Background and Context
Under Section 2.8 of the Code (as defined below), it is acknowledged that poor data on location of assets is “contributing to an unnecessary level of Third Party Damage, additional costs and liabilities, delayed Works and reduced performance of all Utility Structures.” To improve the quality and trustworthiness of data, the Code places a responsibility for maintaining and providing accurate location information with utility operators and encourages all parties to confirm and verify data related to underground assets. To that end, Wellington City Council has invested in the Platform (as defined below) to facilitate the coordination and management of data related to underground assets.
The Platform is designed to enable those involved in construction activities and other stakeholders to see underground asset data displayed graphically on a map of New Zealand and assist in the coordination of construction, maintenance and renewal programmes across multiple programme owners by assisting in “clash analysis” and providing opportunities for collaboration among different stakeholder organisations. The platform is designed to incorporate tools that support feedback between sector participants around data quality; particularly on the presence or absence of underground assets, and the accuracy of the information pertaining to these assets. This feedback is intended to enhance the accuracy and completeness of underground asset data, over time, for the benefit of all sector participants. Additionally, the Platform is also designed with varying ‘security levels’ to protect sensitive information of data providers.
Introduction
You must accept these Terms and Condition (T&Cs) before accessing and using the Platform. If you do not agree to the terms of these T&Cs, then you must not use, and must ensure that no other person uses, the Platform.
By accessing the Platform, you consent to be bound by these T&Cs, and are deemed to be a party to this End User Licence Agreement or EULA (as defined below). If you do not agree with all of the terms and conditions of this EULA, do not access the Platform.
This EULA is entered into by you as an end user of the Platform. You confirm that you have the authority to act on behalf of any entity for whom you are using the Platform.
From time to time we may need to make changes to this EULA. Please check these T&Cs frequently to stay updated with any changes to this EULA and you agree by continuing to access or use the Platform to be bound by the updated T&Cs.
1. Definitions and Interpretation
1.1 In this EULA, unless the context otherwise requires:
(a) Code means the National Code of Practice for Utility Operators’ Access to Transport Corridors Version 2 dated 15 July 2019, as updated from time to time.
(b) Data means the underground asset data or information contained within the Platform.
(c) End User Licence Agreement or EULA means the contract incorporating these T&Cs that is formed: (a) on your acceptance, in writing, of these T&Cs; or (b) upon your access of the Platform.
(d) Intellectual Property Rights means any intellectual property rights, title and interests (including common law rights and interests) in any jurisdiction including:
(i) patents, trademarks, service marks, copyright, registered designs, trade names, domain names, symbols and logos;
(ii) patent applications and applications to register trademarks, service marks and designs; and
(iii) confidential information, trade secrets and know-how and rights in tools, techniques, computer program code, databases, data inventions, discoveries, developments, information and logical sequences (whether or not reduced to writing or other machine or human readable form).
(e) Platform means the Underground Asset Register online viewer platform provided by or on behalf of Wellington City Council or another agency or organisation (the Sponsors) and operated by us.
(f) Security Level(s) means, from time to time, the Platform’s different security level classification for Data, each of which has different restrictions for details of Data available to you to protect the commercially sensitive nature of such data (such as for commercial, national security, or other valid reasons). The Security Levels are available here: https://www.NZUAR.org/securitylevels
(g) Territory means New Zealand.
(h) User Purposes means for the purposes of better understanding, accommodating and planning for construction activities.
(i) We, us or our means Digital Built Aotearoa Foundation (charity number CC61273).
(j) You means the user of the Platform and your has a corresponding meaning.
1.2 Interpretation: In this EULA, unless the context indicates otherwise:
(a) Headings: clause and other headings are for ease of reference only and will not affect the EULA’s interpretation;
(b) Negative Obligations: any obligation not to do anything includes an obligation not to suffer, permit or cause that thing to be done;
(c) Inclusive Expressions: wherever the words includes or including (or any similar words) are used, they are deemed to be followed by the words “without limitation”;
(d) Plural and Singular: where the context permits, the singular includes the plural and vice versa;
(e) Parties: references to any party mean a party to this EULA and include that party’s successors and permitted assignees (as the case may be);
(f) Persons: where the context permits, references to a person include an individual, firm, company, corporation or unincorporated body of persons, any public, territorial or regional authority, any government, and any agency of any government or of any such authority;
(g) Monetary Amounts: all monetary amounts are in New Zealand currency; and
(h) Statutory Provisions: references to any statutory provision include any statutory provision which amends or replaces it, and any bylaw, regulation, order, statutory instrument or other determination made under it.
