Terms & Conditions

General Terms

1. Definitions

  • In this Agreement (unless the context otherwise requires):
  • Agreement: includes the Specific Terms and the General Terms.
  • Business Day: means any day other than a Saturday, Sunday, or statutory public holiday on which trading banks in New Zealand are open for business. A Business Day is deemed to commence at 9.00 am and terminate at 5.00 pm.
  • Commencement Date: means the date of commencement and where an installation payment (full or deposit payment) has been received by Herd-i.
  • Confidential Information: means business information provided by a Party to the other in connection with this Agreement including all information, data, drawings, specifications, documentation, software listings, source or object codes which Herd-i has or from time to time discloses or gives to the Customer relating to the Software.
  • CPI: means the consumer price index (All Groups) published by Statistics NZ (or any successor government agency), and any revised or substituted index.
  • Installation Date: means the date after the commencement date that the hardware has been installed on the customer farm.
  • Intellectual Property: means all statutory, common law and proprietary intellectual property rights, including patents, layout designs, rights in confidential information, copyright works, designs, inventions, trademarks and other rights as defined by Article 2 of the World Intellectual Property Organisation Convention of July 1967, whether registered or unregistered, as may exist anywhere in the world at any time and applications for such rights.
  • Software: means the non-intrusive camera-based locomotion scoring and body condition scoring system for dairy cows, the web dashboard for viewing the locomotion scores and all related licensed material known as Herd-i Locomotion including all models, algorithms and any enhancements to the software.
  • Support Services: means the telephone number and email address monitored during each Business Day by Herd-i to:
    • answer queries from the Customer in relation to the use of the Software and the Hardware; and
    • receive reports of any defects in the Hardware or Software identified by the Customer.
  • Term: means the initial term set out in clause 2 together with any renewed term under that clause.
    • Other capitalised terms have the meaning set out in the Specific Terms.

2. Supply of Hardware

  • Herd-i will install and configure the Hardware on Customer’s Farm on or before the Installation Date, including:
    • scoping the Customer’s Farm in preparation for installation;
    • providing for video data to be collected for system stability and calibration within 10 Business Days of the Installation Date; and
    • begin producing live scoring data through the Software to the Customer within 20 Business Days of the Installation Date.
  • Herd-i will advise the Customer if the Installation Date will be delayed e.g. due to unfavourable conditions for installation and notify the Customer of the new Installation Date.

3. Customer’s obligations

  • The Customer shall provide:
    • a concrete exit race of at least 10m, mostly flat and preferably single file;
    • a good reliable internet connection (5Mbps and 150 GB monthly data cap);
    • an EID reader on the exit race;
    • access to milking session data e.g. remote access to the Protrack PC, Minda Live or other animal management systems;
    • feedback on the system, discussions for improving the dashboard, lameness model and future models e.g. body condition scoring; and
    • full and convenient access to the Customer’s Farm at all reasonable times to allow Herd-i to meet its obligations under this Agreement. Herd-i will comply with the Customer’s reasonable health and safety and security requirements in relation to that access.
  • The Customer shall comply with Herd-i’s reasonable instructions in relation to the use of the Hardware and the Software.
  • The results, materials or other information produced by Herd-i may only be used by the Customer for its internal business purposes. The Customer indemnifies Herd-i against any claims, actions, or demands by third parties resulting from the Customer’s use, sale, distribution, dissemination or other application of the results materials or other information.

4. Term

  • Herd-i grants the Customer a non-exclusive, non-transferrable licence to use the Software and the right to the Support Services during the Term.
  • The Term commences on the Commencement Date and continues, unless earlier terminated, for a period of 24 months. It shall automatically renew for additional 12-month periods unless the Customer gives Herd-i 60 days’ written notice before expiry of the then current term that it does not wish to renew this Agreement.

