Conditions of Use
Welcome to the Delytics® secure site, an easy-to-use cloud-based Decision Support Service (“DSS”) designed specifically for horticultural produce. These Conditions of Use are intended to explain Our (Delytics) obligations as a service provider and Your obligations and conditions of use as a Customer. Please read them carefully.
These Conditions are binding on any use of the Service and apply to You from the time that Delytics Limited (“Delytics”) provides You with access to the Service.
The Delytics® Decision Support Service will evolve over time. These Conditions are not intended to answer every question or address every issue raised by Your use of the DSS. Delytics reserves the right to change these Conditions at any time, effective when the modified Conditions are posted on the Delytics Website. It is Your responsibility to ensure that You have read, understood and agree to the most recent Conditions available on the Website. Your continued use of the Delytics Website after the posting of such updated Conditions of Use will constitute Your acceptance of such revised Conditions. If You do not understand and agree to these Conditions, You must not use the Delytics Website.
By registering to use the Service You acknowledge that You have read and understood these Conditions and have the authority to act on behalf of any person for whom You are using the Service. You are deemed to have agreed to these Conditions on behalf of any entity for whom You use the Service.
"Agreement" means these Conditions of Use.
"Applicable Charges" means the fee (excluding any taxes and duties) payable by You which includes Your use of the Website (which Delytics may change from time to time on notice to You).
"Confidential Information" includes all information exchanged between the parties to this Agreement, whether in writing, electronically or orally, including the Service but does not include information which is, or becomes, publicly available other than through unauthorised disclosure by the other party.
"Customer" means the person who registers to use the Service, and, where the context permits, includes any entity on whose behalf that person registers to use the Service.
"Data" means any data inputted by You or with Your authority into the Website.
"Delytics" means Delytics Limited [New Zealand company number 1855165], its licensors, and all current and future global subsidiaries of Delytics Limited.
"DSS" means the Delytics® Decision Support Service accessed via the Website.
"Intellectual Property Right" means any patent, trade mark, service mark, copyright, moral right, right in a design, know-how and any other intellectual or industrial property rights, anywhere in the world whether registered or not.
"Invited User" means any person or entity, other than the Customer, that uses the Service from time to time with the authorisation of the Customer.
“Licence” means the licence granted in terms of clause 2.1 of these Conditions of Use
"Service" means the Delytics® cloud-based Decision Support Service made available (as may be changed or updated from time to time by Delytics) via the Website.
"User" means any person that uses the Service from time to time.
"You" means the Customer, and where the context permits, an Invited User. "Your" has a corresponding meaning.
2.Use of Software
On payment of the Applicable Charges and subject to these Conditions of Use, Delytics grants You a limited, personal, non-exclusive, non-assignable, and non-transferable license to access and use the Delytics® Decision Support Service (which includes for clarification any information or documentation that Delytics may make available to You from time to time in relation to Your access to or use of the DSS) only for purposes associated with Your interaction with the DSS, for a period of twelve consecutive calendar months (the “License”). Thereafter, the License will automatically renew for consecutive twelve month terms subject to Your payment of the applicable License renewal charges, unless terminated by either party at least 30 days prior to the end of any twelve month term or otherwise terminated by Delytics for a cause (e.g. Clause 4.2). The Applicable Charges are waived for the first 21 days when You register as a Try for Free user and Your License will only be valid for these 21 days. At the end of this 21 day period You will be required to pay the Applicable Charges for Your continued use of the DSS. This License grants You the right to access and use the DSS for Your own business purposes only. You will keep confidential and not disclose to any person or entity outside Your business operation any of the information retrieved by You in the course of accessing or using DSS.
Delytics reserves the right to make modifications or changes to the DSS (which changes may or may not affect the functionality and/or the User’s ability to use the DSS) without notice to You or any User at any time and at Delytics’ sole discretion. As Your access to and use of the DSS is internet based, it may be affected by limitations, delays, interception and other problems inherent to the use of the internet and electronic communications. Delytics is not responsible or liable for any delays, interception, delivery failures, or any other similar or dissimilar damage resulting from such problems.
