Xerra terms and conditions

Last updated: 9 December 2020

These terms and conditions (Terms) apply to Starboard and all related Services provided by Xerra.

If you are accessing the Services on behalf of an organisation of any type, you agree to these Terms on behalf of that organisation and warrant that you have the power to do so.

If you do not agree to these Terms, or do not have the authority to agree on behalf of your organisation, you must not access or use the Services.

  1. Introduction

    1. These Terms apply to your use of the Services. By accessing any of the Services, you agree to these Terms.

  2. Changes

    1. Xerra may change these Terms at any time by updating them on the Website. Unless stated otherwise, any change takes effect immediately.

    2. You are responsible for ensuring that you are familiar with the latest Terms. By continuing to access and use the Services, you agree to be bound by the changed Terms.

    3. In these Terms, unless the context otherwise requires:

      1. the headings are for convenience only and have no legal effect;

      2. the singular includes the plural and vice versa;

      3. “including” and similar words do not imply any limit;

      4. person includes an individual, a body corporate, an association of persons (whether corporate or not), a trust, a government department, or any other entity; and

      5. monetary references refer to New Zealand dollars.

  3. Services

    1. Subject to your paying the Fees when due and remaining in compliance with these Terms, you may access and use the Services to which you subscribe on a non-exclusive basis.

    2. You may only access and use the Services for which you have paid the applicable Fees, for the period of access you’ve selected.

    3. Xerra will use its reasonable efforts to make the Services available, however you acknowledge that Services may be unavailable from time to time to permit maintenance or other development activity to take place.

    4. From time to time Xerra may advise you of additional terms or restrictions that apply to a particular function or feature, or on your use of the Services. You must immediately comply with all such additional terms and restrictions, which immediately become part of these Terms.

  4. Support

    1. Xerra will use reasonable efforts to provide email support. Xerra is not required to provide support, or may charge you for any support provided.

  5. General obligations

    1. You must:

      1. use the Services in accordance with these Terms solely for the Intended Purpose and not for any unlawful purpose;

      2. not transfer or resell the Services to any third party, act as a service bureau in respect of the Services, or otherwise commercially exploit the Services;

      3. at your own cost, maintain any equipment and connections necessary for you to access or use the Services;

      4. keep your login and password secure and not allow (by action or inaction) any other person to use it; and

      5. immediately notify Xerra if you become aware of any actual or attempted unauthorised access of the Service by sending an email to support@starboard.nz.

    2. When accessing the Services, you must:

      1. not impersonate another person or misrepresent authorisation to act on behalf of others or Xerra;

      2. not attempt to undermine the security or integrity of the Underlying Systems;

      3. not use, or misuse, the Services in any way which may impair the ability of any other user to use the Services;

      4. not attempt to view, access or copy any material or data other than that to which you are authorised to access; and

      5. neither use the Services in a manner, nor transmit, input or store any Data, that breaches any third party right (including Intellectual Property Rights and privacy rights) or is Objectionable, incorrect or misleading.

    3. You must comply with all applicable Third Party Licences, and must not do or omit to do anything which causes or may cause Xerra to be in breach of any Third Party License.

  6. Fees

    1. You must pay to Xerra the Fees and all other amounts, plus GST if it applies. You must select a subscription period and pay the corresponding Fee.

    2. Fees are charged for each Service on the basis of the subscription period selected by you, and are non-refundable, including if you terminate your use of any Services part way through a subscription period.

    3. If you do not pay any amount due, without limiting any right or remedy of Xerra, Xerra may do any or all of the following:

      1. charge Default Interest which becomes immediately due for payment;

      2. temporarily suspend, or terminate, your right to access and/or use the Services; and/or

      3. require you to pay, on demand, all costs and expenses incurred by Xerra in the recovery or attempted recovery of any overdue amount, including any debt collection agency fees, legal fees and administration costs.