5. Software terms of use

  • The Customer shall ensure that all usernames and passwords required to access the Software are kept secure and confidential. The Customer shall ensure that strong passwords are selected. The Customer shall immediately notify Herd-i of any unauthorised use of its password(s) or the Software, or any other breach of security.
  • When accessing and using the Software, the Customer and any third party authorised by Herd-i to use the Software on the Customers behalf shall:
  • not attempt to undermine the security or integrity of Herd-i’s computing systems or networks or, where the system is hosted by a third party, that third party’s computing systems and networks;
  • not use, or misuse, the Software in any way;
  • not attempt to gain unauthorised access to any materials other than those to which the Customer has been given express permission to access;
  • not transmit or input any files that may damage any other person’s computing devices or software, content that may be offensive, or material in violation of any law or third party’s rights;
  • not attempt to modify, copy, adapt, reproduce, disassemble, decompile or reverse engineer any computer programs used to deliver the Software;
  • not download or make copies of the results or videos produced by the Software other than via the documented system features or integrations unless Herd-i has agreed prior in writing to such download or copy; and
  • comply with any end user licence agreement.
  • The Customer shall comply with any other terms of use of the Software set by Herd-i from time to time.

6. Technical Requirements

  • The Customer acknowledges that in order to use the Software, its systems and data must meet the minimum standards determined by Herd-i which are set out on the Herd-i website.
  • The Customer acknowledges that the minimum technical and data standards may need to be altered by Herd-i from time to time and that Herd-i may in its absolute discretion revise those required minimum technical and data standards in whole or in part.
  • The Customer will be responsible for all costs associated with any change to its systems and/or data required to meet the Herd-i’s minimum technical and data standards. Herd-i will give the Customer not less than 20 days’ Business days’ notice in writing of any amendments to its minimum technical and data standards.

7. Support Services

  • During the Term, Herd-i will use reasonable endeavours to respond to any queries and remedy any defects reported through the Support Services within 10 Business Days.
  • If the Customer requires any additional training beyond the initial onboarding package and/or additional support, Herd-i agrees to provide such training and/or additional support, the Customer shall pay for that additional training and/or support at Herd-i’s then current time and materials rates.
  • Herd-i may make visits to the Customer’s Farm to test the functions and facilities of the components of the Hardware, clean it, replace unserviceable parts, and make adjustments to ensure that it operates free of defects.
  • The Customer shall not permit any unauthorised third party to examine, repair or in any way alter the Hardware or the Software without the prior written consent of Herd-i. The Customer is fully responsible for all of Herd-i’s costs of rectifying the Hardware and/or Software should any such unauthorised action take place.

8. Warranties

  • Herd-i warrants that:
    • it will install the Hardware and provide the Software and Support Services with all reasonable care and skill; and
    • it will use its best efforts to meet stated dates for completion of the services, but those dates are estimates only.
  • The Customer acknowledges the ability of the Software to predict a score depends on the cow moving freely through the exit race, and environmental conditions, such as lighting and weather.
  • Herd-i intends to deliver the scoring data in a reasonable timeframe however the parties acknowledge that there may be delays in the scoring data being available. Where Herd-i becomes aware of a delay, it will advise the Customer as soon as reasonably practicable.
  • Herd-i does not warrant uninterrupted or error-free operation of the Software or that Herd-i will correct all Software defects. If the Hardware or Software does not function as warranted, the parties together will use all reasonable endeavours to correct the defect. If a fault is primarily caused by equipment or software other than the Hardware or Software, Herd-i may charge a fee for correcting or trying to correct the defect (on a time and materials basis at Herd-i’s standard rates).
  • To the extent permitted by law, all express or implied warranties or representations of Herd-i and its directors, officers or employees in relation to the Hardware, the Software and the Support Services are excluded. The Customer acknowledges for the purposes of the Consumer Guarantees Act 1993 that the Hardware, Software and Support Services are supplied to it for business purposes and that the provisions of that Act do not apply.