Delytics shall not be responsible or liable for the deletion, correction, corruption, destruction, damage, loss or failure to store any Customer Data. Delytics reserves the right to withhold, remove and/or discard Customer Data without notice, for any breach, including, without limitation, non-payment of any charges.
2.3.Decision Support Resource
The Delytics® Decision Support Service is made available to Users as a decision support resource only and is not intended to be a substitute for good horticultural practice and the application of knowledge, expertise and good judgement gained by the pre-harvest or post-harvest horticulturalist or User over time. You understand and agree that the functionality, predictions and use of the DSS generally may be affected by a range of external factors including but not limited to the presence of pests and diseases, weather fluctuations, unforeseen weather conditions and events, seed type and quality, variations in soil structure and composition, application of fertiliser of all kinds and variations in the amount of water applied to the crop, post-harvest environmental conditions and treatments.
An invoice for the Applicable Charges will be issued annually starting from the date Your account was activated. Delytics will continue invoicing You annually until this Agreement is terminated in accordance with clause 8.
All Delytics invoices will be sent to You, or to a Billing Contact whose details are provided by You, by email. You must pay or arrange payment of all amounts specified in any invoice by the due date for payment which are payable within 10 days of the invoice date. You are responsible for payment of all taxes and duties in addition to the Applicable Charges.
You acknowledge that You are responsible for all Data, text, information, images, and material that You enter or submit in connection with the DSS. You agree that You, and not Delytics, will have sole responsibility for the accuracy, quality, integrity, legality, reliability, timeliness, and appropriateness, of all Your Data.
You may be offered preferential pricing for access to the Service. Without prejudice to any other rights that Delytics may have under these Conditions or at law, Delytics reserves the right to render invoices for the full Applicable Charges due or suspend or terminate Your use of the Service in the event that any invoices for those Applicable Charges are not paid in full by the due date for payment.
You must only use the Service and Website for Your own lawful internal business purposes, in accordance with these Conditions and any notice sent by Delytics or condition posted on the Website. You must not use the Service for or on behalf of any third party unless expressly authorised by Delytics in writing.
You must ensure that all usernames and passwords required to access the Service are kept secure and confidential. You must immediately notify Delytics of any unauthorised use of Your passwords or any other breach of security and Delytics can reset Your password. You must take all other actions that Delytics reasonably deems necessary to maintain or enhance the security of Delytics’ computing systems and networks and Your access to the Services.
As a condition of these Conditions, when accessing and using the Services, You must:
- not attempt to undermine the security or integrity of Delytics’ computing systems or networks or, where the Services are hosted by a third party, that third party's computing systems and networks;
- not use, or misuse, the Services in any way which may impair the functionality of the Services or Website, or other systems used to deliver the Services or impair the ability of any other user to use the Services or Website;
- not attempt to gain unauthorised access to any materials other than those to which You have been given express permission to access or to the computer system on which the Services are hosted;
- not transmit, or input into the Website, any: files that may damage any other person's computing devices or software, content that may be offensive, or material or Data in violation of any law (including Data or other material protected by copyright or trade secrets which You do not have the right to use); and
- not attempt to modify, copy, adapt, reproduce, disassemble, decompile or reverse engineer any computer programs used to deliver the Services or to operate the Website except as is strictly necessary to use either of them for normal operation.
Use of the Service may be subject to limitations, including but not limited to monthly transaction volumes and the number of calls You are permitted to make against Delytics’ application programming interface. Any such limitations will be advised.
As a condition of these Conditions, if You use any communication tools available through the Website (such as any forum, chat room or message centre), You agree only to use such communication tools for lawful and legitimate purposes. You must not use any such communication tool for posting or disseminating any material unrelated to the use of the Services, including (but not limited to): offers of goods or services for sale, unsolicited commercial e-mail, files that may damage any other person's computing devices or software, content that may be offensive to any other users of the Services or the Website, or material in violation of any law (including material that is protected by copyright or trade secrets which You do not have the right to use).
When You make any communication on the Website, You represent that You are permitted to make such communication. Delytics is under no obligation to ensure that the communications on the Website are legitimate or that they are related only to the use of the Services. As with any other web-based forum, You must exercise caution when using the communication tools available on the Website. However, Delytics does reserve the right to remove any communication at any time in its sole discretion.
