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.
    • Implementation Date: means the date after the installation date that the Hardware has been installed and the Software is effectively capturing and accurately scoring video images of cows as determined by Herd-i.
    • 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 lameness scoring and body condition scoring system for dairy cows, the web dashboard for viewing the lameness scores and all related licensed material known as Herd-i including all models, algorithms and any enhancements to the software, and including any other products that Herd-i may develop in the future and which the Customer has agreed to install.
    • 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 4 together with any renewed term under that clause.
    1. 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 images 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, the Implementation Date.
    • Herd-i will advise the Customer if the Installation Date will be delayed e.g. due to unfavourable conditions for installation and will notify the Customer of the new Installation Date.
    1. Customer’s Obligations
    • The Customer shall ensure that the following requirements are able to be met:
      • a concrete exit race of between 5m and 10m, which is flat and has single file good cow flow;
      • a reliable internet connection (5Mbps and unlimited monthly data cap);
      • an EID reader on the exit race;
      • appropriate placement of in-shed lighting;
      • feedback on the system including recommendations for improving the dashboard and the Lameness or BCS scoring models,
      • full and convenient access to the Customer’s farm at all reasonable times to allow Herd-i to meet its obligations under this Agreement.
    • The Customer acknowledges that with a stable internet connection, the Herd-i Software will not work effectively. It is the sole responsibility of the Customer to ensure continuous provision of high-speed internet sufficient for the continuous operation of the Herd-i scoring system.  In the event that internet connectivity issues occur and cows are unable to be scored, Herd-i will continue to charge the Subscription Fee based on the normal number of daily milkings and the average number of cows scored for the preceding 10 days of undisrupted connectivity.
    • The Customer shall comply with Herd-i’s reasonable instructions in relation to the use of the Hardware and the Software.
    • The Customer shall be obliged to upgrade to new versions of the Herd-i tracking and scoring models, and the Herd-i Dashboard whenever released by Herd-i.
    • The Customer agrees to provide Herd-i, or any of Herd-I’s authorised third party providers, with third party access to herd and individual animal level data held in any other decision support software systems including, but not limited to Protrack, MINDA, SenseHub, Halter). Such access shall be for the express purpose of data analysis or research which will be carried out to determine the benefits of the Herd-i systems for farmers.
    • 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.
    1. Herd-i Obligations
    • Herd-i shall provide the Customer with on-boarding training and ongoing support to ensure the successful implementation and operation of the Software and that the Customers is obtaining the benefits of the Herd-i Software.
    • When required to visit a Customer Farm during the pre-sales and post sales installation, on-boarding and support processes, Herd-i will comply with the Customer’s reasonable health and safety and security requirements in relation to access and will always notify the Customer of intention to access in advance.
    • Herd-i will inform Customers of any intention to make use of any data generated and held by third party systems and repositories, advising of the intended use for the data. Herd-i undertakes to make use of Customer owned data for specified purposes only.
    • Herd-i shall actively solicit Customer feedback for use in the ongoing development of the Hardware and Software to improve the functionality, accuracy, performance and useability of the Herd-i system.
    • Herd-I shall repair or replace on-farm Hardware in the event of a fault or failure which is attributable to a defect in the Hardware but shall not be required to do so in the event of any damage caused by the Customer, their employees, contractors or any other person.
    1. Term
    • Herd-i grants the Customer a non-exclusive, non-transferrable licence to use the Hardware and the Software and the right to the Support Services during the Term.
    • The Term commences on the Date of this Agreement and continues for a period of 36 months (three years).
    • The Term shall automatically renew for a consecutive 12-month period unless the Customer gives Herd-i 30 days’ written notice before expiry of the then current term that it does not wish to renew this Agreement.
    1. 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 Herd-i systems 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 as determined by Herd-i from time to time.
    1. On-Farm Technical Requirements
    • The Customer acknowledges that to in order for the Herd-i Software to be installed and operate effectively, the following minimum on-farm technical requirements must be met.
      • a concrete exit race of between 5m and 10m, which is flat and has single file good cow flow;
      • a reliable internet connection (5Mbps and unlimited monthly data cap);
      • an EID reader on the exit race;
      • appropriate placement of in-shed lighting;
    • The Customer acknowledges that the minimum technical and internet connectivity standards may need to be altered by Herd-i from time to time and that Herd-i may at its absolute discretion revise those required minimum technical standards in whole or in part.
    • The Customer will be responsible for all costs associated with any change to its shed configuration, exit race set up and/or internet data requirements to meet the Herd-i’s minimum technical standards. Herd-i will give the Customer at least 20 days’ Business Days’ notice in writing of any amendments to its minimum technical and internet connectivity requirements.
    1. Support Services
    • During the Term, Herd-i will use reasonable endeavours to respond to any queries within 2 Business Days and remedy any defects reported through the Support Services within 10 Business Days.
    • 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 parts, and make adjustments to ensure that it operates effectively.
