NZCER JOURNALS ONLINE - TERMS AND CONDITIONS OF USE

1. SCOPE

These terms and conditions apply to anyone wanting to access the online information provided by NZCER. NZCER will only provide a licence to access its information to people or organisations who agree to be bound by these terms and conditions.

2. INTERPRETATION

2.1 For the purposes of these terms and conditions:

2.1.1 “NZCER” is the New Zealand Council for Educational Research, the owner and provider of the information on www.nzcer.org.nz;

2.1.2 “Licensee” is any individual, sole trader, partnership, company, body corporate, or organisation which has agreed to be bound by these terms and conditions in return for a licence to use products provided by NZCER;

2.1.3 “Product” or “Products” means
(a) the journal content supplied by NZCER as part of its Online Journal service;
(b) the software used by NZCER which enables search and retrieval of information; and
(d) any other services that NZCER may provide.

2.1.4 “User Identification” means the username or password issued by NZCER to a licensee which enables the licensee to access Product or Products on NZCER Online.

3. ACCEPTANCE OF TERMS AND CONDITIONS

The Licensee agrees that submission of an application to subscribe to a NZCER Online Product is acceptance of these terms and conditions.NZCER grants the Licensee a non-exclusive licence to use the Products which it orders and pays for by way of licence fee, subject to these terms and conditions.

4. NON-EXCLUSIVE LICENCE

 NZCER grants the Licensee a non-exclusive licence to use the Products which it orders and pays for by way of licence fee, subject to these terms and conditions.

5. TERM OF LICENCE

5.1 Unless otherwise agreed in writing, and subject to Clause 14, the licence for any Product commences on the date of receipt by the Licensee of a User Identification which allows access to the Product selected by the Licensee and runs for 12 months.

6. LICENCE FEE

6.1 On payment of the licence fee for a Product, together with any applicable royalties and government charges and taxes, and following receipt of a User Identification which allows access to the Product, the Licensee will be licensed to access and use the Product.

6.2 The Licensee acknowledges that any of NZCER Products which it is licensed to access at all times remain the property of NZCER and that its right to use these Products is limited to the rights set out in these terms and conditions.

7. USER IDENTIFICATION

7.1 Upon payment by the Licensee of the licence fee for the Products which it has ordered, NZCER will issue the Licensee with a User Identification which allows access to the relevant Products.

7.2 The Licensee agrees that it is responsible for protection of the User Identification supplied by NZCER and that it will not disclose it to any other party.

7.3  Disclosure of the User Identification by the Licensee to a third party by conscious act or through negligence is a breach of these terms and conditions and may lead to termination of the Licensee's licence pursuant to clause 14.1.5.

8. LICENSEE’S USAGE RIGHTS

8.1 The Licensee is allowed to use the Products for which it has paid a licence fee, for research or private study, or
 the giving of professional advice; provided that:
 (a) it does so in accordance with the Copyright Act 1994; and
 (b) it supervises and controls the use of the Products as far as is practicable to ensure that they are used solely in accordance with these terms and conditions, including ensuring that any of its employees or users who use the Products, or any other person who uses the Products, licensed to it under these terms and conditions, complies with them; and
(iii) it informs NZCER immediately it becomes aware of any breaches of these licence terms and conditions.

8.2 The Licensee may allow simultaneous access to and use of the Products for which it has paid a licence fee at a level agreed with NZCER.

8.3 Subject to compliance with this Clause, the Licensee may reproduce articles and parts of articles contained in the Products in hard copy or electronic formats, including its use in course materials.  
 

9. USE OF NZCER PRODUCTS

9.1 The Licensee may not and may not permit others to:

9.1.1 Copy the whole of any database or software (other than search software supplied with the Product for the specific purpose of facilitating access to the Products in accordance with these terms and conditions);

9.1.2 Lend, lease or rent access to the Products to others;

9.1.3 Supply or distribute access to the Products to third parties, other than in the course of providing services to third parties in the ordinary course of its business;

9.1.4 Create competitive Products with a substantially similar “look and feel”;

9.1.5 Alter the Products;

9.1.6 Use the Products for any purpose which includes the purpose of creating directly or indirectly any databases or parts of databases; or

9.1.7 Convert or modify data, information or software comprising the Products, or prepare derivative works from the Products, other than as a consequence of the ordinary operation of the Products;

9.1.8 Use the Products in an unauthorised on-line distribution system;

9.1.9 Use the Products in any manner that infringes the intellectual property rights or other rights of another party.

10. USE ON NETWORKS

10.1 Unless otherwise agreed in writing, the Licensee can only use or distribute access to a Product through its local area network or wide area network if the maximum number of users it allows to access the Product is no more than the number agreed with NZCER.

10.2 The Licensee may increase the maximum number of users allowed to access a Product through its local area network or wide area network, provided that it first notifies NZCER of the increase (only required where the increase is up to 5% the agreed number of maximum users) and pays the applicable fee for the increased number of users, pro rated for the number of months then left to run under its licence fee.

