Terms and Conditions of Use

Updated at 2018/12/04

Woodpecker Learning API Terms and Conditions

Please read these Terms

Terms and Conditions

Please read these Terms and Conditions carefully. This Agreement contains the terms and conditions that govern your access to the Woodpecker Learning API and the content delivered to you and your website users through that API and your right to use the software that we provide to enable you and your users to access and use the content from the API (together the Services). All contracts that Woodpecker Learning Limited may enter into from time to time for the provision of these Services shall be governed by these Terms and Conditions. By checking the box indicating that you agree to the terms and conditions of this Agreement, or by accessing or using the Services you agree to be bound by these terms and conditions and the acceptable use policy. In addition, you represent and warrant that you have capacity to enter into this Agreement; and where this Agreement is being entered into by a company or other legal entity, the person accepting this Agreement on behalf of that legal entity has the authority to do so.

1. Definitions

1.1 Except to the extent expressly provided otherwise, in these Terms and Conditions:

"Account" means an account enabling a person to access and make available to the users of their website, the Services;

"Affiliate" means an entity that Controls, is Controlled by, or is under common Control with the relevant entity;

"Agreement" means a contract between the parties incorporating these Terms and Conditions, and any amendments to that contract from time to time;

"Charges" means the following amounts:

(a) the amount paid for an annual subscription to the Services;

(b) such amounts as may be agreed in writing by the parties from time to time; and

(c) amounts calculated by multiplying the Provider's standard API call-based charging rates (as notified by the Provider to the Customer before the date of the Agreement) by the number of calls to the API.

"Control" means the legal power to control (directly or indirectly) the management of an entity (and "Controlled" should be construed accordingly);

"Customer Confidential Information" means:

(a) any information disclosed by or on behalf of the Customer to the Provider during the Term OR at any time before the termination of the Agreement (whether disclosed in writing, orally or otherwise) that at the time of disclosure:

(i) was marked or described as "confidential"; or

(ii) should have been reasonably understood by the Provider to be confidential.

"Customer Data" means all data, works and materials: uploaded to or stored on the Platform by the Customer; transmitted by the Platform at the instigation of the Customer; supplied by the Customer to the Provider for uploading to, transmission by or storage on the Platform; or generated by the Platform as a result of the use of the Services by the Customer (but excluding analytics data relating to the use of the Platform and server log files);

"Data Protection Laws" means all applicable laws relating to the processing of Personal Data including, while it is in force and applicable to Customer Personal Data, the General Data Protection Regulation (Regulation (EU) 2016/679);

"Documentation" means the documentation for the Services produced by the Provider and delivered or made available by the Provider to the Customer;

"Effective Date" means the date upon which the Customer completes the Purchase on the Provider's website, the date upon which the Provider sends to the Customer an order confirmation;

"Force Majeure Event" means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);

"Services" means the Woodpecker Learning API (also referred to as the Woodpecker Click to Translate API) and related content and software, which will be made available for use by the Provider to the Customer as a service via the internet in accordance with these Terms and Conditions;

"Services Defect" means a defect, error or bug in the Platform having a material adverse effect on the appearance, operation, functionality or performance of the Services, but excluding any defect, error or bug caused by or arising as a result of:

(a) any act or omission of the Customer or any person authorised by the Customer to use the Platform or Services;

(b) any use of the Platform or Services contrary to the Documentation, whether by the Customer or by any person authorised by the Customer;

(c) a failure of the Customer to perform or observe any of its obligations in the Agreement; and/or

(d) an incompatibility between the Platform or Services and any other system, network, application, program, hardware or software not specified as compatible in the Services Specification;

"Services Specification" means the specification for the Platform and Services set out in the Documentation;

"Intellectual Property Rights" means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these "intellectual property rights" include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trademarks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);

"Maintenance Services" means the general maintenance of the Platform and  Services, and the application of Updates and Upgrades;

"Minimum Term" means, in respect of the Agreement, the period of 12 months beginning on the Effective Date;

