- Subject to the User’s compliance with the terms of this Agreement and in consideration of the Charges, NIWA grants the User a non-exclusive, non-transferable licence to use the Data only for the Permitted Use during the Term as set out in the Agreement.
- In accordance with the terms of this Agreement, the User may for the Permitted Use:
- a. use the Data to prepare or create Outputs; and
- b. publish or make available the Outputs to third parties provided that the Outputs must not reproduce significant tranches or the full set of the Data or provide, or have the effect of providing, all or a substantial amount of the Data to those third parties or otherwise allow the extraction or reverse engineering of the Data.
- Except as expressly permitted by this Agreement or with NIWA’s prior written consent, the User may not:
- a. make the Data available for download or otherwise disclose or provide the Data by any means to any third party;
- b. commercialise, sell, license or otherwise trade in the Data or, other than for the Permitted Use, any Outputs.
- The User acknowledges and agrees that:
- a. the Data constitutes commercially sensitive information of NIWA;
- b. all Intellectual Property Rights in or associated with the Data are, and will remain, vested solely in NIWA;
- c. this Agreement does not give the User any right to, or interest in, the Data other than the limited licence contained within this Agreement;
- d. it will take all necessary and reasonable steps to protect the Data from unauthorised access, use or disclosure.
- Subject to clause 4.b., the User shall own all Intellectual Property Rights in any Outputs produced under this Agreement.
- NIWA:
- a. warrants that its provision of the Data under this Agreement does not infringe any third party’s Intellectual Property Rights, and
- b. will use reasonable endeavours to ensure that, at the point of time at which it is provided to the User, the Data is:
- i. accurate, reliable and complete; and
- ii. uninterrupted and error-free.
- The Data is provided on an “as-is” basis and notwithstanding clause 6, NIWA does not make any representation or warranty (express or implied): as to the accuracy, reliability, fitness for purpose or completeness of the Data; that the Data will be uninterrupted or error-free; or as to the use to which the Data may be put or the results which may be obtained from using the Data. The User is solely responsible for its own use, assessment and evaluation of the Data. Except for liability for breach of clause 6, NIWA excludes all liability for any damage or loss (whether direct, indirect or consequential), whether in contract, tort (including negligence) or otherwise, incurred by any person through the use of or reliance on the Data or any Outputs.
- The User indemnifies NIWA against all costs, losses, damages or expenses (including reasonable legal costs) incurred or suffered by, or awarded against, NIWA whether during or after the Term, as a result of:
- a. subject to the liability cap in clause 9, the User’s breach of this Agreement;
- b. the User’s or any person’s use of or reliance on the Data or any Outputs;
- c. any claim or threatened claim that an Output infringes the Intellectual Property Rights of any person except to the extent the claim or threatened claim arises as a direct result of a breach of the warranty in clause 6.a.
- To the extent that NIWA is liable under or in connection with this Agreement (whether in contract, tort or otherwise), then NIWA’s total maximum liability to the User will not exceed the total Charges paid. The User’s liability in relation to breach of this Agreement is limited to the greater of $10,000 or five times the amount of the Charges paid or payable by the User to NIWA under this Agreement.
- Where the User publishes or otherwise makes available any Outputs in accordance with this Agreement, the User will, unless otherwise agreed in writing with NIWA:
- ensure attribution is given to NIWA for the Data used to create the Output; and
- include a disclaimer along the following lines (with the square-bracketed item to be populated): NIWA makes no representations or warranties regarding the accuracy, completeness or fitness for purpose of the information in this [figure/table/section etc] and excludes all liability for any damage or loss (whether direct, indirect or, consequential), whether in contract, tort (including negligence) or otherwise, arising from reliance on or use of the information.
- Either party may terminate this Agreement immediately on written notice if the other party commits a material breach of this Agreement (which in the case of the User shall includes any unauthorised use of the Data whatsoever or any failure to pay the Charges) or suffers an Insolvency Event. Without prejudice to any other rights or remedies of NIWA, upon termination or expiry of this Agreement, the User will immediately stop using the Data.
- On NIWA’s request, the User will allow NIWA reasonable access to inspect records or systems relevant to this Agreement to ascertain compliance with this Agreement and to take copies of such records. The User shall provide any assistance reasonably requested by NIWA for the purposes of any audit under this clause.
- This Agreement is the entire agreement between the parties and supersedes all prior agreements and representations in relation to its subject matter. Amendments to this Agreement must be agreed in writing and signed by the parties.
- The User may not without NIWA’s prior written consent assign, novate or transfer any of its rights or obligations under this Agreement.
- Clauses 4, 5, 7, 8, 9, 10, 11, 12 and any other terms which by their nature are intended to survive termination or expiry, do so.
- This Agreement is governed by New Zealand law and the parties submit to the non-exclusive jurisdiction of the New Zealand Courts.
- When used in this Agreement the following terms have the meaning beside them:
Agreement means these General Terms, the Order and any variation agreed in writing between NIWA and the User.
Charges The charges imposed by NIWA for accessing the Data as specified in the Order.
Data The data or data product(s) as set out in the Order.
Intellectual Property Rights All industrial and intellectual property rights, whether conferred under statute, common law, or equity, and includes copyright, and all rights conferred under statute, whether registered or unregistered, and all equivalent rights and forms of protection anywhere in the world, together with all right, interest or licence in or to any of the foregoing.
Insolvency Event The User becomes bankrupt or insolvent, has an administrator, receiver, liquidator, statutory manager, mortgagee's or chargee's agent appointed becomes subject to any form of external administration or ceases for any reason to continue in business.
NIWA National Institute of Water and Atmospheric Research Limited (NZBN: 9429038971433), having its registered office at 82 Wyndham Street, Auckland 1010.
Order The order for the Data via DataHub made by or for the User.
Outputs Reports and any other products, tools, models and other derivative works or outputs derived from, based on or containing the Data.
Permitted Use The use of the Data for a one-off project for the purpose specified in the Order.
Term means the duration reasonably required to fulfil the purposes of the Permitted Use.
User The party receiving the Data as specified in the Order, including in the case of an individual person the party on whose behalf the Data is being procured.
Version 1.0 (Updated September 2024)