9. Retention of Title

  • The Hardware will be at the Customer’s risk from the time it is installed. Title to the Hardware remains with Herd-i until the Hardware has been paid for in full.
  • The Customer acknowledges that clause 1 creates a security interest (Security Interest) (as that term is defined in the Personal Property Securities Act 1999 (PPSA)) in the Hardware. The Customer will, at Herd-i’s request, promptly execute any documents, provide all necessary information, and do anything else required by Herd-i to ensure that the Security Interest constitutes a Perfected Security Interest (as that term is defined in the PPSA). The Customer waives its rights to receive a copy of any Verification Statement (as that term is defined in the PPSA).

Herd-i may at any time inspect or take possession of the Hardware that has not been paid for in full. The Customer irrevocably authorises Herd-i to enter any property where the Hardware is kept or might be kept for the purposes of exercising Herd-i’s rights under this clause.

10. Fees

  • The Customer shall pay to Herd-i:
    • the Installation Fee on the date(s) specified in this Agreement;
    • the Travel Costs incurred by Herd-i for installing the Hardware;
    • the Subscription Fee monthly in arrears;
    • all other fees and charges referred to in this Agreement.
  • All amounts set out in this Agreement are “plus GST if any”.
  • Herd-i will issue to the Customer monthly GST invoices for amounts payable by the Customer. Payments shall be made without set-off, counterclaim or deduction by the Customer on the due date specified on the relevant invoice.
  • Herd-i may charge interest on overdue payments at 2% per month or part thereof. If payment in full is not made by the Customer within 14 days of the date of an invoice Herd-i may:

(a) terminate this agreement; or

(b) suspend the Customer’s access to the Software.

11. Fee Review

  • The Subscription Fee will be revised by Herd-i on each anniversary of Commencement Date and will increase at a minimum by the same percentage that the CPI has increased since 12 months before. Herd-i will advise the Customer of the fee adjustment.
  • Herd-i may also increase the Subscription Fee to pass on any third-party service providers’ cost increases. Any increase under this clause 2 will be notified in writing and must not exceed the increase applied by the third-party service provider. Herd-i does not warrant the operation, performance or functions of any third-party services that Herd-i integrates into the Software, nor the performance of the integration.

12. Limitation of Liability

  • Herd-i’s total aggregate liability for all claims made by the Customer under or in relation to this Agreement, whether in contract, tort (including negligence) or otherwise shall not exceed the Subscription Fees paid by the Customer in the previous 12 months.
  • Herd-i shall not be liable for any indirect loss, consequential loss, loss of profit, loss of revenue, loss of use, loss of contract or loss of goodwill.

13. Intellectual property rights

  • Each Party shall continue to own all Intellectual Property which is owned by or licensed to that Party as at the Commencement Date or is or is developed or acquired by that Party after the Commencement Date but outside of the performance of this Agreement (Existing IP).
  • The Customer shall own the raw video that is captured through use of the Hardware and the Software. Herd-i requires use of the raw video to provide locomotion scores to the Customer and for research and development purposes (e.g. to train the model). The Customer grants Herd-i a royalty-free, non-exclusive, sub-licensable, transferable, perpetual worldwide licence to use the raw video and the Customer’s Existing IP to provide the Software and Support Services and for research, development and commercial purposes. Herd-i may commercialise intellectual property or products developed using the raw video and Existing IP.
  • Herd-i shall own the transformed video and scores generated by the Software and, except as set out in clause 2, any other new Intellectual Property created in the performance this Agreement (New IP). The Customer shall transfer (and procure that any person within its control transfers) such rights to Herd-i on Herd-i’s request.
  • The Customer shall not:
    • disclose or display the Software to any other person; or
    • attempt to sublicense, modify, adapt, or reverse engineer the Software.

