Terms of use
These Terms apply to your use of, and access to, Te Whata as an Iwi Information Manager.
1. Interpretation
1.1 In these Terms:
(a) references to “you, your and the Recipient” are references to the Iwi Information Manager, being the person who accepts these Terms; and
(b) references to “we, us, our and Te Kāhui Raraunga” are references to the trustees of Te Kāhui Raraunga Charitable Trust; and
(c) references to a ‘party’ or ‘parties’ are references to you and / or us (as the context requires).
1.2 Unless the context requires otherwise, other capitalised terms used in these Terms will have the following meanings:
Application means the application completed by you (and includes any supporting documentation required by us to enable us to provide access) to be an Iwi Information Manager;
Confidential Information means any information (in whatever form) which is known by a party to be secret or confidential, or which from the circumstances a person would reasonably conclude is confidential, that is provided by a party to the other party or otherwise obtained by a party in connection with the use of Te Whata;
Data means information or knowledge (including in digital or digitisable form), including that which:
(a) has been collected and is stored and/or available to the public on Te Whata (Te Whata Data); and/or
(b) that is made available on Te Whata by you as an Iwi Information Manager in relation to your Nominated Iwi (Iwi Data);
Force Majeure means the occurrence of an event or circumstances that are beyond the control of the party affected that materially adversely affects the ability of a party to perform an obligation in the Terms;
Intellectual Property Rights means any and all intellectual property rights, whether subsisting now or in the future, including all rights conferred under statute, by common law and in equity in, and in relation to, inventions, designs, trademarks, know-how, trade names, logos, getup, circuit layouts, data, formulae, software, Confidential Information and copyright, and any application or right to apply for registration of any of those rights;
Iwi Information Manager means the person authorised to act as Iwi Information Manager by completing the Application and accepting these Terms;
Nominated Iwi means the iwi identified as the “Nominated Iwi” on the Application;
Objectionable means content that could reasonably be described as being objectionable, defamatory, obscene, harassing, threatening, harmful, contrary to values of te ao Māori or unlawful in any way;
Terms means these terms and includes Schedule 1;
Te Whata means the website at www.tewhata.io and the administrative functions made available to Iwi Information Managers in accordance with these Terms.
2. Te Whata Data
2.1 We do not own, or purport to own, any Data about your Nominated Iwi. The base data displayed on Te Whata is either sourced from publicly available data, government administrative data, data made available by the government, third parties or from the Integrated Data Infrastructure (IDI) according to iwi classification. We continue to work with agencies to make this data available through Te Whata for iwi to visualise and use. We are not therefore, in any way, responsible for that data or purpose to own that data.
3. Iwi Information Manager access to Te Whata
3.1 You must complete the Application and accept these Terms before we can consider your application to be an Iwi Information Manager. We have absolute discretion to decline your Application.
4. Your obligations
4.1 In accessing and/or using Te Whata as an Iwi Information Manager, you must:
(a) warrant that you are authorised by your Nominated Iwi to act as Iwi Information Manager;
(b) only use Te Whata in accordance with these Terms;
(c) only upload content that is consistent with the tikanga and te reo of your Nominated Iwi;
(d) only use Te Whata in relation to the Nominated Iwi and only in accordance with the access rights granted to you as an Iwi Information Manager;
(e) if you receive any written directions from us in relation to your use of Te Whata, immediately comply with such directions;
(f) comply with all applicable laws, rules and regulations, including but not limited to the Privacy Act 2020 and other relevant legislation;
(g) ensure that you do not violate any third party rights (including Intellectual Property or privacy rights) when accessing, using and/or uploading content on to Te Whata; and
(h) at all times, act in accordance with the kawa and tikanga provided at Schedule 1.
4.2 You must not, in the course of your use of Te Whata:
(a) resell or make available your Iwi Information Manager login to any other person, or do or omit to do any other thing that could reasonably constitute commercial exploitation of Te Whata;
(b) not impersonate another person or misrepresent authorisation to act on behalf of the Nominated Iwi or others;
(c) do or omit to do anything that could have the effect of undermining the security or integrity of Te Whata;
(d) use, or misuse, Te Whata in any way which may impair its functionality or impair the ability of any other user of Te Whata;
(e) attempt to view, access or copy any material or Data on Te Whata other than:
(i) that which you are authorised to access and use; and
(ii) to the extent necessary to use Te Whata in accordance with these Terms.
(f) use Te Whata in a manner, or transmit, input, upload or store any material, information to / on Te Whata that:
(i) breaches any third party rights (including Intellectual Property Rights and privacy rights);
(ii) is Objectionable; or
(iii) is incorrect or misleading.
4.3 We may vary, modify and/or remove, at any time, any content that fails to comply with the obligations in these Terms.
4.4 Any breach of these Terms by anyone to whom you allow to use your Iwi Information Manager login will be deemed to be a breach by you. If your Nominated Iwi requires more than one Iwi Information Manager, a separate application must be submitted for each person.
