These terms and conditions outline the basis on which GlobalDairyTrade Holdings Limited ("GDT") agrees to provide the Subscriber with access to certain Data generated in connection with Trading Events on the Trading Platform.
Once accepted by the Subscriber, these terms and conditions constitute a legally binding agreement ("Agreement") between: (i) the Subscriber and GDT; and (ii) to the extent that the Subscriber uses the Data in the Subscriber's capacity as an employee, officer, consultant, adviser or other agent of a business or other organisation ("Organisation"), that Organisation and GDT. This Agreement commences on the date that the Subscriber purchases its first Subscription to the Data and continues in force until terminated in accordance with its terms.
GDT may make changes to any part of this Agreement at any time. When such a change is proposed, GDT will notify the Subscriber of that change, as well as the date on which that change will take effect. The Subscriber is responsible for ensuring that it has read and understood the latest version of this Agreement. By continuing to access and use the Data, the Subscriber accepts, and agrees to be bound by, the latest version of this Agreement for itself and on behalf of its Organisation (if applicable).
1. PROVISION OF DATA
1.1. Provision of Data: For the duration of the Subscription, GDT will supply, or make available, to the Subscriber the Data on the terms sets out in this Agreement.
1.2. Frequency: GDT reserves the right to change the frequency of the provision of the Data at any time and without liability. The Subscriber acknowledges that the frequency of the provision of the Data is (in part) dependent upon the frequency of the Trading Events, which may change from time to time.
1.3. Format of Data: GDT may determine the format in which the Data is provided to the Subscriber and reserves the right to change that format at any time (including part way through a Subscription) and without liability.
2. RESPONSIBILITY OF SUBSCRIBER
2.1. Subscriber's Organisation bound: In the event that the Subscriber uses the Data in the Subscriber's capacity as an employee, officer, consultant, adviser or other agent of an Organisation:
a. the Subscriber warrants that the Subscriber is authorised to act on behalf of that Organisation and to bind the Organisation (and accordingly acts or omissions of the Subscriber are deemed to be acts or omissions of the Organisation); and
b. both the Subscriber (in the Subscriber's own name) and the Organisation are parties to this Agreement and each reference to the "Subscriber" is a reference to the Subscriber and the Organisation such that both parties are bound by the obligations and acknowledgments of the "Subscriber", including, for the avoidance of doubt, for the purposes of clause 7 (but not for the purposes of clauses 1, 2.2, 3 or 5).
2.2. Login information: The Subscriber is responsible for keeping the Subscriber's login information, including user name and password, secret and secure. The Subscriber must not:
a. permit any other person (including any other employee, officer, consultant, adviser or other agent of the Subscriber or of the Subscriber's Organisation (if applicable)) to use the Subscriber's user name or otherwise gain access to the Subscriber's account and/or the Data (other than as permitted by this Agreement); or
b. disclose, or provide to any other person (including any other employee, officer, consultant, adviser or other agent of the Subscriber or of the Subscriber's Organisation (if applicable)), the Subscriber's password, email address, user name or any other information in connection with the Subscriber's registration that may allow them to gain access to the Subscriber's account and/or the Data.
2.3. Breach: If the Subscriber fails to comply with clause 2.2, the Subscriber agrees that the Subscriber will be bound by, and liable for, any actions taken by any other person accessing the Subscriber's account and/or the Data.
2.4. Subscriber's information: The Subscriber warrants and represents that the information provided to GDT when entering into the Subscription is complete and accurate. The Subscriber is responsible for updating any of the information provided to GDT if that information changes while this Agreement remains in force.
3. USE OF DATA
3.1. Licence: GDT grants to the Subscriber, for the duration of the Subscription, a limited, non-exclusive, non-transferable and non-sublicensable licence to:
a. access and store the Data;
b. use and reproduce the Data for the Subscriber's own internal purposes; and
c. use and reproduce the Data for the internal purposes of the Subscriber's Organisation only, provided that:
i. the Subscriber makes any persons to whom that information is disclosed aware of the terms of this Agreement (including the restrictions in clause 3.2) and the Subscriber agrees to be bound by and liable for the acts and omissions of such persons, as if those acts or omissions were the Subscriber's own acts or omissions; and
ii. except with the prior written consent of GDT, such use is:
aa. limited to the Subscriber summarising the Data and/or providing small excerpts of the Data for use in reports and presentations prepared for the internal purposes of the Organisation; and
bb. not done with the intent and/or effect of avoiding the purchase of any additional subscriptions by any other persons (including any persons who are employees, officers, consultants, advisers or other agents of the Subscriber or the same Organisation).