3.5.Limitations on License
Except as expressly permitted by the Conditions of the License, You shall have no right to copy, download, display, perform, reproduce, distribute, modify, edit, alter, translate, adopt or enhance any of the Delytics® DSS in any manner or (to the extent such restriction is allowed by law) reverse engineer or decompile any code, script, or software forming part of the DSS, or permit any third party to do same. Upon termination of this License, You must cease to use the DSS and immediately destroy any downloaded and printed materials. You have no right, title or interest (and no copyright, trademark or other intellectual property right) in or to the DSS or any information or materials related thereto and You shall not "frame" or "mirror" the DSS, any information contained on, framed within, or accessible from or through the DSS on any other server or Internet-based device without the advanced written authorization of Delytics.
The Delytics® DSS is password restricted to authorized users only and can only be accessed with the login account and password assigned to You by Delytics. Even though the DSS may allow You to change Your password, You shall be responsible for maintaining the confidentiality of Your password and login account, and agree to notify Delytics if the password is lost, stolen, disclosed to an unauthorized third party, or may have been compromised.
You agree to immediately notify Delytics of any unauthorized use of Your account or any other breach or attempted breach of security known to You in relation to the DSS. Delytics reserves the right to revoke Your password and access to the Site at any time and for any reason.
4.Confidentiality and Privacy
Unless the relevant party has the prior written consent of the other or unless required to do so by law:
- Each party will preserve the confidentiality of all Confidential Information of the other obtained in connection with these Conditions. Neither party will, without the prior written consent of the other, disclose or make any Confidential Information available to any person, or use the same for its own benefit, other than as contemplated by these Conditions.
- Each party's obligations under this clause will survive termination of these Conditions.
- The confidentiality provisions shall not apply to any information which:
- is or becomes public knowledge other than by a breach of this clause;
- is received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure;
- is in the possession of the receiving party without restriction in relation to disclosure before the date of receipt from the disclosing party; or
- is independently developed without access to the Confidential Information.
Title to, and all Intellectual Property Rights in the Services, the Website and any documentation relating to the Services remain the property of Delytics (or its licensors).
5.2.Ownership of Data
Title to, and all Intellectual Property Rights in, the Data remain Your property. However, Your access to the Data is contingent on full payment of the Delytics Applicable Charges when due. You grant Delytics a licence to use, copy, transmit, store, and back-up Your information and Data for the purposes of enabling You to access and use the Services and for any other purpose related to the provision of services to You.
5.3.Backup of Data
You must maintain copies of all Data inputted into the Service. Delytics has policies and procedures to prevent data loss, including a daily system data back-up regime, but does not make any guarantees that there will be no loss of Data. Delytics expressly excludes liability for any loss of Data no matter how caused.
5.4.Third-party applications and your Data.
Delytics shall have no obligation to ensure or to enable Your ability to use the DSS in combination with any other software, hardware, telemetry equipment or processes. Where You use the DSS in conjunction with any telemetry equipment made available to You by and/or through a third party approved by Delytics in writing, an additional charge will be payable to Delytics in relation to Your use of the DSS in conjunction with such telemetry equipment. In all other respects, Your access to and use of such telemetry equipment will be solely in accordance with the Conditions of Supply provided to You by such supplier of telemetry equipment at the time You place your order. For clarification, You will look solely to the manufacturer and/or supplier of such telemetry equipment and not to Delytics for remedies in relation to any such telemetry equipment. You shall indemnify Delytics for claims arising from any infringement arising from the combination of the Delytics® DSS with the telemetry equipment and/or any of Your products, software, service, hardware or business processes.
5.5.Links to Third Party Sites
The Delytics® DSS may be linked to other websites on the World Wide Web that are not under the control of, or maintained by, Delytics. Such links do not constitute an endorsement by Delytics or its licensors of any such websites or the products or services offered through such websites. You acknowledge that Delytics is providing these links to You only as a convenience, and that neither Delytics nor its licensors is responsible for the business practices, content, privacy policies or links displayed on such websites or products and services offered through such sites to which You may be linked and Your access to these websites is at Your own risk.
