Wilderlab Terms and Conditions
Version 2.3
Updated: 6th September 2023
1. Definitions
1.1. ‘Directions’: any guidance Wilderlab provides to the Purchaser related to the use of the Kits and Services including through verbal or written guidance from Wilderlab, instructions labels on Kits, and instructions provided on Wilderlab’s website.
1.2. ‘eDNA Report’: the report produced by or on behalf of Wilderlab for the Purchaser setting out and/or explaining the results of the Services.
1.3. ‘Extract’: extracted DNA from a Sample.
1.4. ‘Intellectual Property Rights’: patents, rights to inventions, copyright and related rights, trademarks, designs, business names, domain names, rights in get-up and trade dress, rights in computer software, database rights, rights to use confidential information and trade secrets, and all other intellectual property rights, whether registered or unregistered, and all similar or equivalent rights or forms of protection in any part of the world.
1.5. ‘Kit’: item and/or collection of items provided by Wilderlab to the Purchaser for the purpose of collecting organisms and/or sampling organic or environmental material for eDNA analysis.
1.6. ‘Order’: the Purchaser’s request for Kits or Services submitted to Wilderlab either verbally or in writing, including through a web form, email or text message.
1.7. ‘Price’: the fees payable by the Purchaser for the products and/or services specified in the invoice issued by Wilderlab, including any shipping costs.
1.8. ‘Privacy Policy’: the privacy policy published on Wilderlab’s website from time to time.
1.9. ‘Purchaser eDNA Data’: any analysis, results, meta-data and eDNA Reports, generated by Wilderlab in connection with the Sample provided by the Purchaser.
1.10. ‘Purchaser’: any person, agency, organisation or entity to whom Wilderlab accepts an Order to provide Kits and/or Services.
1.11. ‘Sample’: material collected by the Purchaser using the Kit for eDNA analysis by Wilderlab.
1.12. ‘Services’: the conducting of laboratory and/or computational analyses of the Samples by Wilderlab for a Purchaser, and all storage and other services provided by Wilderlab as contemplated by these Terms.
1.13. ‘Terms’: these Terms and Conditions (as amended from time to time).
1.14. ‘Wilderlab’: Wilderlab NZ Limited, a New Zealand limited company registered under Company Number 2463299.
1.15. ‘Wilderlab IPRs’: all Intellectual Property Rights subsisting in the Kits and Directions, and all Intellectual Property Rights created or developed by or on behalf of Wilderlab in connection with the performance and provision of Services by Wilderlab, excluding the Intellectual Property Rights in the Purchaser eDNA Data.
2. Services
2.1. A contract in accordance with these Terms is formed between the Purchaser and Wilderlab when Wilderlab accepts an Order from the Purchaser, either verbally or in writing.
2.2. Wilderlab will use reasonable care and skill when providing Services (consistent with good scientific practice).
2.3. Wilderlab analyses the Samples as received and makes no representation, undertaking or warranty that the results of the Service will be fit for any specific purpose.
2.4. Wilderlab accepts no responsibility or liability for any use that a Purchaser or third party makes of any results, information, method or process based on the Services.
2.5. If Wilderlab does not conduct the Services with reasonable care and skill, the Purchaser may request that Wilderlab repeat or rectify problems with the Services. If Wilderlab is unable to rectify the problems with the Services, Wilderlab may provide a partial refund of an amount of money that is reasonable considering the nature of the problem with the Services.
2.6. Wilderlab will carry out the Services within a reasonable period. Where the parties agree a timeframe for provision of the Services, Wilderlab will use all reasonable endeavours to ensure the Services are completed within the agreed timeframe (although any agreed timeframe is an estimate only). If the conduct of the Services will be delayed, Wilderlab will contact the Purchaser to notify the Purchaser and work to minimise the impact of the delay. Wilderlab will not be liable for such a delay. If there is a risk of a substantial delay, the Purchaser may terminate the Order and receive a refund for any Services that it has paid for but not received.