2. Use and Licence
2.1 Subject to your compliance with the EULA, we grant to you and you accept from us, a non-exclusive, non-transferable and non-assignable, non-sub-licensable, revocable licence in the Territory for you to access and use the Platform for the User Purposes. Your licence under this clause is limited to:
(a) viewing visualisations of the Data (in accordance with such Data’s applicable Security Levels) on the Platform;
(b) taking isolated screenshots of areas that are limited to your specific work(s) or, in the case of authorised agencies and organisations, limited to areas that are relevant to the agency or organisation’s planning activity;
(c) noting any implications that the location of a specific underground asset element may have on your or related works;
(d) discussing such implications with the relevant provider(s) of the data and organisations or others involved with your or related works; and
(e) if we, at our sole discretion, grant you permission to download Data, downloading, retaining, and storing that Data in accordance with our written instructions.
2.2 The licence granted in accordance with clause 2.1 does not extend to:
(a) public distribution of the Data, whether via the internet or otherwise;
(b) passing or allowing access to the Platform or any Data to any third party;
(c) accessing all or any part of the Platform or the Data to build a product or service which competes with the Platform or the Data (or any part of them);
(d) commercially exploiting, selling, licensing or distributing the Platform or any Data or any products or services incorporating the results retrieved using the Platform or any Data; or
(e) the Platform’s design elements or to any government or other organisations’ emblems or logos. These elements, emblems and logos may not be reproduced without our written consent.
2.3 We reserve the right to modify or amend the Platform (or any part of it) at our sole discretion. Due to information improvements, changes to the Data may occur quickly and without notice.
2.4 You must use your best endeavours to report back to us any wrongly recorded objects within the Data or any buried objects not identified within the Data. You must not take any action that might undermine the integrity of the Platform. As part of contributing to the ongoing improvement of underground asset data we encourage you to capture site observations and note the presence or absence of assets you encounter.
2.5 You acknowledge and agree that:
(a) the provision of the Data via the Platform does not relieve you of your obligation to take all reasonable care (including by adhering to industry best practice and/or Worksafe’s Excavation Safety guide) and exercise all reasonable diligence when performing any excavation or other works or of your obligations under any applicable laws (including the Code);
(b) the Data may only be used for general guidance and no explanation or advice is offered in relation to such Data. The Data is not intended to constitute professional advice or diagnosis or explanation and if you need advice, information or explanation about the Data, you should consult a professional person;
(c) as the Data in the Platform is indicative only, you must not rely solely on the Platform or the Data:
(i) without any professional consultation or independent consideration by a qualified practitioner as appropriate;
(ii) as a substitute for advice or information from a qualified professional; or
(iii) to make any decision (including any decisions relating to physical construction, excavation or other works);
(d) your licence to use the Platform and access the Data in accordance with clause 2.1 is subject to the restrictions of the relevant Data’s Security Level classification;
(e) we may, at our sole discretion, amend and update the Security Levels applicable to any Data at any time and from time to time;
(f) you may not be able to access certain Data or only access certain Data at a more restrictive Security Level (as compared to other users of the Platform), as access to such Data is restricted by the agreements between us and the data provider(s);
(g) certain Security Level classifications will obfuscate the geospatial location of underground assets;
(h) you have read, understood and agree to our privacy policy;
(i) under the Code, we expect updates to Data to be provided within three (3) months of the completion of a new infrastructure asset, so where the Data is more than three (3) months old on the Platform, you should confirm with the relevant data provider if there are updates to such Data;
(j) we may, at our sole discretion:
(i) allow certain user unlimited reasonable use of our APIs;
(ii) restrict unreasonable use of our APIs; and
(iii) limit the number of areas of interest that you are able to draw per day (e.g. a rate limit); and
(k) we will collect, monitor and log data related to your usage of the Platform to ensure your compliance with these T&Cs, and we may provide such data to a Sponsor at a Sponsor’s reasonable request (such as to meet the Sponsor’s obligations under the Code), but we will not share such data with other users of the Platform.