"Mobile App" means the mobile application known as Woodpecker - Language Learning that is made available by the Provider through the Google Play Store and the Apple App Store;

"Personal Data" has the meaning given to it in the Data Protection Laws applicable in New Zealand;

"Platform" means the platform managed by the Provider and used by the Provider to provide the Services, including the application and database software for the Services, the system and server software used to provide the Services, and the computer hardware on which that application, database, system and server software is installed;

"Provider", "we," "us," or "our" means Woodpecker Learning Limited a company incorporated in New Zealand with registration number 6974354 having its registered office at 145 Kitchener Road, Milford, Auckland, 0741, New Zealand. "Customer", "you" or "your" means the party seeking a licence to "Services" means any services that the Provider provides to the Customer, or has an obligation to provide to the Customer, under these Terms and Conditions;

"Set Up Services" means the configuration, implementation and integration of the Services;

"Support Services" means support in relation to the use of, and the identification and resolution of errors in, the Services, but shall not include the provision of training services;

"Supported Web Browser" means the current release from time to time of Microsoft “Edge”, Mozilla “Firefox”, Google “Chrome”, Opera Software “Opera” or Apple “Safari”, or any other web browser that the Provider agrees in writing shall be supported;

"Term" means the term of the Agreement, commencing in accordance with Clause 2.1 and ending in accordance with Clause 2.2;

"Terms and Conditions" means all the documentation containing the provisions of the Agreement, namely the main body of these Terms and Conditions and Schedule 1 (Acceptable Use Policy), including any amendments to that documentation from time to time;

"Update" means a hotfix, patch or minor version update to any Platform software; and

"Upgrade" means a major version upgrade of any Platform software.

2. Term

2.1 The Agreement shall come into force upon the Effective Date.

2.2 The Agreement shall continue in force for the period of the term, subject to termination in accordance with Clause 20.

2.3 Unless the parties expressly agree otherwise in writing, each Purchase shall create a distinct contract under these Terms and Conditions.

3. Set Up Services

3.1 The Provider shall provide set up instructions to the Customer so that they can install the service themselves.

3.2 Subject to any written agreement of the parties to the contrary, any Intellectual Property Rights that may arise out of the performance of the Set Up Services by the Provider shall be the exclusive property of the Provider.

4. Services

4.1 The Platform will automatically generate an Account for the Customer and will provide to the Customer login details for that Account.

4.2 The Provider hereby grants to the Customer a worldwide, non-exclusive licence to use the Services in accordance with the Documentation, these Terms and Conditions and the Acceptable Use Policy during the Term.

4.3 The licence granted by the Provider to the Customer under Clause 4.2 is subject to the following limitations:

(a) the Services may only be used by the Customer and the Customers’ website users for the purposes of glossing vocabulary as described in the acceptable use policy;

(b) the Services will be limited to the number of API calls allowed per minute and per month as listed in the Customer’s account on the console at https://translate.woodpeckerlearning.com.

4.4 Except to the extent expressly permitted in these Terms and Conditions or required by law on a non-excludable basis, the licence granted by the Provider to the Customer under Clause 4.2 is subject to the following prohibitions:

(a) the Customer must not sub-license its right to access and use the Services;

(b) the Customer must not permit any users from unauthorised domains to access or use the Services;

(c) the Customer must not use the Services to sell dictionary services to third parties;

(d) the Customer must not republish or redistribute any content or material from the Services;

(e) the Customer must not make any alteration to the Platform or Services, except as permitted by the Documentation. In particular you must not obscure or disable any words, images, functionality or hyperlinks in the “Click to Translate” button on your website or in the pop-up box that appears after a word or character has been selected by a user of your website; and

(f) the Customer must not conduct or request that any other person conduct any load testing or penetration testing on the Platform or Services without the prior written consent of the Provider.

4.5 The Customer shall use reasonable endeavours, including reasonable security measures relating to Account access details, to ensure that no unauthorised person may gain access to the Services using a Customer Account.