  7. Data and privacy

    1. Client Data supplied to Xerra in your use of the Services belongs to you.

    2. You grant to Xerra a worldwide, transferable, sublicensable, royalty-free, licence to your Client Data for the purposes of providing the Services and carrying out Xerra’s business generally, such licence to be limited to the period of your subscription to the Services. On expiry of your subscription to the Services, Xerra will cease to use your Client Data except to the extent any of it persists in Xerra’s Underlying Systems for backup, archive, or other reasonable business purposes, in which case the licence granted by you to Xerra will continue until such reasonable business purposes have ceased. The licence granted in this clause does not limit or modify clause 8.1.

    3. You must arrange all necessary consents and approvals for Xerra to access, store, use, process and disclose your Client Data as contemplated by these Terms.

    4. To the extent you provide Personal Information to Xerra. Xerra’s Privacy Policy, as updated from time to time by Xerra, applies to Xerra’s collection, storage, use, and disclosure of Personal Information.

    5. You acknowledge and agree that, to the extent that Client Data contains Personal Information, in collecting, holding and processing that information through the Services or otherwise under these Terms, Xerra is acting as your agent for the purposes of the Privacy Act and any other applicable privacy law. Xerra will comply with the Privacy Act in respect of Personal Information contained in your Client Data as if it was your agent for those purposes.

    6. You agree to indemnify Xerra against any Loss arising from any actual or threatened claim by a third party that any Client Data infringes the rights of that third party (including Intellectual Property Rights and privacy rights) or that Client Data is Objectionable, incorrect or misleading.

  8. Anonymous and analytical data and feedback

    1. You acknowledge and agree that Xerra may anonymise, use, and publish data (including Client Data) and any other information about use of the Services on an aggregated basis for reporting to third parties or on public mediums.

    2. You acknowledge and agree that Xerra may use data (including Client Data) and information about your use of the Services to generate analytical data, and title to all Intellectual Property Rights in the analytical data will vest in Xerra’s on creation, and not transfer to you.

    3. If you provide Xerra with know how, techniques, ideas, methodologies comments or suggestions relating to the Services (together “Feedback”):

      1. all Intellectual Property Rights in that Feedback, and anything created as a result of or derived from that Feedback (including new material, enhancements, modifications or derivative works), are owned solely by Xerra; and

      2. Xerra may use or disclose the Feedback for any purpose.

  9. Confidentiality

    1. Each party agrees that, unless it has the prior written consent of the other party, it must keep confidential at all times the Confidential Information of the other party. You agree that Xerra may use and disclose your Confidential Information for the purposes of providing the Services.

    2. The obligations of confidentiality in 9.1 do not apply to any disclosure:

      1. for the purpose of enforcing a party’s rights under these Terms;

      2. required by law;

      3. to the extent it involves Confidential Information that is publicly available through no fault of the party making the disclosure;

      4. of Confidential Information that was rightfully received from a third party without restriction as to confidentiality; or

      5. by Xerra, as part of a bona fide sale of its business (assets or shares, whether in whole or in part) to a third party, provided that Xerra enters into a confidentiality agreement with the third party.

  10. Intellectual property

    1. You agree that title to, and all Intellectual Property Rights in, the Services (including the Website), and all information, text, graphics, artwork, photographs, logos, icons, sound recordings, videos and look and feel forming part of the Services (including the Website), and all Underlying Systems, are the property of Xerra (and its licensors). Nothing in these Terms transfers that ownership and you agree to not dispute Xerra’s ownership of such items at any time.

    2. Title to, and all Intellectual Property Rights in, the Client Data (as between you and Xerra) is your property. You grant Xerra a worldwide, non-exclusive, fully paid up, transferable, perpetual, irrevocable licence to use, store, copy, modify, make available and communicate the Client Data for any purpose connected with the exercise of its rights and performance of its obligations under these Terms.

    3. To the extent not owned by Xerra, you grant Xerra a worldwide, non-exclusive, fully paid up, transferable, perpetual, irrevocable licence to use any know how, techniques, ideas, methodologies used or discovered by Xerra in the provision of the Services.

    4. You agree to, at your own cost, do all things (including signing any documents) required by Xerra of you in order to give effect to this clause 10.

  11. Warranties

    1. To the maximum extent permitted by applicable law, Xerra disclaims any representation or warranty that the Services will:

      1. meet your requirements or be suitable or fit for any particular purpose, including that the use of the Website will fulfil or meet any statutory role, responsibility or obligation imposed on you; or

      2. be secure, free of viruses or other harmful code, uninterrupted or error free.

