2040 End user agreement

User Agreement

We agree to supply the Goods and Services to you in return for payment of the price for those Goods and Services and according to these Terms and Conditions. Acceptance of delivery of the Goods or receipt of any Services will (notwithstanding any statement to the contrary  by you or your employees or agents) constitute acceptance of these Terms and Conditions. By using our Goods and Services, you declare that you have read, understood and agree to be bound by this Agreement.

  1. Agreement

2040 Limited (“2040”, “we”, “us”) will arrange for The Cacophony Project (“TCP”) to host the video and audio recordings (the “Recordings”) made by the bird and predator monitoring devices sold by us to you (“Goods”, “Bird Monitor”, and “Thermal Camera”) and you will create an account on your portal with TCP (the “Portal”) which is linked to the device you have purchased at the prices for the amount of storage (“Storage Limit”) and length of storage (“Storage Time”) agreed to below (the “Services”). This includes hosting the audio files for the platform for testing sound lures.

  1. Goods

 Ownership of the Goods and title and risk in them will pass to you on delivery with payment due on purchase.

  1. Access

The Recordings made and hosted by TCP can be accessed by you via a web portal or API with a username and password.  You acknowledge that the Portal interface and other software related to the provision of Services may change from time to time at the discretion of TCP.

  1. Storage

The Bird Monitor comes with 32 GB of storage and the Thermal Camera comes with 75 GB of storage (Storage Limit) for 1 year from when the first recording is made (Storage Time). This is sufficient to store 45 recordings/day for a year for the Bird Monitor and approximately a year’s worth of recordings for the Thermal Camera (this will vary depending on the number and length of recordings made). If you choose to record more frequently with the Bird Monitor then you will need to buy more storage or keep the recordings for less than a year. If you hit your Storage Limit then TCP may delete recordings, but may choose to keep the meta information. If after the Storage Time has passed you may purchase more Storage Time or TCP may prevent access and/or delete recordings and/or meta information.

  1. Recording Access Frequency

You agree that individual recordings can be accessed on average twice each year. If they are accessed more often than that then TCP can elect to either prevent further access to the recordings or, with your agreement, charge you additional fees to recover the cost of providing this service.

  1. Price

Please go to our website at www.2040.co.nz for up to date prices.

All prices exclude GST, any other applicable taxes and duties and insurance/freight/delivery/handling charges not expressly included in the price. 

The annual amount will be paid for the year in advance upon providing you with an invoice as set out in this agreement. Any changes to pricing will only apply to future payments. 

Note: The hosting costs include the cost of storing and backing up the data and making it accessible via the Cacophony portal and API. This also includes the costs of running any machine learning algorithms over the stored data to recognise birds and predators. This includes any labour costs for people to set up and maintain the infrastructure.

  1. Invoices

If an amount is due then will send you invoices at the end of that month and you will pay us by the 20th day of the month following any invoice.

  1. Charging

Each Storage Limit is for a fixed amount of time for a device. That time will start from when the first recording is uploaded. If at the end of that time an additional period of storage has not been bought then TCP may delete all the recordings and/or stop access to the recordings. Before doing this we will give you at least 14 calendar days’ notice. 

Subject to the rest of this Agreement, bird count records of five minutes or less will not be charged for the storage. We maintain the right to alter, amend or revoke this clause at any time.

  1. Sound Lures

You can upload sound recordings to be played as sound lures. The total size of the files that are uploaded for sound lures should not exceed 5MB. The files that are uploaded may be used by other customers with the Sound Lure platform. TCP may delete any of these files at its discretion.

  1. Meta Information

The recordings have additional meta information stored with each recording including the date, time and location of the recording. Additional information may be added manually by you via the web interface, or automatically by algorithms analysing the recording. Reports may be made available summarising the meta information.  TCP may keep the meta information permanently even after the Recordings have been deleted.

  1. Ownership

All copyright and other intellectual property rights in the Recordings and any associated documentation shall at all times remain open source and in the public domain.