2.6 You must not:
(a) extract, disassemble, decompile, reverse engineer, translate, creative derivative works or otherwise seek to reveal the operating logic of any part of the Platform;
(b) use the Platform to derive the source code, underlying ideas, algorithms, structure or organisation, or any similar action, in a manner that facilitates the creation or development of an Application Programming Interface (API) or any functionality of Platform;
(c) use or permit (whether directly or indirectly) the use of the Platform for the purpose of training artificial intelligence technologies to generate text or works, including technologies that are capable of generating works in the same style as any part of the Platform;
(d) conduct, facilitate, authorise or permit any text or data mining or web scraping for any purpose in relation to the Platform, or the Data;
(e) upload or transmit to or from the Platform any material (including datasets, comments and feedback) that is obscene, defamatory, threatening, invasive of privacy or that is otherwise, in our opinion, injurious or objectionable, including any worms or viruses or any code of a destructive nature; and
(f) use or permit (whether directly or indirectly) the use of the Platform for any illegal or unethical purpose; or
(g) defeat, avoid, by-pass, remove, deactivate or otherwise circumvent any software protection mechanisms in the Platform (or any part of them), including, without limitation, any such mechanism used to restrict or control the functionality of the Platform (or any part of it).
3. Registration
3.1 You are required to obtain a logon (username, email and password) before being able to enjoy the Platform. You must take reasonable care of your logon and keep it secure. This includes:
(a) not disclosing your username and password to others or allowing others to see it;
(b) not leaving an unsecured computer or device that is logged in to the Platform unattended; and
(c) not sharing your logon with any other person.
3.2 We are not responsible for any unauthorised access to or use of your logon. You must immediately notify us:
(a) if you believe the secrecy of your password has been compromised; or
(b) you become aware of any unauthorised use of your username or password or logged-in session.
3.3 You warrant that all information supplied by you to us for the purposes of registration on the Platform and accessing the Platform is true, correct and up to date. Where information supplied by you to us includes personal information, you will ensure, and warrant, that you have permission to provide that personal information for the purposes of our providing the Platform to you.
3.4 You authorise us to use, store or otherwise process any personal information supplied by you to us, to the extent reasonably necessary for us to provide the Platform. By accepting these T&Cs you agree to the processing and disclosure of such personal information to the extent reasonably necessary for us to provide the Platform.
3.5 If you cease to work for the organisation to which your logon email belongs to, you are required to:
(a) notify us at: support@nzuar.org.nz; and
(b) cease using such logon email address to access the Platform.
If you wish to continue using the Platform, you must apply for a new logon account using an email from the organisation you are associated with.
4. Exclusion of Warranties
4.1 We provide access to the Platform and the Data on an “as is” and “as available” basis, without any warranties (express or implied) of any kind, including as to the completeness, accuracy, reliability or suitability of the Platform or the Data, other than warranties which cannot be excluded by law. To avoid doubt, the provisions of the Consumer Guarantees Act 1993 are excluded to the maximum extent permitted by law.
4.2 You acknowledge that we have not taken any steps to verify the Data and as such the Data may be incorrect, duplicated, incomplete, or misleading. You must not make, or allow to be made, any representations to any other person that this Data is reliable without our prior written consent. You indemnify us for any claims made against us as a result of any such representation being made by or on your behalf.
4.3 If you wish to confirm the accuracy of Data at any point in time, you may confirm it directly with the relevant organisation that provided such Data.
5. Limitation of Liabilities
5.1 Your access to and use of the Platform and Data, is at your sole risk. To the maximum extent permitted by law, we, our employees, agents and affiliates exclude all liability for loss or damage (including loss of, or damage to, physical property, personal injury or death) arising out of or in connection with your use of the Platform or the Data, whether or not such loss or damage was foreseeable, or you advised us of the possibility of the loss or damage.
5.2 We, our employees, agents and affiliates will not be liable to you for any loss or damage howsoever arising in connection with any decisions, consequences or actions taken by you or any other person in connection with or in purported reliance on the Platform or the Data.
5.3 We will not be liable to you for any loss or damage arising from delay or failure to perform our obligations due to any matter beyond our reasonable control nor any loss or damage caused or contributed to by you.
5.4 To the extent permitted by law, you indemnify us and will keep us indemnified against any liability, damages, expenses, costs or compensation that we may have to pay any party for any act, error or omission of yours or your employees, agents or servants whatsoever.
5.5 We will not be responsible for any disruption to the Platform or for loss or corruption of any information or Data whilst in transit or when downloaded onto any computer system from the Platform.
5.6 Your sole remedy against us is limited to breach of contract and we and our employees and agents will not be liable to you for any claim for breach of statute or breach of duty in tort (including negligence) or for any claim in equity or otherwise at law. We will not, in any case, be liable for any other losses or damages whether general, exemplary, punitive, direct, indirect or consequential, including loss of business profits.
5.7 Our maximum liability to you under or in connection with this EULA (whether in contract, tort or otherwise), as an aggregate in respect of all events and breaches of EULA, is limited to $500.