    2. To the maximum extent permitted by applicable law, Xerra’s warranties are limited to those set out in these Terms, and all other conditions, guarantees or warranties whether express or implied by statute or otherwise are expressly excluded.

  12. Liability

    1. To the maximum extent permitted by law:

      1. your access and use of the Services is at your own risk; and

      2. Xerra is not liable or responsible to you or any other person for any loss under or in connection with these Terms or your access and use of (or inability to access or use) the Services.

      This exclusion applies regardless of whether Xerra’s liability or responsibility arises in contract, tort (including negligence), equity, breach of statutory duty, or otherwise.

    2. Xerra is not liable to you for any loss of profit, use, revenue, data (including Client Data), savings, business, and/or goodwill, or indirect, consequential or incidental loss or damage, arising under these terms or in connection with these Terms or your access and use of (or inability to access or use) the Services.

    3. You agree to indemnify Xerra against any Loss arising from any actual or threatened claim by a third party arising out of or in connection with these Terms or your access and use of the (or inability to access or use) Services.

    4. Where Xerra cannot at law exclude its liability, to the maximum extent permitted by law, Xerra’s total liability to you under or in connection with these Terms, or your access and use of (or inability to access or use) the Services, in any 12 month period is limited to the amount of Fees paid to Xerra.

    5. Nothing in these Terms has the effect of contracting out of or excluding or limiting liability that cannot, at law, be excluded or limited.

  13. Cancellation, termination, and suspension

    1. You are entitled to cancel your User Account at any time. If you cancel your User Account before the end of the period for which you have paid Fees, your cancellation will take effect immediately and you will not be entitled to any refund of Fees paid in advance (unless Xerra agrees otherwise in its sole discretion).

    2. Xerra may terminate your User Account on written notice to you at any time without giving any reason. Such termination will be effective (at Xerra’s election):

      1. Immediately, and Xerra will make a pro-rata refund of any Fees you have paid in respect of the period after termination; or

      2. at the end of the then-current period for which you have paid Fees.

    3. Without limiting any other right or remedy available to Xerra, Xerra may immediately suspend your access to, or use of, the Services, or terminate your User Account, where Xerra considers that you have:

      1. undermined, or attempted to undermine, the security or integrity of the Services or any Underlying System;

      2. used, or attempted to use, the Services for improper purposes or in a manner that reduces the operational performance of the Services; or

      3. breached these Terms or any applicable law.

    4. If your User Account is cancelled or terminated, your User Account will be deactivated and all of your rights granted under these Terms will immediately come to an end. Xerra is not liable for any Loss following, or as a result of, cancellation or termination of your User Account.

  14. Notices

    1. If Xerra needs to contact you, it may do so by email or posting a notice on the Website. You agree that this satisfies all legal requirements in relation to written communications.

    2. Notices to Xerra must be sent to support@starboard.nz or to any email address notified by email to you by Xerra.

    3. A notice sent by email is effective on transmission, provided that any communication received or deemed received after 5 pm or on a day which is not a business day is deemed not to have been received until the next business day.

  15. Disputes

    1. Any disputes between the parties will be discussed in the spirit of goodwill. If a party has any dispute in connection with these Terms:

      1. that party will promptly give full written particulars of the dispute to the other;

      2. the parties will promptly meet (including by phone or video conference) and try to resolve the dispute;

      3. if the dispute is not resolved within 10 business days of written particulars being given (or any longer period agreed to by the parties), either party may refer the dispute to mediation; and

      4. a party must not commence other legal proceedings, except an application for urgent interlocutory relief, without using the mediation procedure first, and only if the dispute has not been resolved within 20 business days of the appointment of the mediator.

    2. Nothing in this section 15 precludes either party from taking immediate steps to seek urgent interlocutory or equitable relief before a court of competent jurisdiction.

  16. General

    1. Xerra is not liable to you for any failure to provide the Services or to otherwise perform its obligations under these Terms to the extent the failure is caused by Force Majeure.