3.2. Restrictions: Except as expressly permitted by this Agreement, the Subscriber must not:
a. copy, reproduce, sell, let, modify, distribute or part with possession of (either in whole or in part) the Data or otherwise relay or disseminate the Data to any third party (including any client and/or customer of the Subscriber or the Subscriber's Organisation), without the prior written consent of GDT;
b. sublicense all or any part of the Data to any person or attempt to do so, without the prior written consent of GDT;
c. use the Data for an illegal purpose or otherwise in breach of any applicable laws in any relevant jurisdiction;
d. use a robot, spider, scraper or any other unauthorised automated means to access, acquire, copy or otherwise monitor the Data, without the prior written consent of GDT; or
e. use the Data in any manner that brings GDT into disrepute or other than as expressly permitted by this Agreement.
3.3. Use of Data in reports: In the event that the Subscriber wishes to include or cite any part of the Data in any report pursuant to clauses 3.1(c) or (with GDT's consent) 3.2(a), the Subscriber must ensure that such report (regardless of what form that report takes) bears GDT's copyright notice, with the appropriate year, as set out below:
3.4. No use of trade marks: Nothing in this Agreement provides to the Subscriber any rights to use any of GDT's or the Trading Manager's or any of their respective Affiliates' trade marks, business names or logos without GDT's or the Trading Manager's (as applicable) prior written consent.
3.5. Security: The Subscriber must ensure that it maintains adequate safeguards to ensure that no other person is able to obtain access to the Data. If the Subscriber becomes aware that any other person has accessed, or is attempting to access, the Data, the Subscriber must immediately notify GDT and take all such steps as are necessary to prevent such access, including, if necessary, by altering the manner in which it receives and uses the Data.
a. The Data is provided by GDT on an "as is" and "as available" basis, and the Subscriber acknowledges that the Subscriber accesses and uses the Data entirely at the Subscriber's own risk.
b. Neither GDT, the Trading Manager nor any of their respective Affiliates make any representation or warranty (whether express or implied) in relation to the Data, including as to the availability, reliability, accuracy, timeliness, completeness or fitness for any particular use or purpose of the Data. Once provided, GDT is under no obligation to update the Data during the Subscription.
c. The Subscriber acknowledges that the Data is being obtained for the purposes of a business and that it is not of a kind ordinarily acquired for personal, domestic or household use or consumption. The provisions of the New Zealand Consumer Guarantees Act 1993 and sections 9, 12A, 13 and 14(1) of the New Zealand Fair Trading Act 1986 do not apply.
d. The Data provides general information about the Trading Events and the Trading Platform only. GDT is not making any recommendation or giving any opinion in relation to any financial products or services by providing the Data. The Data is not investment advice and in no circumstances may it be relied upon as such by the Subscriber or any other person.
e. Under no circumstances is GDT under any obligation or duty to provide the Subscriber with any explanation, analysis and/or commentary (or similar) in relation to the outcome of any Trading Events.
5.1. Fees: In consideration for GDT providing the Subscriber with access to and use of the Data for the duration of the Subscription, the Subscriber agrees to pay the fees set from time to time by GDT for the access and use of the Data ("Fees"). No access will be provided to the Data unless and until the Fees for the Subscription have been paid by the Subscriber in full.
5.2. GST: The Fees are exclusive of any goods and services tax, value added tax or similar tax payable by GDT, which shall be paid by the Subscriber in addition to and at the same time as the Fees (or when otherwise invoiced for such tax).
5.3. Withholding: If any withholding or deduction is required by law to be made from payment of the Fees to GDT, the amount of the payment due from the Subscriber will be increased to an amount which (after making such withholding or deduction) will ensure that GDT receives and retains an amount equal to the payment which it would have received and retained if no withholding or deduction had been required.
6. AUDIT RIGHTS
6.1. Audit: GDT may, at its cost, from time to time audit the Subscriber to monitor and verify the Subscriber's compliance with the Subscriber's obligations under this Agreement. For this purpose, the Subscriber must provide GDT with access to all of the Subscriber's records (and those of the Subscriber's Organisation (if applicable)), as reasonably required by GDT to undertake the audit.
6.2. Result of audit: If an audit establishes, in GDT's reasonable opinion, that the Subscriber has failed or is failing to comply with this Agreement, then, without prejudice to any of GDT's rights and remedies under this Agreement or otherwise, the Subscriber must:
a. reimburse GDT for all of its costs and expenses suffered or incurred in undertaking the audit; and
b. comply with any reasonable directions of GDT to promptly rectify the areas of non-compliance identified in the audit, including by paying any amounts necessary to rectify any discrepancy in the Subscriber's access to or use of the Data.