6.Warranties and Acknowledgements
You warrant that where You have registered to use the Service on behalf of another person, You have the authority to agree to these Conditions on behalf of that person and agree that by registering to use the Service You bind the person on whose behalf You act to the performance of any and all obligations that You become subject to by virtue of these Conditions, without limiting Your own personal obligations under these Conditions.
You acknowledge that:
- You are authorised to use the Services and the Website and to access the information and Data that You input into the Website, including any information or Data input into the Website by any person you have authorised to use the Service. You are also authorised to access the processed information and Data that is made available to You through Your use of the Website and the Services (whether that information and Data is Your own or that of anyone else).
- Delytics has no responsibility to any person other than You and nothing in this Agreement confers, or purports to confer, a benefit on any person other than You. If You use the Services or access the Website on behalf of, or for the benefit of, anyone other than yourself (whether a body corporate or otherwise) you agree that:
- You are responsible for ensuring that You have the right to do so;
- You are responsible for authorising any person who is given access to information or Data, and you agree that Delytics has no obligation to provide any person access to such information or Data without Your authorisation and may refer any requests for information to You to address; and
- You will indemnify Delytics against any claims or loss relating to:
- Delytics’ refusal to provide any person access to Your information or Data in accordance with these Conditions,
- Delytics’ making available information or Data to any person with Your authorisation.
- The provision of, access to, and use of, the Services is on an "as is " basis and at Your own risk.
- Delytics does not warrant that the use of the Service will be uninterrupted or error free. Among other things, the operation and availability of the systems used for accessing the Service, including public telephone services, computer networks and the Internet, can be unpredictable and may from time to time interfere with or prevent access to the Services. Delytics is not in any way responsible for any such interference or prevention of Your access or use of the Services.
It is Your sole responsibility to determine that the Services meet the needs of Your business and are suitable for the purposes for which they are used.
It is Your responsibility to check that storage of and access to your Data via the Software and the Website will comply with laws applicable to you (including any laws requiring you to retain records).
Delytics gives no warranty about the Services. Without limiting the foregoing, Delytics does not warrant that the Services will meet Your requirements or that it will be suitable for any particular purpose. To avoid doubt, all implied conditions or warranties are excluded in so far as is permitted by law, including (without limitation) warranties of merchantability, fitness for purpose, title and non-infringement.
6.4.Disclaimer of Warranties and Limitation on Liability
Your use of, and any reliance upon, the Delytics® DSS and its services or functionality, including, but not limited to, information, materials, agronomic information, weather forecast, simulations, forecasts, and advice is at Your own sole risk. The Delytics® DSS may contain embedded third party software and/or algorithms and Delytics and its licensors expressly disclaims any and all warranties and/or liability in relation to any third party components of the Delytics® DSS. You are solely responsible for ensuring the accuracy, currency and completeness of any information You provide or submit to the Delytics® DSS, and for verifying the reliability, timeliness, quality, suitability, truth, availability, accuracy or completeness of information obtained through the DSS, Your Data or any content.
Delytics or its licensors do not warrant the accuracy, completeness or timeliness of the Delytics® DSS or its functionality or services. Delytics will not be liable to You or to any third party for any bugs, errors, defects or omissions in the DSS, whether provided by Delytics or third parties and Delytics does not guarantee the availability of the DSS.
6.5.As-Is, As Available and Where-Is Basis
The Delytics® DSS, and the content, goods or services available from or through the DSS are provided to You on an "as is", "as available" and "where-is" basis, without any warranties or conditions of any kind. Delytics, for itself and any third party providing materials, services, or content to the DSS or services, provides no representations, warranties in connection with or regarding the DSS or services, including but not limited to the suitability, truth, accuracy or completeness of any content, material, information, product, representation, or services contained on or obtainable through the DSS.