6. Intellectual Property Rights
6.1 Unless otherwise indicated, we (or our licensors) hold all rights, including Intellectual Property Rights, in the Data, the Platform and other material on the Platform, and you agree that you will have no claim to ownership of such rights.
6.2 Where you create records on the Platform of underground assets you have observed (Observation Data), you grant a non-exclusive, royalty-free, perpetual, world-wide and irrevocable licence to us to use, distribute, sublicence, communicate, copy, adapt, translate, reproduce or modify the Observation Data for any purpose (including to operate and/or provide the Platform).
7. Confidentiality
7.1 You agree that:
(a) the Data and visualisations of such Data are confidential;
(b) any unauthorised use or disclosure of them is strictly prohibited;
(c) damages would not be a sufficient remedy in the event of wrongful use or disclosure (for reasons of public health and safety, national interest, commercial sensitivity or otherwise); and
(d) we or the relevant data provider may seek urgent interlocutory relief to protect the Data and visualisations in the event of unauthorised use or disclosure.
7.2 If at any time you becomes aware of a breach of the confidentiality requirements of this EULA or of any other unauthorized use of the Data outside those specified in this EULA, you will make all reasonable efforts to notify us of that breach in a timely manner. The parties will work together in good faith to investigate and remediate such breach.
8. Term, Suspension and Termination
8.1 This EULA will be in effect from the first time you access the Platform, and will remain in effect until terminated in accordance with its terms.
8.2 Without limiting any other right or remedy available to us under this EULA, if you are in breach of any term of this EULA, we may suspend your access to the Platform until the relevant breach has been remedied.
8.3 We may also suspend your access to the Platform at any time:
(a) for such time as is necessary to carry out maintenance determined by us to be necessary or desirable;
(b) to reduce or prevent interference with the Platform; or
(c) if required to do so as a result of a direction by any government, law enforcement or other authority.
8.4 Either party may terminate this EULA, without cause, on 30 days’ written notice to the other party.
8.5 Termination of this EULA will not affect the parties’ rights and obligations intended to survive termination, including clauses 4, 5 and 7.
9. Third Party Rights
9.1 The provisions of clauses 2, 5 and 7 are intended to be for the benefit of all providers of data to the Platform and to be enforceable by them under Part 2, Subpart 1 (Contractual Privity) of the Contract and Commercial Law Act 2017.
10. Disputes
10.1 If a dispute arises out of or in connection with this EULA, the parties will use reasonable endeavours to resolve the dispute by good faith negotiations between them for a period of fourteen (14) days (or such longer period as the parties may agree).
10.2 No party may issue any legal proceedings (other than for urgent interlocutory relief) in respect of any dispute under this EULA unless that party has first complied with the process set out in clause 10.1.
11. General
11.1 Entire Agreement: This EULA constitutes the entire agreement between the parties and supersedes all prior agreements, understandings, negotiations, representations, and discussions, whether oral or written, of the parties.
11.2 Notices: Any notice or correspondence required to be given or sent by either party to the other must be in writing and be sent to the email address set out below:
(a) Us: support@NZUAR.org.nz; and
(b) You: the e-mail address specified when you create your logon.
11.3 Waiver: No party will be treated as having waived any right under this EULA unless the waiver is in writing and signed by such party. Any such waiver by a party of a breach of any provision of this EULA will not constitute a waiver of any subsequent or continuing breach of such provision or of the breach of any other provision of this EULA by that party.
11.4 Relationship: Nothing expressed or implied in this EULA constitutes any party as the partner, agent, employee or officer of, or as a joint venturer with, the other party. No party will make any contrary representation to any other person.
11.5 Severability: If any provision (or part of a provision) of these T&Cs is found by any court to be invalid, unenforceable or illegal, the other provisions will remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision will apply with whatever modification is necessary to give effect to the intention of the parties.
11.6 Transfer and assignment: You agree that we may assign, transfer or novate any or all of our rights and obligations under these T&Cs to any public sector agency or other organisation that may come to assume ongoing responsibility for this Platform (and, if relevant, any public version of the Underground Asset Register). You may not assign, transfer or novate any or all of your rights and obligations under this EULA without our prior written consent.
11.7 Revisions to terms: We may revise these T&Cs at any time. Any such revisions will take effect once notified through a post or other announcement on the Platform detailing the respect(s) in which the T&Cs have changed. Continued use of the Platform after the effective date of any such revisions, through the act of your logging in to the Platform, indicates your acceptance of those revisions.
11.8 Governing Law and Jurisdiction: This EULA will be governed by and interpreted in accordance with New Zealand law and the parties submit to the non-exclusive jurisdiction of the courts of New Zealand.