3. Kits
3.1. The Purchaser agrees to use each Kit once, and only use the items and components provided by Wilderlab when using Kits to collect, store and transport the Samples.
3.2. The Purchaser acknowledges that the components and Directions for the Kits are proprietary to Wilderlab.
3.3. Any Kits should be used within two years of receipt by the Purchaser. Wilderlab cannot guarantee processing of Kits used beyond this period.
4. Ownership and use of Samples and Extracts
4.1. Samples taken by the Purchaser using the Kits are the property of the Purchaser, and will be stored at Wilderlab for a period of three months after Sample receipt, after which they will be disposed of. A request for return of original Samples should be made prior to providing the Samples to Wilderlab.
4.2. Any Extracts purified in Wilderlab’s laboratories remain the property of the Purchaser. Wilderlab will store Extracts at -20 °C for at least 12 months from the date of Sample receipt, in case the Purchaser wishes to order additional testing services.
4.3 Additional storage services of Samples and Extracts can be arranged on request. A storage fee may be applicable.
4.4. Wilderlab will not send Samples outside of New Zealand unless it has the Purchaser’s written consent.
5. Data generated from the Samples and Extracts
5.1. All Purchaser eDNA Data is owned by the Purchaser. Wilderlab will retain a copy of all Purchaser eDNA Data for at least 7 years or longer if required for any legal, regulatory, compliance, audit or accreditation purposes.
5.2. Where the Services include an eDNA Report, Wilderlab will provide the Purchaser with a copy of the eDNA Report generated from the Sample.
5.3. The Purchaser grants Wilderlab a royalty-free licence to store, use, analyse and disclose or otherwise deal with any Purchaser eDNA Data arising from the Sample and metadata provided with the Sample, and use the Samples and the Extracts, for the following purposes:
i. the provision of the Services;
ii. the improvement of the Services; and
iii. where required for any legal, regulatory, compliance, audit or accreditation purposes.
Wilderlab will not use any Purchaser eDNA Data, Samples or Extracts for any other purposes without permission of the Purchaser.
5.2. The Purchaser may agree to release a copy of the eDNA Report under the Creative Commons CC BY-NC 4.0 licence when placing the Order or in writing at a later date. In this case, Wilderlab will publish a copy of the eDNA Report on the interactive web application at wilderlab.co.nz/explore.
5.3. Wilderlab is subject to obligations to notify relevant government and local authorities if certain species are detected, such as to notify the New Zealand Ministry for Primary Industries of suspected detections of notifiable organisms under the Biosecurity Act 1993. Where this is the case, Wilderlab may be required to provide the relevant authority with metadata such as information on where the Sample was taken, Extracts and any genetic results arising from the Sample, but Wilderlab will not disclose any Purchaser details or other personal information, unless agreed to by the Purchaser or required by law. Wilderlab will notify the Purchaser where it will be required to notify authorities of results detected prior to making a notification where reasonably practicable. In any event, Wilderlab will provide a copy of such notification to the Purchaser.
6. Purchaser’s obligations
6.1. The Purchaser is responsible for following the Directions and appropriate procedures when using the Kits to collect, store and transport the Samples of organic and/or environmental material.
6.2. The Purchaser is responsible for ensuring the Purchaser has all necessary authorisations and permissions to access the sampling site(s) and to collect the Samples of organic and/or environmental material.
6.3. If the Purchaser has contracted for Wilderlab’s Services, then, after taking the Sample, the Purchaser must arrange to transport the Kit to Wilderlab such that the Kit arrives within the timeframe agreed between the Purchaser and Wilderlab verbally or in writing, or, if no timeframe was agreed, within a reasonable period. If the Kit arrives later than agreed, Wilderlab may apply additional charges. Wilderlab will not be responsible for any delay in transport of the Kit or Sample to Wilderlab, or for any damage or loss to the Kit or Sample whilst being transported to Wilderlab.
