Further Terms and Conditions - Use of Data
WARNING
Your permission to use the Data and Services is conditional upon you, the “Customer”, agreeing to the terms set out below. By clicking "I Accept" at the end of the terms, you confirm that you have read and accepted the terms. Acceptance will bind you to the terms. If you do not unconditionally accept the terms, you must not click “I Accept”, you must not use the Data or Services, and you must return or destroy all copies of the Data in your possession or control.
LICENCE
1. d-cyphaTrade grants to the Customer a non-exclusive, non-transferable licence to use the Data and Services on the following basis:
a) the Customer may use the Data and Services for its own internal information purposes only;
b) the Customer may allow its Related Parties to access the Data and Services to the extent necessary for the Customer’s internal information purposes;
c) the Customer may print hard copies, and electronically store copies, of the Data to the extent necessary for its own internal information purposes; and
d) the Customer will ensure all copyright, trademark and other proprietary notices and all disclaimers are retained in any copies of any Data produced under clause 1(c).
2. Except as expressly set out in clause 1, the Customer may not sell, sub-license, license, assign, make available, distribute, display, or transmit any Data or Services to any person.
3. The Customer must ensure that any of its Related Parties to whom it provides access to the Data or Services under clause 1(b) complies with the terms of this agreement as if that Related Party were a party to this agreement.
INTELLECTUAL PROPERTY
4. The Customer acknowledges that all Intellectual Property in the Data and Services is owned by d-cyphaTrade or its third party licensors.
WARRANTIES, LIABILITY AND INDEMNITIES
5. d-cyphaTrade will carry out its obligations under this agreement to the best of its knowledge and experience, using due diligence and care, and at all times exercising a reasonable degree of skill, competence and professionalism. d-cyphaTrade will use reasonable endeavours to ensure that the Data is accurate, complete, current and available.
6. Except as expressly set out in this agreement, or to the extent any warranty, representation or guarantee implied by law cannot be excluded, d-cyphaTrade gives no warranties, representations or guarantees in relation to the Data or Services, and (without limiting the above) d-cyphaTrade gives no warranty, representation or guarantee that the Data or Services will be accurate, complete, current, always available or fit for any particular purpose.
7. To the fullest extent permissible under law, d-cyphaTrade will not be liable to the Customer or any third party for any damages, losses or expenses (including any indirect, consequential or punitive losses or damages or any amounts for loss of income or profits) of any kind (arising in contract, tort or otherwise) suffered or incurred:
a) as a result of any failure of the Data or Services to be accurate, complete, current, always available or fit for any particular purpose;
b) in connection with the Customer's use of, inability to use, or reliance on, the Data or Services; or
c) as a result of any act or omission by the Customer.
8. If for any reason d-cyphaTrade or any of its Related Parties is liable to the Customer in connection with the Data or Services, the aggregate liability of d-cyphaTrade and its Related Parties to the Customer (whether in contract, tort or otherwise) is limited to the total subscription fees for the relevant Services paid by the Customer.
9. The Customer indemnifies d-cyphaTrade and its Related Parties against any damages, losses or expenses suffered or incurred by d-cyphaTrade or its Related Parties as a result of a claim by a third party as a result of a breach by the Customer of this agreement.
SUBSCRIPTIONS
10. The minimum subscription period for any Service is 12 months. The Customer will pay the relevant subscription fee in advance in such instalments as apply to the relevant Service and the Customer’s chosen payment method. A subscription for any Service will continue indefinitely after the first 12 months of the subscription provided that the Customer continues to pay the relevant subscription fee instalments in advance.
11. d-cyphaTrade may, at any time and without notice to the Customer, terminate or suspend a subscription for a Service if:
a) the Customer fails to pay when due any instalment of the subscription fee for the Service;
a) the Customer commits or threatens to commit any other material breach of this agreement; or
c) the relevant Data ceases to be available to DCT, or DCT ceases to have the right to provide it to the Customer, for any reason.
Termination or suspension of a subscription under paragraph (a) or (b) of this clause within the first 12 months of the subscription will not relieve the Customer of its obligation to pay the relevant subscription fee for the full 12 month period. Any outstanding subscription fee for the terminated or suspended subscription will become immediately payable.
12 If the Customer has chosen to pay subscription fees for a Service automatically by credit card, d-cyphaTrade will store the Customer’s credit card details and use them only for the purpose of processing the Customer’s subscription fee payments for the Service.
AMENDMENTS
13. d-cyphaTrade may amend the terms of this agreement from time to time. d-cyphaTrade will notify the Customer of any amendment to the terms, following which the Customer may terminate its subscription for any affected Service on notice to d-cyphaTrade given not later than 20 days after d-cyphaTrade’s notice. Otherwise, no variation to this agreement will be effective unless it is in writing and signed by duly authorised representatives of both parties.
GENERAL
14. This agreement records the entire agreement between the parties relating to the Data and Services and supersedes all previous arrangements, understandings, representations and agreements, whether written or oral, relating to the Data and Services.
15. This agreement is governed by the laws of New South Wales. The parties submit to the non-exclusive jurisdiction of the courts of New South Wales in respect of all matters relating to this agreement.
16. The Customer may not assign any of its rights or obligations under this agreement without the prior written consent of d-cyphaTrade. d-cyphaTrade may assign its rights and obligations under this agreement to a related company of d-cyphaTrade without the Customer’s consent.
17. If any provision of this agreement is or becomes invalid or unenforceable, that provision will be deemed deleted from this agreement. The invalidity or unenforceability of that provision will not affect the other provisions of this agreement, all of which will remain in full force and effect to the extent permitted by law, subject to any modifications made necessary by the deletion of the invalid or unenforceable provision.
18. Any waiver by either party of any of its rights or remedies under this agreement will be effective only if it is recorded in writing and signed by a duly authorised representative of that party.
19. The rights and remedies provided in this agreement are cumulative and not exclusive of any rights or remedies provided by law.
20. In this agreement the following terms have the meanings set out below unless the context requires otherwise:
"Data" means a dataset provided by d-cyphaTrade via the d-cyphaTrade online Data Centre, (secure or unsecured) FTP or any other medium;
"Intellectual Property" means copyright, all rights in relation to inventions, patents, registered and unregistered trade marks (including logos), registered and unregistered designs, domain names, rights in computer software and databases, circuit layouts, confidential information, and all other intellectual property rights anywhere in the world;
"Related Parties" means all and any employees, agents, suppliers, contractors and related companies of the relevant party (including, for d-cyphaTrade, Transpower New Zealand Limited and Energy Market Services Limited); and
“Service” means d-cyphaTrade’s provision of Data to the Customer.