7. LIMITATION OF LIABILITY, WARRANTIES AND INDEMNITY
7.1. No liability: To the maximum extent permitted by law, the Subscriber acknowledges and agrees that neither GDT, the Trading Manager nor any of their respective Affiliates (together the "Protected Persons") shall be liable to the Subscriber, the Subscriber's Organisation (if applicable) or any other person whatsoever in connection with, or relating to, this Agreement or the provision or use of the Data, including, but not limited to, liability arising:
a. from losses, claims, suits or causes of action for direct, incidental, indirect, special, punitive, multiple or consequential damages;
b. from loss of profits or loss of revenue (including solicitor's fees or litigation costs) or any other economic loss;
c. from the conduct of any Protected Person (including, but not limited to, negligence on the part of a Protected Person); or
d. from any decision made or action taken by the Subscriber, the Subscriber's Organisation (if applicable) or any other person in reliance upon the Data.
e. Limitation: Despite the provisions of clause 7.1 above, to the extent of any liability on the part of a Protected Person in connection with, or relating to, this Agreement or the provision or use of the Data, that Protected Person's liability (howsoever arising, including by way of negligence) will be limited to the amount of the Fees paid to GDT by the Subscriber in respect of the Subscriber's current Subscription.
7.2. Warranties: The Subscriber warrants and represents that:
a. the Subscriber has all necessary power, authority and capacity to enter into and carry out the Subscriber's obligations under this Agreement;
b. the entry into, and performance of, this Agreement, will not result in violation of any laws, restrictions or requirements to which the Subscriber is subject; and
c. subject to clause 2.1, the Subscriber enters into this Agreement as a principal (and not as an agent or in any other capacity whatsoever).
7.3. Indemnity: The Subscriber indemnifies, and will keep indemnified and will hold harmless, each Protected Person from and against any and all losses, costs, damages, claims, demands, liabilities, investigations or causes of action arising directly or indirectly from:
a. the Subscriber's:
i. use or misuse of the Data;
ii. breach of this Agreement, including but not limited to any unauthorised access to, or disclosure or use of, the Data;
iii. reliance upon the Data, including any advice given by the Subscriber derived in whole or in part from the Data;
iv. wilful or unlawful act or omission; or
v. loss, misuse or failure to properly secure the Subscriber's user name and password; or
b. a claim by any other person who receives any Data, directly or indirectly, from the Subscriber (regardless of whether or not that disclosure or reproduction by the Subscriber was permitted by clause 3.1(c)).
7.4. Privity: This Agreement (including clauses 7.1 to 7.4) is intended to confer benefits on the Protected Persons (including those not party to this Agreement), and it shall be enforceable by such persons in accordance with the terms of the New Zealand Contracts (Privity) Act 1982.
8.1. Termination for convenience: GDT may terminate this Agreement or the Subscription with immediate effect by providing written notice to the Subscriber. If GDT exercises its rights under this clause 8.1, it will pay to the Subscriber a pro-rata refund of the Fees reflecting the stage during the Subscription at which the termination is to take effect.
8.2. Suspension: If GDT has reason to believe (in its sole opinion) that the Subscriber has breached this Agreement, GDT may, at any time and without liability, suspend that Subscriber from accessing or using the Data. If a Subscriber is so suspended, then GDT may, as a condition of permitting the Subscriber to recommence accessing or using the Data, impose such conditions as it thinks fit.
8.3. Termination by GDT: GDT may terminate this Agreement or the Subscription at any time with immediate effect on written notice to the Subscriber if (in GDT's reasonable opinion) the Subscriber breaches this Agreement and, if such a breach is capable of remedy, the Subscriber fails to remedy that breach to the reasonable satisfaction of GDT within seven days after receiving written notice from GDT to remedy the breach.
8.4. Accrued rights and survival: The termination or suspension of this Agreement:
a. is without prejudice to any other right, power or remedy under the Agreement, at law, in equity or otherwise that GDT has in respect of a default by the Subscriber; and
b. will not affect the rights and obligations of the parties that are intended to survive beyond the termination or suspension of this Agreement (including any accrued rights), including clauses 3, 4, 7 and 10.
8.5. No refunds: Except where GDT exercise its rights under clause 8.1, the Fees paid or payable by the Subscriber to GDT under this Agreement shall be non-refundable (whether in whole or in part).
9.1. Dispute: If any dispute, difference or claim arises out of or in connection with this Agreement, or the subject matter of this Agreement ("Dispute"), one party may give notice to the other party of the Dispute ("Dispute Notice"), upon which GDT and the Subscriber will attempt to resolve the Dispute between them.
9.2. Arbitration: If the parties cannot resolve the Dispute within a reasonable period of the date of receipt of the Dispute Notice, either party may refer the Dispute for resolution by arbitration in accordance with the UNCITRAL Arbitration Rules ("Arbitration Rules"). The place of arbitration will be Singapore. The tribunal will consist of one arbitrator appointed in accordance with the Arbitration Rules. For the purpose of Article 6 of the Arbitration Rules, the appointing authority will be the Singapore International Arbitration Centre ("SIAC"), on the basis of the SIAC International Panel. The language of the arbitration will be English.