4.6 The Services will provide data to the customer which has associated hyperlinks to web pages which provide attribution for that data. The customer will ensure that those hyperlinks are not obscured in any way and can be selected by their website users when viewing the data relevant to those hyperlinks.

4.7 The Customer must comply with Schedule 1 (Acceptable Use Policy), and must ensure that all persons using the Services with the authority of the Customer or by means of an Account comply with Schedule 1 (Acceptable Use Policy).

4.8 The Customer must not use the Services in any way that causes, or may cause, damage to the Services or Platform or impairment of the availability or accessibility of the Services.

4.9 The Customer must not use the Services:

(a) in any way that is unlawful, illegal, fraudulent or harmful; or

(b) in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.

4.10 For the avoidance of doubt, the Customer has no right to access the software code (including object code, intermediate code and source code) of the Platform, either during or after the Term. The Customer must not copy, reverse-engineer, disassemble, decompile, decrypt, change or modify the services, or in any other way attempt to investigate, tamper with and/or discover the source code and/or the structural framework and/or the principles on which the Services are based except as expressly permitted under mandatory applicable law.

4.11 The Provider may suspend the provision of the Services if any amount due to be paid by the Customer to the Provider under the Agreement is overdue.

5.0 The Customer and the Customer’s website users may electronically save portions of the Provider’s API data for personal use and may print out single copies of portions of the Provider’s API data for personal use. However, they may not systematically make electronic or printed copies of API data for any purpose except as permitted by law or as authorised in writing by the Provider.

6.0 Neither the Customer nor the Customer’s website users may display or redistribute the Provider’s API data on any electronic network or any part of the internet other than on the domain(s) listed in the Customer’s Account .

7.0 The Customer must not cache API data locally. A new request must be made to the Woodpecker Learning API every time the Customer needs API data.

8. Customer Data

8.1 The Customer hereby grants to the Provider a non-exclusive licence to copy, reproduce, store, distribute, publish, export, adapt, edit and translate the Customer Data to the extent reasonably required for the performance of the Provider's obligations and the exercise of the Provider's rights under the Agreement. The Customer also grants to the Provider the right to sub-license these rights to its hosting, connectivity and telecommunications service providers, subject to any express restrictions elsewhere in the Agreement.

8.2 The Customer warrants to the Provider that the Customer Data when used by the Provider in accordance with the Agreement will not infringe the Intellectual Property Rights or other legal rights of any person, and will not breach the provisions of any law, statute or regulation, in any jurisdiction and under any applicable law.

9. Mobile App

9.1 The parties acknowledge and agree that the use of the Mobile App, the parties' respective rights and obligations in relation to the Mobile App and any liabilities of either party arising out of the use of the Mobile App shall be subject to separate terms and conditions, and accordingly these Terms and Conditions shall not govern any such use, rights, obligations or liabilities.

10. No assignment of Intellectual Property Rights

10.1 Nothing in these Terms and Conditions shall operate to assign or transfer any Intellectual Property Rights from the Provider to the Customer, or from the Customer to the Provider.

11. Charges

11.1 The Customer shall pay the Charges to the Provider in accordance with these Terms and Conditions.

11.2 If the Charges are based on a subscription for a certain time period subject to a maximum number of calls then full payment for the complete subscription is required before the service is made available.

11.3 If the Charges are based on per call usage due to the allowed maximum number of calls for a period being exceeded, then the Provider will notify the Customer of the need to make additional payments but not cut off the service unless excess usage in any one month exceeds double the contracted monthly level in the subscription agreement. In this the Provider may choose to suspend the service immediately.

12. Payments

12.1 The Provider shall issue receipts for the Charges to the Customer immediately upon payment.

13. Provider's confidentiality obligations

13.1 The Provider must:

(a) keep the Customer Confidential Information strictly confidential;

(b) not disclose the Customer Confidential Information to any person without the Customer's prior written consent[, and then only under conditions of confidentiality no less onerous than those contained in these Terms and Conditions;

(c) use the same degree of care to protect the confidentiality of the Customer Confidential Information as the Provider uses to protect the Provider's own confidential information of a similar nature, being at least a reasonable degree of care;

(d) act in good faith at all times in relation to the Customer Confidential Information; and

(e) not use any of the Customer Confidential Information for any purpose other than providing the service to the customer and communicating directly to them necessary information about the service.

