Wilderlab Terms and Conditions

Version 2.4

Updated: 8th August 2024

 

 

1.                  Definitions

1.1. 'Australian Consumer Law' or 'ACL': Schedule 2 to the Competition and Consumer Act 2010 (Commonwealth of Australia).

1.2. 'Australian Purchaser': a Purchaser who is located, ordinarily resident in or otherwise incorporated or formed in Australia or any of Australia's external territories.

1.3. ‘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.

1.4. ‘eDNA Report’: the report produced by or on behalf of Wilderlab for the Purchaser setting out and/or explaining the results of the Services.

1.5. ‘Extract’: extracted DNA from a Sample.

1.6. ‘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.

1.7. ‘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.

1.8. 'NZ Purchaser': a Purchaser who is located, ordinarily resident in or otherwise incorporated or formed in New Zealand.

1.9. ‘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.

1.10. 'Other Purchaser': a Purchaser who is neither a NZ Purchaser nor an Australian Purchaser.

1.11. ‘Price’: the fees payable by the Purchaser for the products and/or services specified in the invoice issued by Wilderlab, including any shipping costs.

1.12. ‘Privacy Policy’: the privacy policy published on Wilderlab’s website from time to time.

1.13. ‘Purchaser eDNA Data’: any analysis, results, meta-data and eDNA Reports, generated by Wilderlab in connection with the Sample provided by the Purchaser.

1.14. ‘Purchaser’: any person, agency, organisation or entity to whom Wilderlab accepts an Order to provide Kits and/or Services, which includes a:

         i.        NZ Purchaser;

        ii.        Other Purchaser; and

       iii.        Australian Purchaser.

1.15. ‘Sample’: material collected by the Purchaser using the Kit for eDNA analysis by Wilderlab.

1.16. ‘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.

1.17. ‘Terms’: these Terms and Conditions (as amended from time to time).

1.18. ‘Wilderlab’: means, in respect of a supply of either or both Kits and Services, to a:

         i.        NZ Purchaser or Other Purchaser - Wilderlab NZ Limited, a New Zealand limited company registered under Company Number 2463299; or

        ii.        Australian Purchaser – Wilderlab Australia Pty Ltd, an Australian private (proprietary) company registered under Australian Company Number 678 984 524.

1.19. ‘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 Services 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 perpetual, irrevocable and royalty-free licence to store, use, analyse, disclose and 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.

5.4. 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 may publish data from the eDNA Report (excluding any personal information) to the Global Biodiversity Information Facility and to the interactive map on Wilderlab websites (e.g. see https://wilderlab.co.nz/explore).

5.5. Wilderlab is subject to obligations to notify relevant government and local authorities if certain species are detected, including but not limited to pests, diseases, organisms, prohibited matter or other biosecurity matter. For example, among other obligations, Wilderlab must:

i. notify the New Zealand Ministry for Primary Industries of suspected detections of notifiable organisms under the Biosecurity Act 1993; and

ii. notify the relevant Australian authorities of the suspected detection of a notifiable pest or disease, organism, prohibited matter or any other regulated biosecurity matter, as declared by and in accordance with applicable Australian laws.

Where such species or other regulated organisms are detected, 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 reasonable 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 owns and will retain ownership of all Wilderlab IPRs; and

ii. the Purchaser will not dispute, challenge, or do anything that adversely affects the Wilderlab IPRs or Wilderlab's ownership of 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, and exercise all of the Intellectual Property Rights in, the Purchaser Materials for the purpose of providing the Services, including for the production of any eDNA Report and disclosure or publication of an eDNA Report in accordance with clauses 5.2 and 5.4;

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, and exercise of Intellectual Property Rights in, the Purchaser Materials in connection with the provision of the Services, the production of any eDNA Report or disclosure or publication of any eDNA Report will not infringe any rights (including Intellectual Property Rights) of any third party.

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 clauses 5.1 and 5.2, 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. The Purchaser agrees that Wilderlab may collect and deal with personal information provided by or on behalf of the Purchaser to Wilderlab in accordance with Wilderlab's Privacy Policy (which can be found at wilderlab.co.nz/privacy).

10.2. The Purchaser acknowledges that, in agreeing to these Terms, it has read and accepts the terms of the Privacy Policy.

10.3 The Purchaser warrants that it has obtained the consent of any person whose personal information is provided by or on behalf of the Purchaser to Wilderlab, to the collection of that information by Wilderlab.