6.4. The Purchaser agrees to provide Wilderlab with current, complete and accurate information about the Order as Wilderlab may require or request from time to time. If the Purchaser fails to provide this information, Wilderlab may be unable to provide the Services, and may terminate the Order on this basis.
7. Intellectual Property
7.1. The Purchaser agrees that:
i. Wilderlab will retain ownership of all Wilderlab IPRs; and
ii. the Purchaser will not dispute, challenge, or do anything that adversely affects the Wilderlab IPRs, nor assist any third party to do so.
7.2. To the extent the Purchaser provides any information or materials to Wilderlab in connection with providing the Services and preparing any eDNA Report (Purchaser Materials), the Purchaser:
i. grants Wilderlab a royalty-free licence to use the Purchaser Materials for the purpose of providing the Services, including for any eDNA Report and disclosure or publication of an eDNA Report in accordance with clauses 5.1 and 5.2;
ii. warrants that the Purchaser has authority to grant the licence in clause 7.2.i. above; and
iii. warrants that Wilderlab’s use of the Purchaser Materials in connection with the provision of the Services, any eDNA Report and disclosure or publication of any eDNA Report will not infringe any third party Intellectual Property Rights.
8. Payment
8.1. The Price will be based on either the fees specified on Wilderlab’s website at the time the Order is accepted by Wilderlab or such other fees as agreed between the parties in writing (with such agreed fees taking precedence over the price on Wilderlab’s website). Unless otherwise stated, fees are in New Zealand dollars and exclude GST, which Wilderlab will add to its invoices.
8.2. Following Wilderlab’s confirmation of the Order, Wilderlab will issue an invoice to the Purchaser.
8.3. The Purchaser will pay Wilderlab the full amount indicated on each valid invoice (including GST at the current rate). Payment is due on or before the 20th day of the month following the date of the invoice from Wilderlab.
8.4. If the Purchaser does not pay an invoice by the date that payment is due:
i. Wilderlab may decline to provide Kits or Services to the Purchaser, and, notwithstanding clause 5.1, reserves the right to withhold results of the Services until the Purchaser has paid all amounts relating to the Kits or Services;
ii. Wilderlab may terminate the relevant Order if the Purchaser fails to pay the overdue amount within 14 days of written notice from Wilderlab;
iii. Wilderlab may charge the Purchaser any costs or expenses incurred by Wilderlab to recover amounts payable by the Purchaser; and
iv. without prejudice to any other right or remedy under these Terms or at law, Wilderlab reserves the right to charge default interest on the overdue amount, from the date on which payment of that amount falls overdue until the date that the overdue amount is paid in full. Any default interest will accrue and be calculated on a daily basis (after as well as before judgment) at a rate of 5%, and will be compounded monthly.
9. Cancellation
9.1. The Purchaser may cancel the Order for Kits by notifying Wilderlab in writing within 7 working days after Wilderlab accepts the Order and returning the sealed Kits within 7 working days after providing notice of cancellation. Orders for Kits cannot be cancelled more than 7 working days after Wilderlab has accepted the Order, or if the outer bag of the Kit has been unsealed.
9.2. The Purchaser may cancel the Order for Services by notifying Wilderlab in writing before the Kits that are the subject to the Order for Services have arrived at Wilderlab’s premises.
9.3. The Purchaser cannot cancel an Order for Services once the Kits subject to the Order for Services have arrived at Wilderlab’s premises, unless this is subsequently agreed in writing between the Purchaser and Wilderlab (in which case, the Purchaser will be liable for payment for Wilderlab’s costs, if any, of providing the Services up to the date of cancellation).
10. Privacy
10.1. All personal information (as defined in the Privacy Act 2020) that Wilderlab collects and/or obtains will be handled in accordance with our Privacy Policy (wilderlab.co.nz/privacy).
10.2. The Purchaser acknowledges that, in agreeing to these Terms, it has read and accepts the conditions in the Privacy Policy.
