WelFarm
XL Vets

Welfarm Terms of Use

1.
Status of Terms
1.1
These Terms are between every User of the System and Welfarm NZ..
1.2
These Terms are also between the legal owners of all data entered into the System and Welfarm NZ.
2.
Status of Licence
2.1
Welfarm NZ is permitted to grant licences of the System to Users pursuant to a Licence Agreement with XLV.
2.2
Welfarm NZ is not the owner of the System nor any Intellectual Property Rights arising in respect of the same.
3.
Permitted Use
3.1
The System is designed to facilitate data gathering, monitoring and benchmarking of animal health and welfare for dairy cows. The User is permitted to enter such data in to the System.
3.2
A User may access its data in the System and any data that the User is authorised to access by the legal owner of that data.
3.3
The Permitted Use of the System is subject to the obligations of the User in clause 6.
4.
Fees
4.1
The User, the employer of the User or the registered veterinary clinic which the User represents is responsible for paying all Fees set out in the Schedule.
4.2
The User acknowledges that Welfarm NZ may at any time review, amend or vary the Fees at its sole discretion, with written notice of one month of such variation taking effect.
5.
Data Collection and Ownership
5.1
By entering data into the System, the User grants Welfarm NZ and XLV a perpetual, irrevocable licence to access, aggregate, distribute, sublicence and otherwise utilise such data at the discretion of Welfarm NZ and XLV. The User agrees that it will not receive any royalty or any other payment for this licence.
5.2
By entering data into the System, the User warrants and represents that it is duly authorised and permitted to input such data by the legal owner of the data, and that the User has procured the legal owner’s acknowledgement, observance and consent of these Terms. The User acknowledges that Welfarm NZ and XLV place sole reliance on the User’s representation and warranty in this clause, and that if the User is in breach of this warranty or has misused any data, Welfarm NZ and XLV shall not be liable directly or indirectly to the legal owner of the data for such breach of warranty or misuse of data.
5.3
In addition to the above, the User acknowledges that Welfarm NZ owns all Intellectual Property Rights in relation to the aggregation of all data derived from the System, and waives any moral rights and releases Welfarm NZ from all claims, liabilities and obligations the User may have in relation to such aggregated data.
5.4
The User acknowledges that XLV is the legal owner of the System and the owner of all Intellectual Property Rights of and in relation to the System, including all improvements, modifications, developments or updates to the System. The User agrees to sign any document XLV considers necessary to convey, assign or perfect XLV’s ownership of all Intellectual Property Rights arising from any improvements, modifications, developments or updates to the System that the User suggests, creates or contributes towards.
6.
Obligations of User
6.1
The User must:
(a) meet, observe and comply with the Professional Requirements;
(b) only use the System for the Permitted Use;
(c) comply with any training, manuals or policies of Welfarm NZ in relation to the System;
(d) use all reasonable skill and care to accurately enter data into the System;
(e) not share any data without the express authorisation of the legal owner of that data;
(f) other than for back-up purposes, not copy, modify or distribute the System nor to communicate it to any third party without Welfarm NZ’s prior written consent;
(g) not reverse assemble, reverse compile, decompile, otherwise translate or reverse engineer the System except if expressly permitted by law;
(h) supervise and control the use of the System in accordance with these Terms;
(i) not restrict, block or otherwise interfere with the Welfarm NZ’s and XLV’s rights to compile and deal with the Data;
(j) not make the System available (including program listings, object and source program listings, object code and source code) in any form to any person without the prior written consent of the Licensor; and
(k) allow access to its premises and any premises under its control if the Licensor acting reasonably, notifies the Licensee that the Licensor wishes to audit the Licensee's use of the System at such premises.
6.2
If the User inputs data into the System, and the User is not the legal owner of that data, the User warrants and represents to Welfarm NZ and XLV that it is duly authorised to enter that data into the System by the legal owner and that the legal owner of that data agrees to be bound by these Terms.
6.3
The User acknowledges that Welfarm NZ may review, amend or otherwise vary the Professional Standards at any time at its discretion, and the User will take immediately take steps to comply with any amendments upon receiving notice of the same.
6.4
The User acknowledges that, at its own cost, its systems must meet the minimum standards required to operate the System, including but not limited to data backup, computer and internet security systems and internal policies for operating the System. Welfarm NZ is not responsible for ensuring that the User’s systems are sufficient to operate the System.
7.
Default
7.1
If Welfarm NZ has reason to believe that the User has breached these Terms in any way, Welfarm may:
(a) terminate, suspend or limit the User’s access to or use of the System;
(b) notify law enforcement, regulatory bodies or government authorities and affected third parties;
(c) refuse to provide access to the System to the User in the future; and/or
(d) take legal action against the User.