Background and Context
Under Section 2.8 of the Code (as defined below), it is acknowledged that poor data on location of assets is “contributing to an unnecessary level of Third Party Damage, additional costs and liabilities, delayed Works and reduced performance of all Utility Structures.” To improve the quality and trustworthiness of data, the Code places a responsibility for maintaining and providing accurate location information with utility operators and encourages all parties to confirm and verify data related to underground assets. To that end, Wellington City Council has invested in the Platform (as defined below) to facilitate the coordination and management of data related to underground assets.
The Platform is designed to enable those involved in construction activities and other stakeholders to see underground asset data displayed graphically on a map of New Zealand and assist in the coordination of construction, maintenance and renewal programmes across multiple programme owners by assisting in “clash analysis” and providing opportunities for collaboration among different stakeholder organisations. The platform is designed to incorporate tools that support feedback between sector participants around data quality; particularly on the presence or absence of underground assets, and the accuracy of the information pertaining to these assets. This feedback is intended to enhance the accuracy and completeness of underground asset data, over time, for the benefit of all sector participants. Additionally, the Platform is also designed with varying ‘security levels’ to protect sensitive information of data providers.
Introduction
You must accept these Terms and Condition (T&Cs) before accessing and using the Platform. If you do not agree to the terms of these T&Cs, then you must not use, and must ensure that no other person uses, the Platform.
By accessing the Platform, you consent to be bound by these T&Cs, and are deemed to be a party to this End User Licence Agreement or EULA (as defined below). If you do not agree with all of the terms and conditions of this EULA, do not access the Platform.
This EULA is entered into by you as an end user of the Platform. You confirm that you have the authority to act on behalf of any entity for whom you are using the Platform.
From time to time we may need to make changes to this EULA. Please check these T&Cs frequently to stay updated with any changes to this EULA and you agree by continuing to access or use the Platform to be bound by the updated T&Cs.
1. Definitions and Interpretation
1.1 In this EULA, unless the context otherwise requires:
(a) Code means the National Code of Practice for Utility Operators’ Access to Transport Corridors Version 2 dated 15 July 2019, as updated from time to time.
(b) Data means the underground asset data or information contained within the Platform.
(c) End User Licence Agreement or EULA means the contract incorporating these T&Cs that is formed: (a) on your acceptance, in writing, of these T&Cs; or (b) upon your access of the Platform.
(d) Intellectual Property Rights means any intellectual property rights, title and interests (including common law rights and interests) in any jurisdiction including:
(i) patents, trademarks, service marks, copyright, registered designs, trade names, domain names, symbols and logos;
(ii) patent applications and applications to register trademarks, service marks and designs; and
(iii) confidential information, trade secrets and know-how and rights in tools, techniques, computer program code, databases, data inventions, discoveries, developments, information and logical sequences (whether or not reduced to writing or other machine or human readable form).
(e) Platform means the Underground Asset Register online viewer platform provided by or on behalf of Wellington City Council or another agency or organisation (the Sponsors) and operated by us.
(f) Security Level(s) means, from time to time, the Platform’s different security level classification for Data, each of which has different restrictions for details of Data available to you to protect the commercially sensitive nature of such data (such as for commercial, national security, or other valid reasons). The Security Levels are available here: https://www.NZUAR.org/securitylevels
(g) Territory means New Zealand.
(h) User Purposes means for the purposes of better understanding, accommodating and planning for construction activities.
(i) We, us or our means Digital Built Aotearoa Foundation (charity number CC61273).
(j) You means the user of the Platform and your has a corresponding meaning.
1.2 Interpretation: In this EULA, unless the context indicates otherwise:
(a) Headings: clause and other headings are for ease of reference only and will not affect the EULA’s interpretation;
(b) Negative Obligations: any obligation not to do anything includes an obligation not to suffer, permit or cause that thing to be done;
(c) Inclusive Expressions: wherever the words includes or including (or any similar words) are used, they are deemed to be followed by the words “without limitation”;
(d) Plural and Singular: where the context permits, the singular includes the plural and vice versa;
(e) Parties: references to any party mean a party to this EULA and include that party’s successors and permitted assignees (as the case may be);
(f) Persons: where the context permits, references to a person include an individual, firm, company, corporation or unincorporated body of persons, any public, territorial or regional authority, any government, and any agency of any government or of any such authority;
(g) Monetary Amounts: all monetary amounts are in New Zealand currency; and
(h) Statutory Provisions: references to any statutory provision include any statutory provision which amends or replaces it, and any bylaw, regulation, order, statutory instrument or other determination made under it.