9.3. Interlocutory Relief: Nothing in this Agreement shall prevent GDT from seeking urgent interlocutory relief in a court of competent jurisdiction.
10. OWNERSHIP, PRIVACY AND OTHER DATA
10.1. Ownership of Data: The Subscriber acknowledges and agrees that:
a. all rights, title and interests in and to the Data, including without limitation, all information, text, materials, graphics, tools and/or results contained in the Data and any intellectual property rights which subsist in the Data, are owned by, and are proprietary to, GDT; and
b. the Subscriber obtains no rights to the Data, other than the limited right to use the Data as provided in this Agreement, and the Subscriber will not assert or otherwise contest any right, title or interest in or to the Data.
10.3. Other data: The Subscriber acknowledges and agrees that all rights, title and interest in all information and/or data that is generated in connection with the Subscription and the Subscriber's access to the Data (whether generated by GDT directly or otherwise) is owned by, and is proprietary to, GDT.
10.4. Marketing: If the Subscriber uses the Data in the Subscriber's capacity as an employee, officer, consultant, adviser or other agent of an Organisation, the Subscriber agrees that GDT may advertise, publish or promote the identity of that Organisation to third parties as part of GDT's marketing and publicity of its data subscription offering.
11.1. Notices: All notices under this Agreement must be in writing (which includes email) and are deemed to be delivered if sent (physically or electronically) to the address or email account held by, or specified to, GDT from time to time.
a. GDT may novate, assign, transfer, mortgage, charge, pledge or otherwise dispose of (including by way of sub-contract) (each a "Transfer") any of its rights, interests, obligations and liabilities in, to or under this Agreement to any person. If and to the extent that GDT transfers any obligations or liabilities in accordance with this clause, it will be released from such obligations or liabilities incurred after the date of such Transfer.
b. The Subscriber may not Transfer any of the Subscriber's rights, interests, obligations and liabilities in, to or under this Agreement to any person without GDT's prior written consent.
11.3. No Waiver: No term or condition of this Agreement will be deemed to have been waived in part or in full by GDT and no delay, breach or default will be deemed to have been excused in part or in full by GDT unless the waiver is in writing and signed by an authorised representative of GDT. A waiver of any breach will not be, or be deemed to be, a waiver of any other or subsequent breach.
11.4. Further acts: Both parties will make all applications, execute all documents and do all acts and things reasonably required to implement and to carry out their obligations under this Agreement.
11.5. Partial Invalidity: If any provision of this Agreement becomes or is held to be invalid, unenforceable or illegal for any reason, and in any respect, that provision shall be severed from the remaining terms and conditions, which shall continue in full force and effect.
11.6. Governing Law: This Agreement is governed by the laws of New Zealand. The Subscriber submits irrevocably to the non-exclusive jurisdiction of the courts of New Zealand.
12.1. Definition: In this Agreement, unless the context otherwise requires:
"Affiliate" means in relation to any person:
a. any person directly or indirectly controlling or controlled by, or under direct or indirect common control with, that person. A person will be deemed to control another person if that person possesses, directly or indirectly, the power to direct or cause the direction of the management or policies of that other person, whether by operation of law, by contract, through the ownership of voting securities or otherwise; and
b. any director, officer, employee, representative, agent or adviser of that person or any other person described in paragraph (a).
"Data" means certain information owned by GDT and generated from, or connected with, Trading Events on the GDT Events Trading Platform, and such other information that GDT determines from time to time.
"GDT Trading Event Rules" means the rules issued by GDT governing the use of the GDT Events Trading Platform, as amended from time to time.
"Subscriber" means the person who has entered into this Agreement with GDT in order to access and use the Data on the terms of this Agreement. For the avoidance of doubt, this definition should be read subject to clause 2.1 of this Agreement.
"Subscription" means the subscription to the Data purchased by the Subscriber from time to time, being either a monthly or annual subscription.
"Trading Event" means the GDT trading events at which participants offer dairy products for sale via the bidding website in accordance with the GDT Trading Event Rules.
"Trading Manager" means the trading manager appointed by GDT in accordance with the GDT Trading Event Rules, being, at the date of this version of the Agreement, CRA International, Inc.
"Trading Platform" means the trading platform known as "GDT Events" through which Trading Events are held.
12.2. Interpretation: In this Agreement, unless the context otherwise requires:
a. the headings appear as a matter of convenience and will not affect the construction of the Agreement;
b. the singular includes the plural and vice versa;
c. the words "written" and "writing" include email and any other means of communication resulting in permanent visible reproduction;
d. a reference to "days" means calendar days;
e. the word "person" includes any association of persons whether incorporated or unincorporated, and any state or government or department or agency thereof, whether or not having separate legal personality; and
f. unless stated otherwise, references to monetary amounts are to United States dollars (USD) currency and references to times are to New Zealand time.