14. Confidential information

  • Each Party shall not to use or disclose any Confidential Information of the other Party without that other party’s written consent. It will not be a breach of this clause for a party to use information to the extent required to perform its obligations under this Agreement or to disclose information to the extent required by law (provided it has given the other reasonable prior notice of the disclosure).
  • This clause does not apply to information which:
    • is or becomes publicly available without breach of the obligations under this clause;
    • a party can prove it independently created; or
    • a party already knew at the time it received the information.
  • The Customer will ensure its employees, agents and subcontractors (and their employees) are bound by obligations of confidentiality which are no less onerous than those contained in this Agreement. The Customer is liable for all breaches of this clause caused by its employees, agents and subcontractors.
  • On termination or expiry of this Agreement, or at a party’s request, all copies of a party’s Confidential Information
  • will be returned to it or destroyed (at the party’s election). This clause will not prevent a party keeping a copy of any information it is required by law to retain.

15. Term of this Agreement and Termination

  • This Agreement shall be for an initial term of twelve months commencing on the date upon which the scores are first available. The expiration date of this period shall be called the Anniversary date.
  • During the period thirty days prior to the Anniversary date of this Agreement the Customer and Herd-i shall have a right to terminate this Agreement by written notice to the other party. If this Agreement is not terminated as specified in this clause then this Agreement shall automatically renew each year for subsequent further periods of one year each with the same right to terminate during the dates specified.
  • If either party does not fulfil any one or more of its obligations under this Agreement and that breach is not remedied 14 days after notice requiring the breach to be remedied; or
  • If the Customer commits an act of bankruptcy, is placed in liquidation, receivership, voluntary administration or statutory management, is insolvent or ceases to carry on a substantial part of its business or makes any composition or arrangement with its creditors or has execution levied upon all or any part of its assets except where the execution is contested in good faith or if within 7 days after it is levied, payment is made in full to the judgement creditor in question of all amounts owing to such judgement creditor.

Then the non defaulting party shall be entitled to terminate the Agreement by written notice to the other.

15.5 On the termination or expiry of this Agreement:

  • the licence granted to use the Software immediately terminates;
  • the Customer shall return any Hardware to Herd-i which it has not paid for in full;
  • Herd-i will cease providing the Support Services; and
  • the Customer shall pay Herd-i the Subscription Fees up to the date of termination.
  • Termination is without prejudice to the rights of either party arising prior to termination.

16. Force Majeure

  • Neither party will be liable for any delay or failure to perform any of its obligations (excluding any payment obligation) that is caused or contributed to by any event beyond its reasonable control (including but not limited to an act of nature, environmental occurrence, fire, discontinuity in power supply, pandemic, epidemic, court order, riot, war, strike or labour disturbance) provided that party:
    • could not have avoided or overcome the event by exercising a standard of reasonable care at a reasonable cost;
    • notifies the other party in writing of the event on becoming aware of it; and
    • uses its best endeavours to mitigate the effects of the event and to perform its obligations not affected by the event.

17. General

  • Inconsistency: If there is a conflict or inconsistency between the Specific Terms and the General Terms, the Specific Terms will prevail to the extent of the inconsistency.
  • No Assignment: The Customer shall not directly or indirectly transfer, assign or otherwise dispose of any right or obligation under this Agreement without Herd-i’s prior written consent. A change in the Customer’s effective ownership or control is deemed to be an assignment for the purpose of this clause.

Partial Invalidity: If any provision of this Agreement is or becomes invalid or unenforceable, that provision will be deemed deleted from this Agreement and such invalidity or unenforceability 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 provisions.

  • No Waiver: No failure or delay by a party in insisting on the strict performance of this agreement or to exercise any right under this Agreement will operate as a waiver of those matters. A waiver will not be effective unless it is in writing. A waiver of any breach will not be a waiver of any other breach.
  • Survival: The confidentiality, intellectual property and limitation of liability obligations in this Agreement, and any other obligations which by their nature are to continue beyond the expiry or termination of this Agreement, survive beyond the expiry or termination of this Agreement.

Counterparts: This Agreement may be executed in counterparts (which may include electronic signatures) which, read together, will constitute one Agreement.