11. Liability
11.1. Nothing in these Terms excludes or limits either party’s liability for fraud or fraudulent misrepresentation.
11.2. Neither party will be liable under the law of contract, equity, tort (including negligence) or otherwise for any loss of profits, revenue, data, business or anticipated business, anticipated savings, interruption to business, goodwill or opportunity or for any indirect or consequential loss or damage, however caused, arising out of or in connection with the Services, including any storage or retention of Samples or other materials, these Terms or any associated activities of the parties.
11.3. Without limiting clause 11.2, to the fullest extent permitted by law, Wilderlab’s maximum liability to the Purchaser in respect of an Order is limited to the value of the Price paid by the Purchaser for the Services and the Kits in respect of the Order.
11.4. This clause 11 continues in full force and effect despite the termination of these Terms.
12. Disclaimer
12.1. To the extent permitted by law, all conditions and warranties that are not expressly set out in these Terms are excluded. Where the Purchaser is receiving the Kits or Services supplied by Wilderlab in trade for the purposes of the Fair Trading Act 1986 (FTA) and Consumer Guarantees Act 1993 (CGA), then:
i. the Purchaser agrees that none of the rights or remedies provided under the CGA will apply;
ii. the Purchaser agrees that sections 9, 12A and 13 of the FTA will not apply; and
iii. the Purchaser agrees that the provisions of this clause 12 are fair and reasonable.
13. Force Majeure
13.1. If the Purchaser’s or Wilderlab’s performance of obligations under these Terms (other than the Purchaser’s obligation to pay for Kits and Services) is prevented or delayed by any event or circumstance beyond the party’s reasonable control, then that party will be excused from performance of that obligation (and will not be liable for any losses, costs or expenses suffered or incurred by the other party in relation to non-performance of that obligation). In these circumstances:
i. that party will notify the other party as soon as practicable in writing;
ii. each party will continue to use all reasonable endeavours to minimise the impact of any delay and perform its obligations under the Terms; and
iii. if there is a risk of substantial delay in Wilderlab’s provision of the Services or Wilderlab is unable to conduct the Services, then the Purchaser may terminate the Order and receive a refund for any Services or Kits that it has paid for but not received.
14. Governing Law and Dispute Resolution
14.1. These Terms are governed by the laws of New Zealand. Wilderlab and the Purchaser submit to the exclusive jurisdiction of the New Zealand courts and tribunals in respect of all matters relating to these Terms.
14.2. Wilderlab and the Purchaser agree to use reasonable endeavours to resolve any disputes that may arise from these Terms. If the parties cannot resolve the dispute within 28 days, the parties may apply to the Disputes Tribunal to resolve the dispute. Regardless of any dispute, each party will continue to perform its obligations under these Terms. This clause does not prevent any party from seeking urgent injunctive or declaratory relief in respect of a dispute or any matter arising under these Terms.
15. General Terms
15.1. These Terms constitute the entire agreement between the parties and supersedes any previous agreements and commitments, whether verbal or in writing, relating to Orders for Kits and Services from Wilderlab.
15.2. Any terms and conditions of the Purchaser shall have no legal effect and shall not constitute part of any agreement between Wilderlab and the Purchaser, unless otherwise agreed in writing with Wilderlab.
15.3. Wilderlab reserves the right at any time to vary these Terms by updating the Terms published on its website and the updated Terms will apply to Orders made after the date that the updated Terms are published on the website.
15.4. If any provision of these Terms is held to be invalid, illegal or unenforceable, such provision will be severed and the remainder of the Terms will remain in full force and effect.
15.5. No waiver of any breach, or failure to enforce any provision, of these Terms at any time by a party will in any way affect, limit or waive that party's right to subsequently require strict compliance with these Terms.
15.6. The Purchaser may not assign its rights and obligations under these Terms without Wilderlab’s prior written consent.
15.7. The termination of these Terms will be without prejudice to any rights that have already accrued to a party under these Terms as at the date of such termination.
© Wilderlab NZ Ltd. 2023