6.6.Limitation of Statutory Warranties
To the fullest extent permitted by law, all representations, warranties and conditions, whether express or implied, statutory or otherwise, including, but not limited to, any implied warranty or condition of quality, merchantability, fitness for a particular purpose, or non-infringement of third party rights, or those arising out of a course of dealing or usage of trade are hereby disclaimed. Specifically, Delytics or its licensors makes no warranty regarding the availability of the DSS, the services, any Data stored on or obtainable through the DSS, Your access to the DSS or Your Data, or the accuracy of any information either stored or provided via the DSS.
6.7.No Liability for Damages
Delytics or its licensors shall not be liable to You or any third party for any loss or damages of any kind, including but not limited to, direct, indirect, incidental, consequential or punitive damages, or lost profits or revenue or failure to realize expected savings arising from or connected with the DSS and services, including but not limited to, Your use of the DSS or services or Your inability to use the DSS or access Your Data, even if Delytics has previously been advised of the possibility of such damages. To the extent any liability arises on behalf of Delytics related to the DSS or its services, You agree that the maximum liability of Delytics will be limited to the total charges You have paid to Delytics over the preceding twelve months for the license to use the DSS.
Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential or certain other types of damages, and so to the extent such exclusions or limitations are not permitted by law, those exclusions or limitations may not apply to You.
You warrant and represent that You are acquiring the right to access and use the Services for the purposes of Your business and/or commercial benefit and that, to the maximum extent permitted by law, any statutory consumer guarantees or legislation intended to protect non-business consumers in any jurisdiction does not apply to the supply of the Services, Your use of the Website or these Conditions.
8.Limitation of Liability
To the maximum extent permitted by law, Delytics excludes all liability and responsibility to You (or any other person) in contract, tort (including negligence), or otherwise, for any loss (including loss of information, Data, profits and savings) or damage resulting, directly or indirectly, including all consequencial loss from any use of, or reliance on, the Service or Website.
If You suffer loss (including consequencial loss) or damage as a result of Delytics’ negligence or failure to comply with these Conditions, any claim by You against Delytics arising from Delytics’ negligence or failure will be limited in respect of any one incident, or series of connected incidents, to the Applicable Charges paid by You in the previous 12 months.
If You are not satisfied with the Service, Your sole and exclusive remedy is to terminate Your Agreement with Delytics and immediately cease using the Service.
Delytics may offer You a trial period. If You choose to continue using the Services thereafter, You will be billed from the day the trial period expires. If You choose not to continue using the Services, You may set Your organisation as not active and discontinue using it from that time forward.
Delytics will not provide any refund for any remaining prepaid period for a prepaid Applicable Charges subscription.
These Conditions will continue for the period covered by the Applicable Charges paid or payable under clause 3.1. At the end of each billing period these Conditions will automatically continue for another period of the same duration as that period, provided You continue to pay the prescribed Applicable Charges when due, unless either party terminates these Conditions by giving notice to the other party at least 30 days before the end of the relevant payment period. If You terminate these Conditions You shall be liable to pay all relevant Applicable Charges on a pro-rata basis for each day of the then current period up to and including the day of termination of these Conditions.
Where Delytics believes, on reasonable grounds, that You are in breach of these Conditions of Use (including but not limited to Your failure to pay any charges applicable to Your use of the Delytics® DSS in full and when due) or becomes aware of inappropriate or unauthorized use of the DSS or any of its content or functionality, Delytics will respond in a way that, in its sole discretion, it deems appropriate. This may include restricting, suspending, or terminating Your access to the DSS. Additionally, Delytics may terminate Your License to access and use the DSS without notice at any time for any reason, or for no reason at all. Delytics reserves the right to impose a reconnection fee if Your account is suspended and thereafter You request access to the DSS.
Termination of these Conditions is without prejudice to any rights and obligations of the parties accrued up to and including the date of termination. On termination of this Agreement You will:
- remain liable for any accrued charges and amounts which become due for payment before or after termination; and
- immediately cease to use the Services and the Website.
9.6.Survival of Conditions
Clauses 3.1, 4, 5, 6, 7, 8 and 11 survive the expiry or termination of these Conditions.
The termination or expiry of the License shall not serve to eliminate any liability arising out of Your conduct prior to or following the actual date of termination and Delytics or its licensors may, following such termination or expiry, pursue such remedies as may be available with respect to such liabilities.