7.2
If Welfarm NZ determines that a User has breached these Terms, then the employer or veterinary clinic associated with that User shall also be deemed to be jointly and severally liable for such breach, and Welfarm NZ may exercise any rights available to it against the User and/or the User’s employer or associated veterinary clinic.
8.
Term and Termination
8.1
These Terms will remain in effect unless revoked by Welfarm NZ, and the User’s obligations to comply with these Terms shall survive the termination of the User’s right to use the System.
8.2
Welfarm NZ shall not be required to extract or return a User’s data to that User upon termination of the User’s right to use the System.
9.
Warranties and Liabilities
9.1
Welfarm NZ warrants to the User that it will publish data (or any aggregation thereof) in a reasonably anonymised format in a manner that will not identify an individual farm or farmer without the prior approval of the farmer or the owner/operator of that farm.
9.2
Welfarm NZ warrants to the User that it will use all reasonable endeavours to make the System available to the User, however Welfarm NZ is not liable to the User for any claims, costs, expenses or any other liabilities if the User’s access to the System is disrupted for any reason.
9.3
Welfarm NZ is not liable to the User for any act, omission or failure to fulfil its obligations under these Terms if such act, omission or failure arises from any cause reasonably beyond its control.
10.
Limitation of Liability
10.1
To the extent permitted by law, the maximum aggregate liability of Welfarm NZ and XLV in respect of providing the System to the User whether in contract, tort (including negligence), equity or otherwise, is limited to the aggregate of the Fees paid by that User for access to the System under these Terms.
11.
Privacy Policy
11.1
Welfarm NZ provides the System to the User in accordance with its Privacy Policy which can be found on Welfarm NZ’s website (https://xlvets.co.nz/content/privacy- policy).
11.2
The User agrees to observe and comply with Welfarm NZ’s Privacy Policy.
12.
Copies Copyright Notice
12.1
The User may not:
(a) use, copy, modify, or transfer the System, in whole or in part.;
(b) disassemble, decompile or reverse engineer the System; or
(c) make the System available in any form to any person.
13.
General
Amendment
13.1
Welfarm NZ may amend these Terms and the Schedules at its sole discretion by written notice to the User, such amendments (excluding changes to Fees pursuant to clause 4.2) being effective immediately upon Welfarm NZ publishing the amendments (and/or the amended Terms and Schedules) on its website. By using the System after the Welfarm has published such amendments to its website, the User agrees to accept and comply with the Terms and Schedules as amended.
Exclusion of implied relationships
13.2
Nothing contained in these Terms will be deemed or construed to constitute any party a partner, agent or representative of any other party, or to create any trust, and these Terms shall not be construed as giving to any party any of the rights or subjecting any party to any of the liabilities incidental to a partnership, agency, representative or trust relationship. No party may make any warranties or representations or incur any obligation on behalf of any other party.
Assignment
13.3
Except as expressly provided elsewhere in these Terms, a User may not assign, transfer or novate or purport to assign, transfer or novate any of its rights or obligations under these Terms without the prior written consent of Welfarm NZ. A change in the Effective Control of a Licensed User will be deemed to be an assignment for the purposes of this clause 15.3.
Whole Agreement
13.4
These Terms supersede all previous agreements in respect of its subject matter and embodies the entire agreement between the User and Welfarm NZ.
Further Acts
13.5
The User undertakes that it will promptly do all things reasonably required and execute all documents necessary or desirable to give full effect to the provisions of these Terms.
Severability
13.6
In the event that one or more provisions of these Terms are at any time found to be invalid or otherwise rendered unenforceable, such provision or provisions will be severable from these Terms, so that the validity or enforceability of the remaining provisions of these Terms are not affected.
Waiver
13.7
None of the provisions of these Terms will be considered to have been waived by Welfarm NZ except when such waiver is given in writing.
13.8
No delay or omission of Welfarm NZ in exercising any right, power, privilege or remedy (each, a “Right”) under these Terms will operate to impair such Right or be construed as a waiver of such Right. Any single or partial exercise of any such Right will not preclude any other future exercise of such Right or the exercise of any other Right.
13.9
No waiver by Welfarm NZ of any breach will be deemed a waiver of any continuing or recurring breach unless it is expressly agreed in writing to be so by Welfarm NZ.
Notices
13.10
Any notice, demand, consent or communication (“Notice”) which a User gives to Welfarm NZ concerning anything relating to these Terms must be in writing and delivered or sent (as the case may be) to Welfarm NZ’s designated address. Notices to Welfarm NZ must be delivered by hand to the designated address of Welfarm NZ or must be sent by post with postage pre-paid or by email to Welfarm NZ at that address.