11. ALTERATIONS/ MODIFICATIONS TO PRODUCTS

11.1 NZCER reserves the right to alter or modify any of its Products from time to time, which may include the addition or withdrawal of features or data.

11.2 Any withdrawal of features will be notified to the licensee

11.3  If the withdrawal of features is agreed to b esignificant between th eparties th elicesnsee has th eright to cancel th eagreement and be credited the unexpired portion of the subscription.  

12. ASSIGNMENT AND SUB-LICENSING

          12.1 The Licensee may not assign or sub-license any of its rights under these terms and conditions unless NZCER first agrees in writing.

13. TRUSTS

13.1 The Licensee acknowledges that NZCER is under no obligation to hold in trust for it the whole or any part of any fees which it pays to NZCER under these terms and conditions.

14. TERMINATION

14.1 NZCER may terminate the Licensee's licence to use the Products if the Licensee:

14.1.1 is made bankrupt; or

14.1.2 enters into a liquidation or any arrangement or composition with its creditors; or

14.1.3 has a receiver appointed with respect to any of its assets; or

14.1.4 becomes insolvent; or

14.1.5 discloses or allows disclosure of its User Identification to another party.

15. DEFAULT

15.1 If the Licensee is in default in any way under these terms and conditions apart from default resulting from the non-payment of money due under them, NZCER may elect to terminate the Licensee's licence to use its Products provided NZCER has given the Licensee written notice of the default and it has not rectified the default within 30 days from the date of the notice.

15.2 If the Licensee fails to pay any money due under these terms and conditions, NZCER may terminate the agreement after having given the Licensee not less than one week's written notice of the default. Alternatively, NZCER may cancel the Licensee's rights to access the Products.

16. DISCLAIMER

16.1 The Licensee acknowledges that NZCER and/or the authors and/or the suppliers of the information contained in Products disclaim any liability for the accuracy or completeness of those Products.

16.2 The Licensee also acknowledges that particular Products may be the subject of additional disclaimers having regard to their content or subject matter. The terms of any additional disclaimers will be set out on/in the Products concerned. In accepting any Products the subject of additional disclaimers, the Licensee agrees to take those Products subject to the additional disclaimers.

16.3 The Licensee acknowledges that the information contained in the Products is provided on the understanding that it neither represents nor is intended to be advice or that NZCER or the authors are engaged in rendering legal or professional advice. While every care has been taken in its preparation, the Licensee should not act specifically on the basis of the material contained in the Products.

17. NZCER LIABILITY

17.1 To the extent permitted by law, NZCER, its agents and the parties detailed in Clause 9 accept no liability for any loss which the Licensee may suffer from the use of the Products or from any services provided under these terms and conditions, whether this loss is the result of NZCER negligence or otherwise.

17.2 The Licensee agrees to compensate NZCER, its agents and the parties detailed in Clause 9 against all claims, actions or proceedings for loss or damages arising from:
(a) any breach by the Licensee of these terms and conditions; or
(b) any reliance by a third party on advice which the Licensee gives derived in whole or in part from information which it has obtained through the use of the Products.

17.3 NZCER is not liable for any failure to perform its obligations under this licence agreement where the failure results from act of God, act of any government or government authority, fire, explosion, accident, power failure, industrial dispute, inability to obtain materials or any other thing beyond the reasonable control of NZCER.

17.4. To the extent permitted by relevant New Zealand law, the liability of:
(a) NZCER; and/or
(b) the providers of any data contained in any Product;
for any loss or damage which the Licensee or any other person may sustain either directly or indirectly arising out of the Products or their use or out of any services provided under these terms and conditions is limited to any one of the following as determined by NZCER:
(i) the replacement of the Products, or the supply of the Products or equivalent Products or services again; or
(ii) the payment of the cost of replacing the Products, or of having the Products or equivalent Products or services supplied again.

17.5 To the full extent permitted by law and other than as specifically set out in this agreement, NZCER excludes all implied and express terms, conditions and warranties, including warranties as to the fitness of the Product for a particular purpose or the ability of the Products to process date dependent information.

18. COMPLETE AGREEMENT

18.1 These terms and conditions, together with the order form, constitute the complete agreement between the Licensee and NZCER with respect to the use by the Licensee of NZCER Products.

18.2 No variation of these terms and conditions shall be binding on NZCER unless it is in writing and signed by a duly authorised officer of NZCER.

18.3 Any inquiries about these terms and conditions should be directed to the Publishing Manager, NZCER Press, PO Box 3237 Wellington, New Zealand, (email david.ellis@nzcer.org.nz, ph +64 4 8021445) or the representative of NZCER who facilitated the Subscriber's order.

19. APPLICABLE LAW

19.1 This licence agreement shall be governed by and construed in accordance with the laws of New Zealand and the courts of New Zealand shall have non-exclusive jurisdiction to determine any disputes arising under the licence agreement..