Non-Commercial Data Access Agreement – General Terms
- 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 this Agreement.
- Except as expressly permitted by this Agreement (including pursuant to clause 3), the Permitted Use does not allow the User without NIWA’s prior written consent to:
- a. make the Data available for download or disclose, provide, publish, sell, license or otherwise make available the Data or Outputs by any means to any third party; or
- b. Commercialise the Data or any Output.
- Subject to the terms in this Agreement, the User may for the Permitted Use:
- a. use the Data to prepare or create Outputs, provided that no Output may reproduce significant tranches or the full set of the Data or allow for the extraction or reverse engineering of the Data; and
- b. despite clause 2.a., publish or make available Reports to third parties (including by display on a website).
- 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.
- The Data is provided on an “as-is” basis and NIWA does not make, and the User acknowledges NIWA has not made, any representation or warranty (express or implied): as to the accuracy, reliability, fitness for any 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, and 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.
- To the extent that NIWA is liable under or in connection with this Agreement, then NIWA’s total maximum liability to the User will not exceed the greater of $250 or the total Charges paid.
- In any Report published or made available by the User, the User, will, unless otherwise agreed in writing with NIWA where the Data is used to reach a conclusion or published as permitted in a Report:
- a. acknowledge NIWA by ensuring NIWA’s logo or an appropriate credit is clearly shown adjacent to any figure, table, section, etc.; and
- b. 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] an excludes all liability for any damage or loss whether in contract, tort (including negligence) or otherwise arising from reliance on or use of the information.
- Either party may terminate this Agreement (including the licence) immediately on written notice if the other party commits a material breach of this Agreement (which in the case of the User shall be deemed to include 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 NIWA will stop providing the Data and the User will:
- a. cease using any Data which has been provided by NIWA up to and including the date of termination or expiry (in any form) and any Outputs (excluding Reports already produced in accordance with this Agreement); and
- b. on request promptly destroy or delete any copy or copies of the Data it holds, but otherwise the terms of this Agreement will continue to apply to any Data already supplied.
- The User will if requested 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. For the purposes of this clause, a Change of Control of the User shall be deemed an assignment.
- This Agreement is governed by New Zealand law and the parties submit to the non-exclusive jurisdiction of the New Zealand Courts.
- This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute the same instrument. No counterpart shall be effective until each party has executed at least one counterpart.
- The clauses that by their nature are intended to remain in force on termination or expiry of this Agreement, do so, including clauses 4, 6, 7, 9 and 10.
- When used in this Agreement the following terms have the meaning beside them:
Agreement means these General Terms and any variation agreed in writing between NIWA and the User.
Charges The charges imposed by NIWA for accessing the Data.
Change of Control any change in the legal or beneficial ownership of the User or change in the effective management or control of the User where the User is a body corporate.
Commercialise or Commercialisation To make revenue from the Data or any Output (including by displaying either on a website that directly generates revenue from advertising or is pay-to-view) or to otherwise use the Data or an Output for commercial purposes. The use of the Data or any Output by the User during the Term for research funded by the government or a non-profit organisation that is conducted for the public benefit and without the intent to be commercialised is not deemed to be to Commercialisation of the Data or any Output.
Data The data or data product(s) obtained by the User.
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 In relation to a party, where that party 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 CBD, Auckland 1010.
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 any purpose or the purpose specified by the User (if applies), provided such purpose is non-commercial and for the User’s internal business, academic research, educational, or personal informational use or for the User’s compliance with statutory or regulatory reporting requirements or carrying out of public duties.
Reports Reports, presentations and papers or materials for research, study, training and instructional purposes which refer to the Data, summarise the Data or identify trends or insights from the Data, which may include extracts from the Data solely to the extent reasonably necessary to explain or evidence such trends or insights but do not reproduce significant tranches or the full set of the Data or allow the extraction or reverse engineering of the Data.
Term means the duration reasonably required to fulfil the purposes of the Permitted Use.
User The party receiving the Data, including in the case of an individual person the party on whose behalf the Data is being procured.
Version 1.0 (Updated September 2024)