4.5 You are responsible for procuring all licences, authorisations and consents required for any information you put on Te Whata.
5. Access to Te Whata
5.1 Nothing in these Terms or otherwise will prevent us from providing access to other Iwi Information Managers.
5.2 We are not responsible for resolving any disputes within an iwi as to the appropriate Iwi Information Manager. We reserve the right to not authorise any Iwi Information Manager for a Nominated Iwi if there is a dispute as to which person is authorised to act as Iwi Information Manager. The matter is required to be resolved by the Nominated Iwi and not us.
5.3 We will use reasonable efforts to ensure that you are able to access Te Whata as an Iwi Information Manager. However, it is possible that on occasion Te Whata may be unavailable to permit maintenance or other development activity to take place, or in the event of Force Majeure. We do not make any warranty or representation in relation to the availability of Te Whata. We may cease to make available any feature and/or content on Te Whata at our sole discretion.
6. Iwi Data
6.1 You acknowledge and agree that:
(a) we require access to Iwi Data for the purposes of the operation and maintenance of Te Whata; and
(b) we are authorised to access and use Iwi Data for the purposes of Te Whata and in accordance with these Terms.
6.2 You acknowledge and agree that:
(a) we may:
(i) use Data and information about your use of Te Whata to generate anonymised and aggregated statistical and analytical data (Analytical Data); and
(ii) use Analytical Data for our internal research and development purposes and to conduct statistical analysis and identify trends and insights with respect to the use of Te Whata;
(b) our rights under clause 6.2(a) above will survive termination of the Terms; and
(c) title to, and all Intellectual Property Rights in, Analytical Data is and remains our property.
6.3 You acknowledge and agree that, to the extent that Iwi Data contains personal information, in collecting, holding and processing that information through Te Whata, we are acting as your agent for the purposes of the Privacy Act 2020 and any other applicable privacy law. You must obtain all necessary consents from the relevant individual/s to enable us to collect use, hold and process that information in accordance with these Terms.
6.4 You agree that we may store Data (including any personal information) in secure servers and may access that Data (including any personal information) in New Zealand from time to time.[KT1] We are not responsible for any Data that we do not control which may be stored offshore.
6.5 You indemnify us against any liability, claim, proceeding, cost, expense (including actual legal fees) and loss of any kind arising from any actual or alleged claim by a third party that use of any Data you display on Te Whata infringes the rights of a third party (including Intellectual Property Rights and privacy rights) or that the Data is Objectionable, incorrect or misleading.
6.6 For the avoidance of doubt:
(a) these Terms do not licence or transfer any rights of ownership or interests in Te Whata to you or the Nominated Iwi; and
(b) we acknowledge that iwi are the owner of Iwi Data.
7. Fees
7.1 We do not currently charge any fees to access Te Whata as an Iwi Information Manager. We however, reserve the right to charge fees in the future and will notify Iwi Information Managers if we consider that it is necessary to charge fees to enable the continued operation of Te Whata.
8. Intellectual Property
8.1 Subject to clause 8.2, title to, and all Intellectual Property Rights in, Te Whata and any of the software or systems related to Te Whata is and remains ours (and / or our licensor’s or grantor’s) property. You must not contest or dispute that ownership, or the validity of those Intellectual Property Rights.
8.2 Title to, and all Intellectual Property Rights in, Iwi Data remains Iwi property. You confirm that you are authorised to grant us a worldwide, non-exclusive, irrevocable licence to use, store, copy, make available and communicate Iwi Data on Te Whata in accordance with these Terms.
8.3 To the extent that it is not owned by you, you grant us a royalty-free, transferrable, irrevocable and perpetual licence to use for our own business purposes Intellectual Property Rights and any know-how, techniques, ideas, methodologies that we need to use in order to provide you with access to and use of Te Whata, and will you will ensure that you are able to provide this licence by obtaining any third party consents or approvals that are necessary.
8.4 Where you provide us with ideas, comments or suggestions relating to Te Whata (together being referred to as Feedback):
(a) all Intellectual Property Rights in that Feedback and anything created as a result of that Feedback (including new material, enhancements, modifications or derivative works), are owned solely by us; and
(b) we may use or disclose the Feedback for any purpose.
8.5 You acknowledge that Te Whata may link to third party websites that are connected or relevant to Te Whata. Any link from Te Whata does not imply that we endorse, approve or have any responsibility for, those websites or their content or operators. To the maximum extent permitted by law, we exclude all responsibility or liability for those websites.
9. Confidentiality
9.1 Subject to clauses 9.2 and 9.3, each party will treat as confidential and not disclose to any third party nor use for its own benefit (other than for the purposes of use of / access to Te Whata), any Confidential Information that is the Confidential Information of the other party.