    • The Customer shall not permit any unauthorised third party to examine, repair or in any way modify the Hardware or the Software without the prior written consent of Herd-i. The Customer is fully responsible for all Herd-i’s costs of rectifying or replacing the Hardware and/or Software should any such unauthorised action take place.
    1. 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 timeframes for completion of the services.
    • The Customer acknowledges the ability of the Software to accurately assign a Lameness or BCS score depends on the cow moving freely through the exit race, and acceptable environmental conditions, such as lighting and weather.
    • Herd-i intends to deliver the scoring data within 24 hours, 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 rectify the defect.
    • If a fault is found to have been caused by equipment or software other than Herd-i’s Hardware or Software, Herd-i may charge the Customer a fee for correcting or trying to correct the defect (on a time and materials basis at Herd-i’s standard rates). Such a fee will be advised and agreed with the Customer in advance.
    • 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.
    1. Retention of Title
    • Title to the Hardware remains with Herd-i until the Hardware has been paid for in full.
    • In a situation where the Customer does not pay for the Hardware installation, Herd-i shall retain ownership.  
    • The Customer acknowledges that Clause 9.1 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, 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.
    1. Fees
    • The Customer shall pay to Herd-i:
      • the Installation Fee on the date(s) specified in the Customer specific Herd-i Contract of Services for the Customers Farm(s),
      • the Travel Costs incurred by Herd-i for installing the Hardware;
      • the Subscription Fee monthly in arrears;
      • any other fees and charges referred to in this Agreement or the Customer specific Contract of Services.
    • The Subscription Fee shall be charged for every cow that is scored by the Herd-i system following the Implementation Date.
    • In the event that the Herd-i Software is unable to capture and score cow images because of disruption to internet connectivity, subject to Clause 3, Herd-i will continue to charge the Subscription Fee based on the normal number of daily milkings and the average number of cows scored for the preceding 10 days of undisrupted connectivity.
    • All amounts set out in this Agreement are “plus GST if any”.
    • Herd-i will issue to the Customer GST invoices for amounts payable by the Customer for Hardware and Installation.
    • Payments shall be made without set-off, counterclaim or deduction by the Customer on the due date specified on the relevant invoice.
    • Monthly Subscription Fee’s shall be paid by way of a pre-authorised Direct Debit of a Customers bank account. Herd-i will issue the Customer with a statement at the end of the month, advising what the Direct Debit amount will be.
    • The Customer will make payment (either by bank transfer or Direct Debit) on the 20th month following the month of invoice or statement.
    • 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 7 days of the date of an invoice Herd-i may:
      (a) terminate this Agreement; and/or
      (b) suspend the Customer’s access to the Software, and/or
      (c) issue proceedings for recovery of the debt due.
    1. Fee Review
    • Herd-i may, at its sole discretion, increase the Subscription Fee after the first twelve (12) months from the Commencement Date and again annually on the anniversary of the Commencement Date. This Subscription Fee shall not be increased at a rate higher than the percentage that the New Zealand Consumer Price Index (CPI) has increased in the preceding 12 months.
    • Herd-i will advise the Customer of the fee adjustment providing at least 7 Business Day’s notice of the intention to increase the fee.
    • Herd-i may also increase the Subscription Fee to pass on any third-party service providers’ cost increases. Any increase under this clause 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.
    1. 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 or any other loss, cost or expense of any nature whatsoever which might be incurred by the Customer.
    1. 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 lameness 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 for the term of this Agreement and thereafter in perpetuity. 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 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 authorises Herd-i to make use of both raw and transformed videos for any purpose including, but not limited to, development of new Software, data analysis, research, training, promotion and marketing. In making use of either the raw or transformed videos, Herd-i will not disclose the identity of the Customer or the Customers Farm without express written permission.
    • The Customer shall not:
      • disclose or display the Software to any other person; or
      • attempt to sublicense, modify, adapt, or reverse engineer the Software.
    1. Confidential Information and Privacy
    • Each Party shall not 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.
    • The Customer allows Herd-i to collect, store and use personal data of Customer’s owners, shareholders and employees, which may include, but is not limited to names, address, farm address, email addresses, phone numbers, role etc.  Such information is protected in accordance with Herd-i’s Privacy Policy and shall not be shared with any third party without the express written consent of the Customer.
    • 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 (as the party elects). This clause will not prevent a party keeping a copy of any information it is required by law to retain.
    1. Term of this Agreement and Termination
    • This Agreement shall be for an initial term of 36 months commencing on the Date of this Agreement.
    • The date which is the 12 month date from the Date of this Agreement shall be called the Anniversary date.
    • During the period thirty days prior to the Expiry 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 the Customer 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 providing 7 Business Days written notice to the other.
    •  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
      –  the Customer shall pay Herd-i any other loss or cost or expense which Herd-i shall incur as
      a consequence.
    • Termination is without prejudice to the rights of either party arising prior to termination.
    1. 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.
    1. 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.
    • Governing Law: This Agreement and all matters arising from this Agreement will be governed by the laws of New Zealand.