  1. Use of the Recordings

The Recordings may be accessed or used by any third party.

TCP may copy, or permit the Recordings (in whole or in part) to be copied, without your prior written consent.

  1. Exclusion of Warranties

If you are acquiring the Services for business purposes, then the guarantees under the Consumer Guarantees Act 1993 and sections 9, 12A, 13 and 14(1) of the Fair Trading Act 1986 do not apply.

Unless you have rights under the Consumer Guarantees Act 1993 or other legislation, which cannot be excluded or limited, there are no warranties express or implied. This disclaimer includes implied warranties as to merchantability and fitness for a particular purpose.

  1. Limitation of Liability

Neither of us will be liable to each other for any loss or damage arising from delay or failure to perform obligations due to any matter beyond either of our reasonable control.

Neither you or us or either of our employees and agents shall be liable to the other for any claim for breach of Contract (except as provided in the next paragraph below) or Statute or breach of duty in Tort (including negligence) or for any claim in Equity or otherwise at law.

Our sole remedy against you shall be limited, at our option, to payment of the cost of having the Services supplied again.  Neither of us will, in any case, be liable for any other losses or damages whether general, exemplary, punitive, direct, indirect or consequential, including loss of business profits.

  1. Disclaimer

We do not guarantee that the recordings will not be lost permanently due to a software error or some technical fault. The recordings may also not be able to be accessed for a period of time. TCP may also delete any recordings at its discretion.

  1. Privacy

The recordings made by the devices may be accessed by us, you, TCP and third parties (such as contributors to the open source software of TCP). You may delete recordings and they will no longer be accessible to anyone via the Portal. Deleted recordings may still be contained in back-ups and copies. Recordings may be shared publicly by us or TCP without the need for further approval or consent.

  1. Support

We will be responsible for all communications with you. TCP will provide support for you to the level that it is able and willing.

  1. Term and Termination

This Agreement commences on the date you purchase the Goods and has a term of one year which will renew automatically for one year terms unless one of the parties notifies the other that they do not wish to renew the agreement by giving 90 days prior written notice.

  1. Disputes

If a dispute arises between the parties about interpreting or implementing the provisions of this Agreement, then the parties will use all reasonable endeavours to resolve the dispute by negotiation in good faith. The parties will attend at least one meeting to discuss an attempt to resolve the dispute as a condition precedent to taking other steps concerning the dispute (including but not limited to commencing any legal proceedings other than an application for injunctive relief).

If the dispute cannot be resolved by negotiation within 5 Working Days after the dispute arose, the parties will refer the dispute to mediation by a mediator jointly appointed by them. If the parties cannot agree on a mediator and a process for mediation within 10 Working Days of a request by one to the other to attend mediation, the parties must mediate the dispute in accordance with the Mediation Protocol of the Arbitrators’ and Mediators’ Institute of NZ Inc or its successor, and that organisation will select the mediator and determine the mediator’s compensation.

If the dispute is not resolved within 5 Working Days of its reference to mediation, then the parties will refer the dispute to arbitration by a single arbitrator agreed on by all the parties to the dispute or, failing agreement the appointment of the arbitrator will be made by the President (or equivalent officer) or his or her nominee for the time being of the New Zealand Institute of Arbitrators. Arbitration costs will be apportioned between the parties in a manner determined by the arbitrator.

  1. General Provisions

These terms apply to all transactions where we supply Services to you.  If there is any inconsistency between these terms and any other arrangement with us, these terms prevail unless otherwise agreed by us in writing.

If any provision of these terms and conditions is held by any court to be illegal, void or unenforceable, such determination shall not impair the enforceability of the remaining provisions.

This contract and its terms are governed by, and shall be construed in accordance with, the laws of New Zealand.  Both parties submit to the exclusive jurisdiction of the New Zealand Courts.

We reserve the right to update these terms and condition from time to time by amending them on our website: www.2040.co.nz.