2. Use and Licence
2.1 Subject to your compliance with the EULA, we grant to you and you accept from us, a non-exclusive, non-transferable and non-assignable, non-sub-licensable, revocable licence in the Territory for you to access and use the Platform for the User Purposes. Your licence under this clause is limited to:
(a) viewing visualisations of the Data (in accordance with such Data’s applicable Security Levels) on the Platform;
(b) taking isolated screenshots of areas that are limited to your specific work(s) or, in the case of authorised agencies and organisations, limited to areas that are relevant to the agency or organisation’s planning activity;
(c) noting any implications that the location of a specific underground asset element may have on your or related works;
(d) discussing such implications with the relevant provider(s) of the data and organisations or others involved with your or related works; and
(e) if we, at our sole discretion, grant you permission to download Data, downloading, retaining, and storing that Data in accordance with our written instructions.
2.2 The licence granted in accordance with clause 2.1 does not extend to:
(a) public distribution of the Data, whether via the internet or otherwise;
(b) passing or allowing access to the Platform or any Data to any third party;
(c) accessing all or any part of the Platform or the Data to build a product or service which competes with the Platform or the Data (or any part of them);
(d) commercially exploiting, selling, licensing or distributing the Platform or any Data or any products or services incorporating the results retrieved using the Platform or any Data; or
(e) the Platform’s design elements or to any government or other organisations’ emblems or logos. These elements, emblems and logos may not be reproduced without our written consent.
2.3 We reserve the right to modify or amend the Platform (or any part of it) at our sole discretion. Due to information improvements, changes to the Data may occur quickly and without notice.
2.4 You must use your best endeavours to report back to us any wrongly recorded objects within the Data or any buried objects not identified within the Data. You must not take any action that might undermine the integrity of the Platform. As part of contributing to the ongoing improvement of underground asset data we encourage you to capture site observations and note the presence or absence of assets you encounter.
2.5 You acknowledge and agree that:
(a) the provision of the Data via the Platform does not relieve you of your obligation to take all reasonable care (including by adhering to industry best practice and/or Worksafe’s Excavation Safety guide) and exercise all reasonable diligence when performing any excavation or other works or of your obligations under any applicable laws (including the Code);
(b) the Data may only be used for general guidance and no explanation or advice is offered in relation to such Data. The Data is not intended to constitute professional advice or diagnosis or explanation and if you need advice, information or explanation about the Data, you should consult a professional person;
(c) as the Data in the Platform is indicative only, you must not rely solely on the Platform or the Data:
(i) without any professional consultation or independent consideration by a qualified practitioner as appropriate;
(ii) as a substitute for advice or information from a qualified professional; or
(iii) to make any decision (including any decisions relating to physical construction, excavation or other works);
(d) your licence to use the Platform and access the Data in accordance with clause 2.1 is subject to the restrictions of the relevant Data’s Security Level classification;
(e) we may, at our sole discretion, amend and update the Security Levels applicable to any Data at any time and from time to time;
(f) you may not be able to access certain Data or only access certain Data at a more restrictive Security Level (as compared to other users of the Platform), as access to such Data is restricted by the agreements between us and the data provider(s);
(g) certain Security Level classifications will obfuscate the geospatial location of underground assets;
(h) you have read, understood and agree to our privacy policy;
(i) under the Code, we expect updates to Data to be provided within three (3) months of the completion of a new infrastructure asset, so where the Data is more than three (3) months old on the Platform, you should confirm with the relevant data provider if there are updates to such Data;
(j) we may, at our sole discretion:
(i) allow certain user unlimited reasonable use of our APIs;
(ii) restrict unreasonable use of our APIs; and
(iii) limit the number of areas of interest that you are able to draw per day (e.g. a rate limit); and
(k) we will collect, monitor and log data related to your usage of the Platform to ensure your compliance with these T&Cs, and we may provide such data to a Sponsor at a Sponsor’s reasonable request (such as to meet the Sponsor’s obligations under the Code), but we will not share such data with other users of the Platform.