    2. You may not assign or transfer any right or obligation under these Terms without Xerra’s prior written consent. Xerra may assign, transfer or novate any or all of its rights and obligations under these terms to any related or successor entity (including any entity that acquires all or any part of Xerra’s business or assets).

    3. No person other than Xerra and you has any right to a benefit under, or to enforce, these Terms, and Xerra has no responsibility or liability to any other person.

    4. For a party to waive a right under these Terms, the waiver must be in writing.

    5. If any part or provision of these Terms is or becomes illegal, unenforceable, or invalid, the part or provision is deemed to be modified to the extent required to remedy the illegality, unenforceability or invalidity. If a modification is not possible, the part or provision must be treated for all purposes as severed from these Terms and the remaining Terms are binding.

    6. These Terms, and any dispute relating to these Terms or the Services, are governed by and must be interpreted in accordance with the laws of New Zealand. Each party submits to the non-exclusive jurisdiction of the Courts of New Zealand in relation to any dispute connected with these Terms or the Services.

    7. These Terms and Xerra’s Privacy Policy sets out everything agreed by the parties relating to your use of the Services and supersedes anything else discussed, exchanged or agreed prior to you agreeing to these Terms. The parties have not relied on any representation, warranty or agreement relating to the Services that is not expressly set out in these Terms, and no such representation, warranty or agreement has any effect from the date you first agreed to these Terms. Without limiting the previous sentence, the parties agree to contract out of sections 9, 12A and 13 of the Fair Trading Act 1986.

  17. Definitions and interpretation

    1. In these Terms, the following terms have the following meanings:

      Client Data means any data inputted into the Services by you or on your behalf.

      Confidential Information means any information that is not public knowledge and that is obtained by one party in the course of, or in connection with, these Terms and the provision of the Services.

      Default Interest means interest calculated on overdue amounts owed by you to Xerra from the due date to the date of payment (both inclusive) at an annual percentage rate equal to Xerra’s primary trading bank’s corporate overdraft reference rate (monthly charging cycle) as at the due date (or if Xerra’s primary trading bank does not at that time quote such a rate, then the rate which in the opinion of the bank is equivalent to that rate in respect of similar overdraft accommodation expressed as a percentage) plus 2% per annum.

      Fees means the fees (plus GST if applicable) payable by you for the use of the Services, as provided to you, and as updated from time to time by Xerra.

      Force Majeure means an event beyond Xerra’s reasonable control, including internet failure, hacking or other illegal third party interference, natural or manmade disaster, government action, sabotage, or failure of electrical supply.

      GST means goods and services tax under the Goods and Services Tax Act 1985.

      Intellectual Property Rights means all industrial and intellectual property rights including copyright and all worldwide rights conferred under statute, common law or equity relating to inventions (including patents), registered and unregistered trademarks and designs, data and databases, confidential information, know-how and all other rights resulting from intellectual activity.

      Intended Purpose means the purpose of each Service as described on the Website or otherwise notified to you in writing by Xerra from time to time.

      Loss means any and all loss including (without limitation) loss of profits, savings, revenue or data, and any other claim, damage, loss, liability and cost, including legal costs on a solicitor and own client basis.

      Objectionable includes being objectionable, defamatory, obscene, harassing, or unlawful in any way.

      Personal Information means information about an identifiable individual.

      Privacy Act means the Privacy Act 1993 until 1 December 2020 at which time it means the Privacy Act 2020.

      Privacy Policy means the Xerra Privacy Policy available on the Website.

      Services means the services and functionality made available by Xerra from time to time and as may be described in further detail on the Website, as updated by Xerra from time to time.

      Third Party Licenses means the following license terms:

      i. https://www.exactearth.com/Data-Licence

      Underlying System means any network, system, software, IT solution, hardware, data or material that underlies or is used by Xerra to provide the Services, including any third-party solution, system network or hardware. To avoid doubt, Underlying Systems exclude any network, system, hardware or internet connection required by you to access or use the Services.

      User Account means a registered login or account used to obtain access to the Services

      Website means the internet site at the domain starboard.nz

      Xerra means Xerra Earth Observation Institute Limited, NZBN: 9429046147660

      you (or your) means (as the context requires) the individual or organisation who accesses the Services.