13.2 Notwithstanding Clause 13.1, the Provider may disclose the Customer Confidential Information to the Provider's officers, employees, professional advisers, insurers, agents and subcontractors who have a need to access the Customer Confidential Information for the performance of their work with respect to the Agreement and who are bound by a written agreement or professional obligation to protect the confidentiality of the Customer Confidential Information.

13.3 This Clause 13 imposes no obligations upon the Provider with respect to Customer Confidential Information that:

(a) is known to the Provider before disclosure under these Terms and Conditions and is not subject to any other obligation of confidentiality;

(b) is or becomes publicly known through no act or default of the Provider; or

(c) is obtained by the Provider from a third party in circumstances where the Provider has no reason to believe that there has been a breach of an obligation of confidentiality.

13.4 The restrictions in this Clause 13 do not apply to the extent that any Customer Confidential Information is required to be disclosed by any law or regulation or by any judicial or governmental order or request.

14. Data protection

14.1 The Provider shall comply with the Data Protection Laws with respect to the processing of the Customer Personal Data.

14.2 The Customer warrants to the Provider that it has the legal right to disclose all Personal Data that it does in fact disclose to the Provider under or in connection with the Agreement. The Provider can use this information to create an account for the Customer and to issue a receipt to the customer. It can also use this information to contact the Customer when necessary to advise of changes to the service or in connection with the Customer’s subscription.

14.3 When users of the Customer’s website, select words on a page, those words and up to the nearest four words either side will be sent to the Provider to see if there is a match in a dictionary maintained by the Provider. The Provider will retain those words and the IP address from where the request came for a reasonable period of time to ensure that its API service is not being abused. This data will not be disclosed to a third party unless required by the Provider to meet its obligations under this Agreement. As this data cannot be used to build a profile that identifies any individual the Provider has no expectation that any of this data is Personal Data under any data protection laws.

15. Warranties

15.1 The Provider warrants to the Customer that:

(a) the Provider has the legal right and authority to enter into the Agreement and to perform its obligations under these Terms and Conditions;

(b) the Provider will comply with all applicable legal and regulatory requirements applying to the exercise of the Provider's rights and the fulfilment of the Provider's obligations under these Terms and Conditions; and

(c) the Provider has or has access to all necessary know-how, expertise and experience to perform its obligations under these Terms and Conditions.

15.2 The Provider warrants to the Customer that:

(a) the Platform and Services will conform in all material respects with the Services Specification;

(b) the Services will be free from Services Defects;

(c) the application of Updates and Upgrades to the Platform by the Provider will not introduce any Services Defects into the Services;

(d) the Platform will be free from viruses, worms, Trojan horses, ransomware, spyware, adware and other malicious software programs; and

(e) the Platform will incorporate security features reflecting the requirements of good industry practice.

15.3 The Provider warrants to the Customer that the Services, when used by the Customer in accordance with these Terms and Conditions, will not breach any laws, statutes or regulations applicable under New Zealand law.

15.4 The Provider warrants to the Customer that the Services, when used by the Customer in accordance with these Terms and Conditions, will not infringe the Intellectual Property Rights of any person in any jurisdiction and under any applicable law.

15.5 If the Provider reasonably determines, or any third party alleges, that the use of the Services by the Customer in accordance with these Terms and Conditions infringes any person's Intellectual Property Rights, the Provider may at its own cost and expense:

(a) modify the Services in such a way that they no longer infringe the relevant Intellectual Property Rights; or

(b) procure for the Customer the right to use the Services in accordance with these Terms and Conditions.

15.6 The Customer warrants to the Provider that it has the legal right and authority to enter into the Agreement and to perform its obligations under these Terms and Conditions.

15.7 All of the parties' warranties and representations in respect of the subject matter of the Agreement are expressly set out in these Terms and Conditions. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of the Agreement will be implied into the Agreement or any related contract.