9.2 Clause 8.1 does not preclude a party who receives Confidential Information (the Receiving Party) from disclosing Confidential Information:
(a) if that information was known, or becomes known, to the public through no act or default of the Receiving Party;
(b) that the Receiving Party is required by law to disclose that information, so long as the Recipient provides written notice of the required disclosure promptly upon receipt of notice of the required disclosure (if it is permitted to do so by law);
(c) that was lawfully known to the Receiving Party prior to the date it was received;
(d) that becomes available to the Receiving Party from a source other than the person that originally disclosed that information, provided that the Recipient has no reason to believe such source is itself bound by an obligation of confidence or is otherwise prohibited under law from disclosing such information;
(e) to the extent that such disclosure is authorised in writing by the other party; or
(f) if such disclosure is approved for release with the prior written consent of the party from whom the Confidential Information is first received.
9.3 The parties may disclose Confidential Information to their Personnel and to any professional advisors who need to know the same, however in these circumstances, the parties will ensure that such persons are aware of and comply with the terms of this clause 8.
10. Warranties
10.1 Each party warrants that it has full power and authority to enter into, and perform its obligations under these Terms.
10.2 To the maximum extent permitted by law:
(a) our warranties are limited to those set out in these Terms and all other conditions, guarantees or warranties whether expressed or implied by statute or otherwise (including any warranty under Part 3 of the Contract and Commercial Law Act 2017) are expressly excluded and to the extent that they cannot be excluded; and
(b) we make no warranty or representation in relation to whether Te Whata will:
(i) meet your requirements or be suitable for a particular purpose; or
(ii) be secure, free of viruses or other harmful code, uninterrupted or error free.
10.3 The parties agree that:
(a) to the maximum extent permitted by law, the Consumer Guarantees Act 1993 and any other applicable consumer protection legislation does not apply to these Terms; and
(b) it is fair and reasonable that the parties are bound by this clause 10.3.
10.4 Where legislation or rule of law implies from or imposes on these Terms a condition or warranty that cannot be excluded or modified by contract, the condition or warranty is deemed to be included in these Terms. However, or liability for any breach of that condition or warranty is limited to an amount that is equal to the amount of the Fee that has actually been paid to us by you.
11. Liability
11.1 Our maximum aggregate liability under or in connection with these Terms, whether in contract, tort (including negligence), breach of statutory duty or otherwise will not in any calendar year exceed an amount equal to the Fee (if any) paid by you.
11.2 Neither party is liable to the other under or in connection with these Terms for any:
(a) loss of profit, revenue, savings, business, use, data (including the Data), and / or goodwill; or
(b) consequential, indirect, incidental or special damage or loss of any kind.
12. Changes to Terms
12.1 We may vary, remove or replace these Terms at any time by posting revised terms on Te Whata. By continuing to use Te Whata, you agree to be bound by any revised terms, which terms will replace these Terms.
- Termination and Suspension
13.1 We may immediately terminate these Terms and your right to use Te Whata if you breach these Terms.
13.2 Termination of these Terms does not affect either party’s rights and obligations that accrued before that termination.
13.3 On termination of these Terms, you must pay all Fees (if any) owing prior to that termination.
13.4 No compensation is payable by us to you as a result of termination of these Terms for whatever reason, and you will not be entitled to a refund of any Fees that you have already paid.
14. General
14.1 Neither party is liable to the other for any failure to perform its obligations under these Terms to the extent caused by Force Majeure.
14.2 No person other than you and us has any right to a benefit under, or to enforce, these Terms.
14.3 For us to waive a right under these Terms, that waiver must be in writing and signed by us.
14.4 If we need to contact you, we may do so by email or by posting a notice on the Website. You agree that this satisfies all legal requirements in relation to written communications and notice under these Terms.
14.5 These Terms, and any dispute relating to these Terms are governed by and must be interpreted in accordance with the laws of New Zealand. We agree to resolve any dispute in accordance with tikanga Māori.
14.6 Clauses which, by their nature, are intended to survive termination of these Terms, including clauses 6.6, 8, 9, 12 and this clause 13.
14.7 If any part or provision of these Terms is or becomes illegal, unenforceable, or invalid, that part or provision is deemed to be modified to the extent required to remedy the illegality, unenforceability or invalidity. If modification is not possible, the part or provision must be treated for all purposes as severed from these Terms. The remainder of these Terms will be binding on you.
14.8 The Terms set out everything agreed by the parties relating to the proviso of the Services, and supersede and cancel anything discussed, exchanged or agreed prior to the Commencement Date. The parties have not relied on any representation, warranty or agreement relating to the provision of the Services that is not expressly set out in these Terms, and no such representation, warranty or agreement has any effect from the Commencement Date. Without limiting the previous sentence, the parties agree to contract out of sections 9, 12A and 13 of the Fair Trading Act 1986, and that it is fair and reasonable that the parties are bound by this clause 12.10.
14.9 You may not assign, novate, subcontract or transfer any right or obligation under these Terms without our prior written consent, that consent not to be unreasonably withheld. You remain liable for your obligations under these Terms despite any approved assignment, subcontracting or transfer.