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 and Australian Purchasers

12.1. To the extent permitted by law and subject to clause 12.2, all conditions and warranties that are not expressly set out in these Terms, including any implied conditions and warranties are excluded.  Where any NZ Purchaser or Other 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.

12.2 In respect of Australian Purchasers:

      i.        these Terms (and in particular but not limited to each of the clauses 2 (Services), 3 (Kits), 11 (Liability) and this clause 12) are subject to the Australian Consumer Law (ACL), including the consumer laws of applicable states and territories in Australia and this clause 12.2. In particular, the contractual rights such Australian Purchasers have under these Terms are in addition to other statutory rights Australian Purchasers may have under the Australian Consumer Law and other Australian territory and state consumer protection laws. This clause 12.2 prevails to the extent of any inconsistency with the other Terms;

     ii.        despite clause 12.1 and these Terms more generally, there are certain guarantees or warranties that are implied into these Terms under Australian Consumer Law which cannot be excluded, including as to performance of the Services with due care and skill, guarantees as to fitness of the Services for specific disclosed or implied purposes and guarantees as to the supply of Services within a reasonable time.  The provision of any Kits or other goods under these Terms are also subject to specific statutory guarantees as to, among other things, title, quality and fitness for purpose;

    iii.        despite any provisions of these Terms, Wilderlab's liability for any failure to comply with any such statutory guarantee or warranty referred to in this clause 12.2 is limited to the maximum extent permitted by applicable law to, at Wilderlab's option:

(a)   in respect of any Services - the supply of the Services again or the payment of the cost of having the Services supplied again; and

(b)   in respect of any Kits or other goods supplied - (1) the replacement of the Kits or other goods, as applicable; (2) the supply of equivalent Kits or other goods, as applicable; (3) the repair of the Kits or other goods, as applicable; (4) the payment of the cost of replacing the Kits or other goods or of acquiring equivalent Kits or other goods, as applicable; or (5) the payment of the cost of having the Kits or other goods (as applicable) repaired,

but in the case of either a "major failure" (as defined in the ACL) or a failure that cannot be remedied, in respect of any:

(c)   Services - the Australian Purchaser is entitled to cancel or terminate the Order in respect of those Services and the Australian Purchaser is entitled to a refund for the unused portion of the Services, or to compensation for the reduced value of the Services; and

(d)   Kits or other goods - the Australian Purchaser is entitled to choose between a refund or replacement of the Kits or other goods, as applicable;

    iv.         if a failure with any Services, Kits or other goods supplied under these Terms is not a "major failure", the Australian Purchaser is entitled to have the failure rectified within a reasonable time and if not rectified in a reasonable time, the Australian Purchaser is entitled to a refund in respect of the Kits or other goods or to cancel the Order in respect of the Services and to obtain a refund for any unused portion of the Services; and

     v.         the Australian Purchaser is also entitled to compensation for reasonably foreseeable loss or damage due to a failure in Services, Kits or other goods supplied under these Terms.

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 Kits or Wilderlab is unable to conduct the Services or supply the Kits, 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. In relation to any NZ Purchaser and Other Purchaser, these Terms are governed by the laws of New Zealand and Wilderlab and the NZ Purchaser and Other Purchaser submit to the exclusive jurisdiction of the New Zealand courts and tribunals in respect of all matters relating to these Terms.

14.2. In relation to any Australian Purchaser, these Terms are governed by the laws of the State of Victoria, Australia and Wilderlab and the Australian Purchaser submit to the non-exclusive jurisdiction of the courts and tribunals located in the State of Victoria, Australia in respect of all matters relating to these Terms.

14.3. 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:

i. in respect of disputes between Wilderlab and either or both a NZ Purchaser and Other Purchaser - apply to the Disputes Tribunal to resolve the dispute; and

ii. in respect of disputes between Wilderlab and an Australian Purchaser - apply to have the dispute resolved by mediation administered by the Australian Disputes Centre (ADC) conducted in accordance with the ADC Guidelines for Commercial Mediation operating at the time the dispute is referred to the ADC, and regardless of any dispute, each party will continue to perform its obligations under these Terms.  This clause 14.3 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. Neither Wilderlab nor the Purchaser may assign or novate its rights and obligations under these Terms without the other party's prior written consent, such consent not to be unreasonably withheld or delayed.

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. 2024