16. Acknowledgements and warranty limitations

16.1 The Customer acknowledges that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of these Terms and Conditions, the Provider gives no warranty or representation that the Services will be wholly free from defects, errors and bugs.

16.2 The Customer acknowledges that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of these Terms and Conditions, the Provider gives no warranty or representation that the Services will be entirely secure.

16.3 The Customer acknowledges that the Services are designed to be compatible only with that software and those systems specified as compatible in the Services Specification; and the Provider does not warrant or represent that the Services will be compatible with any other software or systems.

16.4 The Customer acknowledges that the Provider will not provide any legal, financial, accounting or taxation advice under these Terms and Conditions or in relation to the Services; and, except to the extent expressly provided otherwise in these Terms and Conditions, the Provider does not warrant or represent that the Services or the use of the Services by the Customer will not give rise to any legal liability on the part of the Customer or any other person.

17. Disclaimer

17.1 The Customer acknowledges that the API contains translations of words and phrases and that many words and phrases can have more than one meaning and not all of them may have been translated. In addition, while our sources are generally trustworthy, openly editable content, while overall of high quality and extremely comprehensive can have mistakes and is at risk from vandalism. The Provider disclaims all warranties related to these translations, express or implied, including any warranties of accuracy, reliability, and any implied warranties of merchantability, fitness for a particular purpose and non-infringement.

18. Limitations and exclusions of liability

18.1 Nothing in these Terms and Conditions will:

(a) limit or exclude any liability for death or personal injury resulting from negligence;

(b) limit or exclude any liability for fraud or fraudulent misrepresentation;

(c) limit any liabilities in any way that is not permitted under applicable law; or

(d) exclude any liabilities that may not be excluded under applicable law.

18.2 The liability of the Provider to the Customer under the Agreement in respect of any event or series of related events shall not exceed the total amount paid and payable by the Customer to the Provider under the Agreement in the 12 month period preceding the commencement of the event or events.

18.2 The aggregate liability of the Provider to the Customer under the Agreement shall not exceed twice the total amount paid and payable by the Customer to the Provider under the Agreement.

19. Force Majeure Event

19.1 If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under the Agreement (other than any obligation to make a payment), that obligation will be suspended for the duration of the Force Majeure Event.

19.2 A party that becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in that party performing any obligation under the Agreement, must:

(a) promptly notify the other; and

(b) inform the other of the period for which it is estimated that such failure or delay will continue.

19.3 A party whose performance of its obligations under the Agreement is affected by a Force Majeure Event must take reasonable steps to mitigate the effects of the Force Majeure Event.

20. Termination

20.1 Either party may terminate the Agreement by giving to the other party not less than 30 days’ written notice of termination.

20.2 Either party may terminate the Agreement immediately by giving written notice of termination to the other party if:

(a) the other party commits any breach of the Agreement, and the breach is not remediable;

(b) the other party commits a breach of the Agreement, and the breach is remediable but the other party fails to remedy the breach within the period of 10 days following the giving of a written notice to the other party requiring the breach to be remedied; or

(c) the other party persistently breaches the Agreement (irrespective of whether such breaches collectively constitute a material breach).

20.3 Either party may terminate the Agreement immediately by giving written notice of termination to the other party if:

(a) the other party:

(i) is dissolved;

(ii) ceases to conduct all (or substantially all) of its business;

(iii) is or becomes unable to pay its debts as they fall due;

(iv) is or becomes insolvent or is declared insolvent; or

(v) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;

(b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;

(c) an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other party under the Agreement); or

(d) if that other party is an individual:

(i) that other party dies;

(ii) as a result of illness or incapacity, that other party becomes incapable of managing his or her own affairs; or

(iii) that other party is the subject of a bankruptcy petition or order.

20.4 The Provider may terminate the Agreement immediately by giving written notice to the Customer if:

(a) any amount due to be paid by the Customer to the Provider under the Agreement is unpaid by the due date and remains unpaid upon the date that that written notice of termination is given; and

(b) the Provider has given to the Customer at least 10 days' written notice, following the failure to pay, of its intention to terminate the Agreement in accordance with this Clause 20.4.

