perform all or any part of this Agreement if such delay or failure is caused, in whole or in part, by a Force Majeure Event. Either Party may terminate this Agreement if a Force Majeure Event lasts for thirty (30) consecutive days or more.

15.2    Any waiver of the provisions of this Agreement or of a Party’s rights or remedies under this Agreement must be in writing to be effective. Failure, neglect or delay by a Party to enforce the provisions of this Agreement or its rights or remedies at any time will not be construed as a waiver of that Party’s rights under this Agreement and will not in any way affect the validity of the Agreement or prejudice that Party’s right to take subsequent action.

15.3    If any term of this Agreement is found to be invalid, unlawful or unenforceable to any extent, the Parties shall endeavour to agree such amendments as will preserve, as far as possible, the intentions expressed in this Agreement. If the Parties cannot so agree, the term will be severed from the rest of this Agreement and the remaining terms and conditions will continue in full force and effect.

15.4    This Agreement contains the entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all previous agreements, communications, representations and understandings, either oral or written, between the Parties. This Agreement may be modified only in writing, signed by the authorised representatives of each of the Parties.

15.5    Nothing in any purchase order, invoice, acknowledgement or other business form that either Party may use in connection with the acquisition or licensing of the HazEL Tool will have any effect on the rights, duties or obligations of the Parties under, or otherwise modify, this Agreement.

15.6    In no circumstances shall this Agreement be construed as an exclusive dealing arrangement. Subject to clause 11, the Licensor may licence the HazEL Tool or any other service to any other licensor or third party.

15.7    This Agreement may be executed by the Parties individually or in any combination, in one or more counterparts, each of which shall be treated as an original.

15.8    Provisions concerning the Parties’ rights and obligations which by their nature are intended to operate after termination or which are necessary to enforce any right will survive termination of this Agreement.

15.9    If a dispute arises, the Parties agree first to attempt to resolve the dispute between both Parties’ representatives. If they are not able to resolve the dispute amicably, then the dispute will be submitted to the respective senior executive for the functional department of each Party. The senior executives shall meet electronically or in person within thirty (30) business days from the date the dispute was submitted to them. If the dispute remains unresolved after this meeting, either Party shall have the right to commence any legal proceeding as permitted by law.

15.10 This Agreement is governed by New Zealand law and the Parties irrevocably agree to submit to the exclusive jurisdiction of the New Zealand courts.