2.6 You must not:
(a) extract, disassemble, decompile, reverse engineer, translate, creative derivative works or otherwise seek to reveal the operating logic of any part of the Platform;
(b) use the Platform to derive the source code, underlying ideas, algorithms, structure or organisation, or any similar action, in a manner that facilitates the creation or development of an Application Programming Interface (API) or any functionality of Platform;
(c) use or permit (whether directly or indirectly) the use of the Platform for the purpose of training artificial intelligence technologies to generate text or works, including technologies that are capable of generating works in the same style as any part of the Platform;
(d) conduct, facilitate, authorise or permit any text or data mining or web scraping for any purpose in relation to the Platform, or the Data;
(e) upload or transmit to or from the Platform any material (including datasets, comments and feedback) that is obscene, defamatory, threatening, invasive of privacy or that is otherwise, in our opinion, injurious or objectionable, including any worms or viruses or any code of a destructive nature; and
(f) use or permit (whether directly or indirectly) the use of the Platform for any illegal or unethical purpose; or
(g) defeat, avoid, by-pass, remove, deactivate or otherwise circumvent any software protection mechanisms in the Platform (or any part of them), including, without limitation, any such mechanism used to restrict or control the functionality of the Platform (or any part of it).
3. Registration
3.1 You are required to obtain a logon (username, email and password) before being able to enjoy the Platform. You must take reasonable care of your logon and keep it secure. This includes:
(a) not disclosing your username and password to others or allowing others to see it;
(b) not leaving an unsecured computer or device that is logged in to the Platform unattended; and
(c) not sharing your logon with any other person.
3.2 We are not responsible for any unauthorised access to or use of your logon. You must immediately notify us:
(a) if you believe the secrecy of your password has been compromised; or
(b) you become aware of any unauthorised use of your username or password or logged-in session.
3.3 You warrant that all information supplied by you to us for the purposes of registration on the Platform and accessing the Platform is true, correct and up to date. Where information supplied by you to us includes personal information, you will ensure, and warrant, that you have permission to provide that personal information for the purposes of our providing the Platform to you.
3.4 You authorise us to use, store or otherwise process any personal information supplied by you to us, to the extent reasonably necessary for us to provide the Platform. By accepting these T&Cs you agree to the processing and disclosure of such personal information to the extent reasonably necessary for us to provide the Platform.
3.5 If you cease to work for the organisation to which your logon email belongs to, you are required to:
(a) notify us at: support@nzuar.org.nz; and
(b) cease using such logon email address to access the Platform.
If you wish to continue using the Platform, you must apply for a new logon account using an email from the organisation you are associated with.
4. Exclusion of Warranties
4.1 We provide access to the Platform and the Data on an “as is” and “as available” basis, without any warranties (express or implied) of any kind, including as to the completeness, accuracy, reliability or suitability of the Platform or the Data, other than warranties which cannot be excluded by law. To avoid doubt, the provisions of the Consumer Guarantees Act 1993 are excluded to the maximum extent permitted by law.
4.2 You acknowledge that we have not taken any steps to verify the Data and as such the Data may be incorrect, duplicated, incomplete, or misleading. You must not make, or allow to be made, any representations to any other person that this Data is reliable without our prior written consent. You indemnify us for any claims made against us as a result of any such representation being made by or on your behalf.
4.3 If you wish to confirm the accuracy of Data at any point in time, you may confirm it directly with the relevant organisation that provided such Data.
5. Limitation of Liabilities
5.1 Your access to and use of the Platform and Data, is at your sole risk. To the maximum extent permitted by law, we, our employees, agents and affiliates exclude all liability for loss or damage (including loss of, or damage to, physical property, personal injury or death) arising out of or in connection with your use of the Platform or the Data, whether or not such loss or damage was foreseeable, or you advised us of the possibility of the loss or damage.
5.2 We, our employees, agents and affiliates will not be liable to you for any loss or damage howsoever arising in connection with any decisions, consequences or actions taken by you or any other person in connection with or in purported reliance on the Platform or the Data.
5.3 We will not be liable to you for any loss or damage arising from delay or failure to perform our obligations due to any matter beyond our reasonable control nor any loss or damage caused or contributed to by you.
5.4 To the extent permitted by law, you indemnify us and will keep us indemnified against any liability, damages, expenses, costs or compensation that we may have to pay any party for any act, error or omission of yours or your employees, agents or servants whatsoever.
5.5 We will not be responsible for any disruption to the Platform or for loss or corruption of any information or Data whilst in transit or when downloaded onto any computer system from the Platform.
5.6 Your sole remedy against us is limited to breach of contract and we and our employees and agents will not be liable to you for any claim for breach of statute or breach of duty in tort (including negligence) or for any claim in equity or otherwise at law. We will not, in any case, be liable for any other losses or damages whether general, exemplary, punitive, direct, indirect or consequential, including loss of business profits.
5.7 Our maximum liability to you under or in connection with this EULA (whether in contract, tort or otherwise), as an aggregate in respect of all events and breaches of EULA, is limited to $500.