In the case of technical problems You must make all reasonable efforts to investigate and diagnose problems before contacting Delytics. If You still need technical help, please check the support provided online by Delytics on the Website or failing that email us at email@example.com.
Whilst Delytics intends that the Services should be available 24 hours a day, seven days a week, it is possible that on occasions the Services or Website may be unavailable to permit maintenance or other development activity to take place.
If for any reason Delytics has to interrupt the Services for longer periods than Delytics would normally expect, Delytics will use reasonable endeavours to publish in advance details of such activity on the Website.
11.2.Modification of terms
Delytics reserves the right to revise these Conditions of Use at any time by posting an updated version of these Conditions of Use on the Delytics website. You are responsible for regularly reviewing the website and familiarising itself with any changes or updates to these Conditions of Use. Your continued use of the DSS after the posting of such updated Conditions of Use will constitute Your acceptance of such revised Conditions.
You indemnify Delytics against: all claims, costs, damage and loss arising from Your breach of any of these Conditions or any obligation You may have to Delytics, including (but not limited to) any costs relating to the recovery of any Applicable Charges that are due but have not been paid by You.
You alone are responsible for Your actions related to the use of the DSS and the actions of any person using Your user name and/or password. As such, You shall defend, indemnify and hold Delytics and its licensors and its affiliates and their respective officers, directors, employees, affiliates, agents, licensors, and business partners harmless from and against any and all claims, demands, lawsuits, costs, damages, liabilities, and expenses (including legal fees on a solicitor and client basis) incurred, claimed or alleged, relating in any way to:
- Your breach of these Conditions of Use;
- Your use of the Delytics® DSS or the use of the DSS by any person using Your user name and/or password;
- the entry, sufficiency, adequacy, accuracy, or timeliness of the Delytics® DSS content or Your Data;
- any claim that Your Customer Data, or the Customer Data of any person using the Your user name and/or password, violates the intellectual property rights of any third party or are otherwise defamatory or libellous in any country.
If either party waives any breach of these Conditions, this will not constitute a waiver of any other breach. No waiver will be effective unless made in writing.
Neither party will be liable for any delay or failure in performance of its obligations under these Conditions if the delay or failure is due to any cause outside its reasonable control. This clause does not apply to any obligation to pay money.
You may not assign or transfer any rights to any other person without Delytics’ prior written consent.
11.7.Governing law and jurisdiction
Any action related to these Conditions of Use or their subject matter will be governed by New Zealand law, without regard to the choice or conflicts of law provisions of any jurisdiction. You agree to submit to the exclusive jurisdiction of the courts of New Zealand, for the resolution of all disputes arising from or related to these Conditions of Use and/or its access to or use of the DSS. Hamilton New Zealand shall be deemed to be the place where You and Delytics agreed on these Conditions of Use.
If any part or provision of these Conditions is invalid, unenforceable or in conflict with the law, that part or provision is replaced with a provision which, as far as possible, accomplishes the original purpose of that part or provision. The remainder of this Agreement will be binding on the parties.
All notices, requests, consents and other communications under these Conditions shall be in writing and shall be given to Delytics or You at the address set forth below or at such other address as they individually may specify in writing from time to time:
To Delytics, use the email address; firstname.lastname@example.org or by post or by personal service – to the Delytics registered office as published on the New Zealand Companies Office web site [marked for the attention of the Chief Executive].
To the Customer, use the email address listed in the “Account details” section of the Customer’s online account with Delytics as provided under these Conditions
All notices, communications, requests and consents delivered by email are deemed to have been received when there is an acknowledgement of receipt of the email transmission
Notice by any other means permitted by law, including mail, fax or personal service, shall be deemed to be served as recognised by law.
If the DSS Service is not available for Your use at any time during the Term, due to any unforseen or force majeure event or any event not controlled by Delytics, Your right to that service is suspended for that period and Delytics shall have no liability to You for the period of the suspension of the Service and you have not right to pursue any claim for any loss (actual, economic, consequential or otherwise) You may incur.
11.11.Rights of Third Parties
A person who is not a party to these Conditions has no right to benefit under or to enforce any term of these Conditions.
Version Date: 12/06/2013