In these Terms, the following words have the meaning indicated:

us and we mean Farmax Limited and our is a reference to Farmax Limited.

you means the person or legal entity that has subscribed to any Farmax Services and your is a reference to that person or legal entity.

Working day means Monday to Friday excluding public holidays relevant to Hamilton, New Zealand

Consultant means a person or entity that uses Farmax Services for the benefit of another person or legal entity that operates a farm or farms.

Aggregated Data means any Data or Output Data that has been aggregated with the data of other Farmax customers or any other data.

Data means any data or information relating to the farm or farms in respect of which you use the Farmax Services;

Farmax Services means the software and products you have subscribed for available through our website at http://www.farmax.co.nz.

Output Data means the data generated by inputting Data into and using any Farmax Service.

Support Services means the provision of services to support your use of the Farmax Services as more particularly described below.

Third Party Software has the meaning set out below under the section “Third Party Software”

As long as you have complied with your responsibilities as set out below and are otherwise in compliance with these Terms, we grant you the right to use the Farmax Services for the purpose of managing and operating the farm or farms identified by you and approved by us.

If you are a Consultant you may, as long as you have complied with your responsibilities as set out below and are otherwise in compliance with these Terms, use the Farmax Services for the purpose of providing consultancy services in connection with the operation and management of your client’s farms.

Services

We will use all reasonable endeavours to provide you with the Farmax Services at all times. However, we cannot guarantee that they will be completely uninterrupted or error free.

We will need to carry out maintenance from time to time and that may cause minor disruptions in service. We will make every effort to advise you of scheduled maintenance by e-mailing you. There might also be instances where unscheduled maintenance is required.

The Farmax Services are linked to and dependent on services from other software providers. Interruptions in computer networks, telephone systems, the internet and other systems may also affect availability. Accordingly, we will not be responsible to the extent that any disruptions are beyond our reasonable control.

Training

We will provide opportunities to receive training on use of the Farmax Services through online resources and training sessions delivered by Farmax staff.

Support Services

We will maintain a help desk manned between 7.30 am and 5 pm each working day in Hamilton, that provides advice on the use of the software, coordinates training days, investigates issues with the software and coordinates the sending of monthly files between the Customer and the Consultant. If Support Services are included in your Farmax Services, you will have access to the help desk via e-mail and phone.

We will endeavour to answer all calls as they come in but in case of the unavailability of staff for any reason, we will return your call within 1 working day.

In order to meet our commitments to you we will need information from you about your farm, facilities and use of the Farmax Services. You commit to providing that information and ensuring that all such information is correct and accurate.

You also commit that you will:

• Have sufficient bandwidth and a reliable internet connection;

• Communicate promptly and openly with Farmax about issues relating to the Farmax Services and allow Farmax a reasonable opportunity to rectify any such issues;

• Comply with all laws relating to use of the Farmax Services;

• Not reverse engineer, decompile, modify, reproduce adapt or disassemble any Farmax Services or create derivative works from any Farmax Services;

• Not, except to the extent permitted by law, copy, reproduce, translate, adapt, modify or create derivatives from any of the Farmax Services.

• Not use the Farmax Services for any illegal purpose;

• Keep all passwords used for the Farmax Services confidential and secure and be fully responsible for the actions of anyone using those passwords;

• Not allow any of the Farmax Services to be used by anyone that does not subscribe to those services;

• Not allow the Farmax Services to be installed and used on any computer other than the one owned and operated by you unless given written permission by Farmax.

• Promptly notify us if you become aware of anyone having installed or used any Farmax Services without authorisation.

• Comply with the terms of our Acceptable Use Policy shown on the Farmax web site.

• Take reasonable steps to ensure that your Data stored on our servers is free from viruses and will not corrupt the data or systems of any other person;

• Complete training on the use of the Farmax Services as required by us prior to using those services; and

• Ensure you have the right to use any Data you store on our servers.
  

If you are a Consultant you will also:

• Maintain a high level of farm system analytical ability and ensure that advice is based on solid knowledge;

• Promote the Farmax brand;

• Not develop or assist in the development of, software products that are intended to compete with Farmax.

You agree that you will pay us monthly in advance for the Farmax Services at the rates listed on the Farmax website. These prices are subject to change, however we will notify you before making any price changes to your subscriptions.

Unless we agree otherwise, we will invoice you monthly and you will pay any such invoices by the 20th of the month following the date of the invoice.

If you are late in making any payments it is your responsibility to contact us to make arrangements for payment of the outstanding amount. If you don’t contact us or you don’t agree to arrangements that are satisfactory to us in our sole discretion, we may place your subscription on hold until payment is made in full. We reserve the right to terminate the Farmax Services should your account continue to remain outstanding. Costs incurred by Farmax in recovering overdue debts will be paid by the customer.

We may charge interest on any overdue payment at the rate of 1.5% per month (compounded monthly) until the outstanding amount is received by us, whether that is before or after judgment of a court for the outstanding amount.

We will make all efforts to maintain the confidentiality of any information relating to you which is of a confidential nature and will only use or disclose that information as is necessary to provide you with the Farmax Services (which may include disclosing information to sub-contractors) and as set out below. You will also keep confidential any information relating to us that is of a confidential nature, including the terms on which we are providing Farmax Services. Neither of us will be responsible to the other if we are required by law to disclose the confidential information of the other. Each party will provide written notification of the request to the other party, in the event of such circumstances. These obligations will not apply to information which is in the public domain or which has been independently developed by either of us without use of or reference to the other’s information.