6. Intellectual Property Rights
6.1 Unless otherwise indicated, we (or our licensors) hold all rights, including Intellectual Property Rights, in the Data, the Platform and other material on the Platform, and you agree that you will have no claim to ownership of such rights.
6.2 Where you create records on the Platform of underground assets you have observed (Observation Data), you grant a non-exclusive, royalty-free, perpetual, world-wide and irrevocable licence to us to use, distribute, sublicence, communicate, copy, adapt, translate, reproduce or modify the Observation Data for any purpose (including to operate and/or provide the Platform).
7. Confidentiality
7.1 You agree that:
(a) the Data and visualisations of such Data are confidential;
(b) any unauthorised use or disclosure of them is strictly prohibited;
(c) damages would not be a sufficient remedy in the event of wrongful use or disclosure (for reasons of public health and safety, national interest, commercial sensitivity or otherwise); and
(d) we or the relevant data provider may seek urgent interlocutory relief to protect the Data and visualisations in the event of unauthorised use or disclosure.
7.2 If at any time you becomes aware of a breach of the confidentiality requirements of this EULA or of any other unauthorized use of the Data outside those specified in this EULA, you will make all reasonable efforts to notify us of that breach in a timely manner. The parties will work together in good faith to investigate and remediate such breach.
8. Term, Suspension and Termination
8.1 This EULA will be in effect from the first time you access the Platform, and will remain in effect until terminated in accordance with its terms.
8.2 Without limiting any other right or remedy available to us under this EULA, if you are in breach of any term of this EULA, we may suspend your access to the Platform until the relevant breach has been remedied.
8.3 We may also suspend your access to the Platform at any time:
(a) for such time as is necessary to carry out maintenance determined by us to be necessary or desirable;
(b) to reduce or prevent interference with the Platform; or
(c) if required to do so as a result of a direction by any government, law enforcement or other authority.
8.4 Either party may terminate this EULA, without cause, on 30 days’ written notice to the other party.
8.5 Termination of this EULA will not affect the parties’ rights and obligations intended to survive termination, including clauses 4, 5 and 7.
9. Third Party Rights
9.1 The provisions of clauses 2, 5 and 7 are intended to be for the benefit of all providers of data to the Platform and to be enforceable by them under Part 2, Subpart 1 (Contractual Privity) of the Contract and Commercial Law Act 2017.
10. Disputes
10.1 If a dispute arises out of or in connection with this EULA, the parties will use reasonable endeavours to resolve the dispute by good faith negotiations between them for a period of fourteen (14) days (or such longer period as the parties may agree).
10.2 No party may issue any legal proceedings (other than for urgent interlocutory relief) in respect of any dispute under this EULA unless that party has first complied with the process set out in clause 10.1.
11. General
11.1 Entire Agreement: This EULA constitutes the entire agreement between the parties and supersedes all prior agreements, understandings, negotiations, representations, and discussions, whether oral or written, of the parties.
11.2 Notices: Any notice or correspondence required to be given or sent by either party to the other must be in writing and be sent to the email address set out below:
(a) Us: support@NZUAR.org.nz; and
(b) You: the e-mail address specified when you create your logon.
11.3 Waiver: No party will be treated as having waived any right under this EULA unless the waiver is in writing and signed by such party. Any such waiver by a party of a breach of any provision of this EULA will not constitute a waiver of any subsequent or continuing breach of such provision or of the breach of any other provision of this EULA by that party.
11.4 Relationship: Nothing expressed or implied in this EULA constitutes any party as the partner, agent, employee or officer of, or as a joint venturer with, the other party. No party will make any contrary representation to any other person.
11.5 Severability: If any provision (or part of a provision) of these T&Cs is found by any court to be invalid, unenforceable or illegal, the other provisions will remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision will apply with whatever modification is necessary to give effect to the intention of the parties.
11.6 Transfer and assignment: You agree that we may assign, transfer or novate any or all of our rights and obligations under these T&Cs to any public sector agency or other organisation that may come to assume ongoing responsibility for this Platform (and, if relevant, any public version of the Underground Asset Register). You may not assign, transfer or novate any or all of your rights and obligations under this EULA without our prior written consent.
11.7 Revisions to terms: We may revise these T&Cs at any time. Any such revisions will take effect once notified through a post or other announcement on the Platform detailing the respect(s) in which the T&Cs have changed. Continued use of the Platform after the effective date of any such revisions, through the act of your logging in to the Platform, indicates your acceptance of those revisions.
11.8 Governing Law and Jurisdiction: This EULA will be governed by and interpreted in accordance with New Zealand law and the parties submit to the non-exclusive jurisdiction of the courts of New Zealand.
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