20.5 The rights of termination set out in the Agreement shall not exclude any rights of termination available at law.

21. Effects of termination

21.1 Upon the termination of the Agreement, all of the provisions of these Terms and Conditions shall cease to have effect, save that the following provisions of these Terms and Conditions shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): [Clauses 1, 4.10, 9, 12.2, 12.4, 13, 14.1, 14.3, 17, 18, 21, 24, 25, 26, 27, 28.1, 28.2, 29, 30 and 31].

21.2 Except to the extent that these Terms and Conditions expressly provides otherwise, the termination of the Agreement shall not affect the accrued rights of either party.

21.3 Within 30 days following the termination of the Agreement for any reason:

(a) the Customer must pay to the Provider any Charges in respect of Services provided to the Customer before the termination of the Agreement; and

(b) the Provider must refund to the Customer any Charges paid by the Customer to the Provider in respect of Services that were to be provided to the Customer after the termination of the Agreement,

without prejudice to the parties' other legal rights.

22. Notices

22.1 Any notice from one party to the other party under these Terms and Conditions must be given by one of the following methods (using the relevant contact details set out in the Customer’s account page at https://translate.woodpeckerlearning.com/ and Clause 22.2):

(a) delivered personally or sent by courier or signed-for-post, in which case the notice shall be deemed to be received upon delivery; or

(b) sent by email, in which case the notice shall be deemed to be received 2 Days following transmission unless acknowledged earlier,

22.2 The Provider's contact details for email notices under this Clause 22 are as follows: support@woodpeckerlearning.com.

22.3 The Customer’s contact details for email notices under this Clause 22 are as entered into their account at https://translate.woodpeckerlearning.com.

23. Subcontracting

23.1 Subject to any express restrictions elsewhere in these Terms and Conditions, the Provider may subcontract any of its obligations under the Agreement.

23.2 The Provider shall remain responsible to the Customer for the performance of any subcontracted obligations.

23.3 Notwithstanding the provisions of this Clause 23 but subject to any other provision of these Terms and Conditions, the Customer acknowledges and agrees that the Provider may subcontract to any reputable third party hosting business the hosting of the Platform and the provision of services in relation to the support and maintenance of elements of the Platform.

24. Assignment

24.1 The Customer hereby agrees that the Provider may assign, transfer or otherwise deal with the Provider's contractual rights and obligations under these Terms and Conditions.

24.2 The Customer must not assign, transfer or otherwise deal with the Customer's contractual rights and/or obligations under these Terms and Conditions without the prior written consent of the Provider, such consent not to be unreasonably withheld or delayed, providing that the Customer may assign the entirety of its rights and obligations under these Terms and Conditions to any Affiliate of the Customer or to any successor to all or a substantial part of the business of the Customer from time to time.

25. No waivers

25.1 No breach of any provision of the Agreement will be waived except with the express written consent of the party not in breach.

25.2 No waiver of any breach of any provision of the Agreement shall be construed as a further or continuing waiver of any other breach of that provision or any breach of any other provision of the Agreement.

26. Severability

26.1 If a provision of these Terms and Conditions is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions will continue in effect.

26.2 If any unlawful and/or unenforceable provision of these Terms and Conditions would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect.

27. Third party rights

27.1 The Agreement is for the benefit of the parties, and is not intended to benefit or be enforceable by any third party.

27.2 The exercise of the parties' rights under the Agreement is not subject to the consent of any third party.

28. Variation

28.1 The Agreement may not be varied except in accordance with this Clause 28.

28.2 The Agreement may be varied by means of a written document signed by or on behalf of each party.

28.3 The Provider may vary the Agreement by giving to the Customer 14 days notice of the proposed variation, providing that if the Provider gives to the Customer a notice under this Clause 28.3, the Customer shall have the right to terminate the Agreement by giving written notice of termination to the Provider at any time during the period of 14 days following receipt of the Provider's notice.