We ensure that staff and sub-contractors are bound by similar obligations regarding confidentiality and use of information.

We may aggregate your Data and Output Data with the data of other Farmax users and other information. That Aggregated Data is then:

• Used to provide benchmarking for financial and physical performance analysis

• Anonymised aggregated data may be shared with certain organisations to inform agricultural research, multi-farm performance forecasting and regional or national performance analysis

• Used to continually improve and update the products and services Farmax offers.

In order to allow for those uses, you grant to us a non-exclusive licence to use, copy, modify and store your Data and Output Data. We may also disclose, use, or licence Aggregated Data as long as such data is in a form that does not allow your Data or Output Data to be specifically identified.

Your Data is stored on our servers which are backed up daily. However, there are risks with storing data on servers. We do not take any responsibility whatsoever for any damage suffered in respect of data or information stored on our servers or your computer, including any corruption, loss or infection of such data or information.

Data, including backups, are stored in cloud data centres in international regions.

All of your Data remains your property. All intellectual property relating to the Farmax Services and rights to the Aggregated Data belong to us.

The Farmax Services may incorporate or be linked to other software and/or software interfaces which are licensed to Farmax (Third Party Software). We grant you a non-exclusive, non-transferable sub-licence to use such software to the extent that the software is incorporated into the Farmax Software.

We may disclose your Data and Output Data to third parties to the extent required for the interoperation of such third party software and to provide the Farmax Services to you. We will not be responsible for any disclosure, modification or deletion of your Data or Output Data as a result of such disclosure.

The sub-licence granted above will terminate immediately on termination of Farmax’s licence to use such software.

As is usual commercial practice, we are providing the Farmax Services to you on the basis that if we are found to be liable to you in respect of those services for any reason, our liability will be limited.

If you suffer loss or damage of any nature (including any economic loss, direct or indirect, consequential or special loss or damage) as a direct or indirect result of your use of or reliance on, the Farmax Services, our maximum aggregate amount of liability to you whether in contract, tort or otherwise, is limited to the amount paid by you during the 12 months preceding the event giving rise to your loss or damage.

The licensors of any Third Party Software will not be liable to you under or in connection with these Terms or any Third Party Software, whether in contract, tort or otherwise for any loss of profit, loss of revenue, loss of business or other form of economic loss or any form of direct or indirect, consequential or special loss or damage. If, notwithstanding the foregoing, the licensors of any Third Party Software are found liable to you, then the total aggregate liability of each of them to you shall not exceed $1,000.

Except as expressly set out in these Terms, all representations, conditions and warranties (whether express or implied, statutory or otherwise and including warranties as to the merchantable quality or fitness for any particular purpose of the Farmax Services) are expressly excluded.

If you are using the services for a business purpose, you agree that the Consumer Guarantees Act 1993 does not apply to the supply of the Farmax Services to you.

You also agree that these Terms set out the whole of our agreement in relation to the Farmax Services and you are not relying on any representations or statements we have made elsewhere about the Farmax Services.

There is a certain degree of risk to us and our business associated with your use of the Subscribed Services. Accordingly, you agree to be responsible for and indemnify us against any losses, damages, claims or costs incurred by us (including legal fees on a solicitor and his own client basis) as a result of any action or claim made against us by any third party in relation to your use of the Farmax Services or your breach of these Terms, except to the extent caused by our act or omission.

You may cancel your subscription to any of the Farmax Services on at least 30 days notice in writing to us after 6 months from the date the relevant Farmax Service was commenced.

We may cancel or suspend any or all of the Farmax Services as described above under “Charges and Payment” or immediately on notice in writing to you at the address you provide to us in any of the following circumstances:

• If you are using the services for an illegal purpose or are otherwise in material breach of our Acceptable Use Policy or these Terms;

• The provider of software incorporated into the Farmax Services, cancels our rights to that software (to the extent the Farmax Services are affected);

• You are in material breach of these Terms and have failed to remedy that breach within 10 working days of having received notice of the breach; or

• A receiver, administrator statutory manager or other similar official of your business or assets is appointed or steps are taken towards your liquidation

Because technology and the services we provide may change from time to time we also have the right to cancel the services and our commitment to you under these Terms in our sole discretion on 30 days notice to you.

Once we receive your notice that you wish to cancel any of the Farmax Services or if we have cancelled the services, you may contact us to make arrangements to hand over your data. You will be responsible for paying the reasonable costs of the hand-over in advance. If you do not or if we are unable to contact you, we will not be responsible for any losses or expenses you incur as a result.

You give us permission to collect, use and retain information about you. This information may include your full name, company name, business address, postal address, telephone number(s) and email address. Your information may be collected and stored at the time it is first provided by you. This information is used by Farmax Ltd. to contact you in relation to our products and services. The information may also be disclosed on an individual basis to third parties if required to assess your credit worthiness.

You have a right to request the information about you that we have stored, and may ask us to correct it at any time.

In addition, you agree that we may monitor your use of the Farmax Services for any reasonable purpose associated with the services.

You acknowledged that you understand our full Privacy Policy, relating to the collection and use of personal information.

This Privacy Policy is available on the Farmax website or by clicking on this link. http://www.farmax.co.nz/legal-information/privacy-policy-2/

By agreeing to this End User License Agreement you also agree to the information in our privacy policy.

You may not assign or transfer any rights under these Terms without our prior written consent. We may assign or transfer any rights or obligations under these Terms without your approval and without the need to sign any further documentation.

You agree that these Terms and your use of the services are governed by the laws of New Zealand and you submit to the non-exclusive jurisdiction of the courts of New Zealand.