For the purposes of this clause 13.10, Welfarm NZ’s “designated address” will be as follows:
(a) 64 Arena Avenue, Avenal, Invercargill 9810
(b) admin@xlvets.co.nz
13.11
The User is deemed to have received any Notice (including any amendments to these Terms or the Schedules) at the time it accesses the System following the giving of such Notice.
Governing Law and Jurisdiction
13.12
These Terms are governed by the laws of New Zealand and the parties submit to the exclusive jurisdiction of the New Zealand Courts.
Contractual Privity
13.13
The obligations of the User in these Terms are given for the benefit of and are enforceable in terms of subpart 1 of Part 2 of the Contract and Commercial Law Act 2017 of New Zealand by XLVNZ.
14.
Definitions and Interpretation
Definitions
14.1
In these Terms, unless the context otherwise requires:
"Effective Control" means, in relation to an Licensed User, the power to direct, whether directly or indirectly, the voting rights attaching to more than 50% of the issued shares of that Party, or the legal power to appoint more than half of the number of directors of that Party or otherwise to direct or cause the direction of the general management of that Party.
"Fees" means the fees payable in relation to the System described in Schedule A.
"Intellectual Property Rights" means all intellectual property rights, including rights in know-how, patents, layout designs, confidential information, copyright works, designs, inventions, plant varieties, trademarks and all other rights as defined by Article 2 of the Convention of July 1967 establishing the World IP Rights Organisation, whether registered or unregistered (including application for such rights) as may exist anywhere in the world at any time.
"Licensed User" means a party who is licenced to use the System pursuant to an Access Licence Agreement with Welfarm NZ or otherwise.
"Permitted Use" are the activities in relation to the System described in clause 3. "Professional Requirements" means the standards described in Schedule B.
"Terms" means these Welfarm Terms of Use as may be amended from time to time in accordance with these Terms.
"User" means the Licensed User and every officer, employee, director, contractor, agent and every other person under the Licensed User’s control.
"Welfarm NZ" means Welfarm NZ Limited and its successors and assignees;. "XLV" means XLVets Limited and its successors and assignees.
Interpretation
14.2
In these Terms, the following rules of interpretation apply, unless the context requires otherwise:
(a) where appropriate, a reference to or obligation of a User includes reference to and an obligation of a Licensed User;
(b) headings are for convenience only and do not affect interpretation;
(c) the singular includes the plural and conversely;
(d) a gender includes all genders;
(e) where a word or phrase is defined, its other grammatical forms have a corresponding meaning;
(f) a reference to a "person" includes a body corporate, an unincorporated body or other entity and conversely;
(g) a reference to "dollars" or "$" is to New Zealand currency and excludes every tax and duty;
(h) a reference to a "clause" or "schedule" is to a clause or schedule of these Terms;
(i) a reference to any statute or regulation includes all statutes or regulations amending, consolidating or replacing it, and a reference to a statute includes all regulations, orders and bylaws issued under that statute;
(j) the meaning of general words is not limited by specific examples introduced by "including" or "for example" or similar expressions;
(k) no rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of these Terms;
(l) references to any form of law is to New Zealand law, including as amended or re-enacted;
(m) if a party comprises more than one person, each of those person’s liability is joint and several;
(n) every right, power and remedy of a party remains unrestricted and may be exercised without prejudice to each other at any time;
(o) a party may give or withhold an approval or consent to be given under these Terms in that party’s absolute discretion and subject to those conditions determined by the party, and is not obliged to give its reasons for giving or withholding a consent or for giving a consent subject to conditions;
(p) references to a document or agreement includes it as varied, novated or replaced; and
(q) "written" and "in writing" include any means of reproducing words, figures or symbols in a tangible and visible form.
Schedule A – Fees (all fees are stated exclusive of GST)
Setup Fee
$2,000.00 per User (applicable to veterinarians and veterinary clinics)
Maintenance Fee
None
Usage Fee
$0.50(excluding GST) payable per cow or calf inputted into the System per annum or part thereof (or such 12 month period determined by the Licensor) by the User, calculated on an annual basis but payable monthly by the User to Welfarm NZ.
Other Fees (in respect of any services provided by Welfarm NZ to the User)
Example Service Hourly rate Daily rate
Administration $50.00 $300.00
Analytical and epidemiological $250.00 $1,800.00
Marketing $100.00 $600.00
Development $150.00 $1,000.00
Training $100.00 $600.00
The User will also pay reasonable costs associated with providing agreed services as above (e.g. travel and accommodation).
Schedule B – Professional Requirements
A.
Veterinarians using the System must hold a current practicing certificate and be registered with the Veterinary Council of New Zealand.
B.
Veterinarians and/or veterinary technicians performing Body Condition Scoring (BCS) shall be trained in the industry-standard BCS training and shall hold a current certificate in BCS.
C.
Veterinarians and/or veterinary technicians using the System must also meet any other training requirements determined and notified by Welfarm NZ.