29. Entire agreement

29.1 The main body of these Terms and Conditions and the Schedule 1 shall constitute the entire agreement between the parties in relation to the subject matter of the Agreement, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.

29.2 Neither party will have any remedy in respect of any misrepresentation (whether written or oral) made to it upon which it relied in entering into the Agreement.

29.3 The provisions of this Clause 29 are subject to Clause 18.1.

30. Law and jurisdiction

30.1 These Terms and Conditions shall be governed by and construed in accordance with New Zealand law.

30.2 Any disputes relating to the Agreement shall be subject to the non-exclusive jurisdiction of the courts of New Zealand.

31. Interpretation

31.1 In these Terms and Conditions, a reference to a statute or statutory provision includes a reference to:

(a) that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and

(b) any subordinate legislation made under that statute or statutory provision.

31.2 The Clause headings do not affect the interpretation of these Terms and Conditions.

31.3 References in these Terms and Conditions to "calendar months" are to [the 12 named periods (January, February and so on) into which a year is divided].

31.4 In these Terms and Conditions, general words shall not be given a restrictive interpretation by reason of being preceded or followed by words indicating a particular class of acts, matters or things.

Schedule 1 (Acceptable Use Policy)

1. Introduction

1.1 This acceptable use policy (the "Policy") sets out the rules governing:

(a) the use of our services on the website you specified during account set up or any successor website, (the "Services"); and

(b) the transmission, storage and processing of our content by you, or by any person on your behalf, using the Services ("Our Content"). Our content consists of lexical information such as, but not limited to, headwords, translations, definitions, sample sentences and pronunciation information. Note that our content has been published under licence by third parties and may also be subject to additional terms and conditions published on their websites. All data we provide has a hyperlink to the source where you can see the licence under which it was published and any requirements for re-use or redistribution.

(c) the transmission, storage and processing of your content by us, or by any person on our behalf, using the Services ("Customer Content"). Your content consists of words from your website sent to our servers as an API call to request lexical information about those words.

1.2 References in this Policy to "you" are to any customer for the Services and any individual user of the Services (and "your" should be construed accordingly); and references in this Policy to "us" are to Woodpecker Learning Limited (and "we" and "our" should be construed accordingly).

1.3 By using the Services, you agree to the rules set out in this Policy.

1.4 We will ask for your express agreement to the terms of this Policy before you or your website users upload or submit any Customer Content or otherwise use the Services.

1.5 You must be at least 18 years of age to enter into this agreement; and by using the Services on your website, you warrant and represent to us that you are at least 18 years of age.

2. General usage rules

2.1 We don’t want our Service to be used on any website that offers other dictionary services, is an aggregator of dictionary services or primarily serves to offer dictionary services. The reason for this is that we are concerned about the behaviour of the users on websites like that and their impact on our API. If you think your website is in this category, please email us the link to your website and we will confirm the terms on which we are willing to offer you our service.

2.2 Our Service is not designed to be used as a look-up service for words other than those already on your website. You can’t build a box for users to type-in words and get definitions. You also can’t use any automated service to look for definitions. Our plugin and related API service is designed to enable individual users to more efficiently browse content by clicking or touching on words for which they want additional lexical information. If you use our Service or allow others to use our Service in ways other than this, we may suspend or stop providing our Services to you. We will also suspend our Services if we are investigating suspected misconduct.

2.3 You must not use the Services in any way that causes, or may cause, damage to the Services or impairment of the availability or accessibility of the Services.

2.4 You must not use the Services:

(a) in any way that is unlawful, illegal, fraudulent, deceptive or harmful; or

(b) in connection with any unlawful, illegal, fraudulent, deceptive or harmful purpose or activity.

2.3 You must ensure that all content on your website complies with the provisions of this Policy.

3. Unlawful Content

3.1 The content on your website must not be illegal or unlawful, must not infringe any person's legal rights, and must not be capable of giving rise to legal action against any person (in each case in any jurisdiction and under any applicable law).

3.2 To use our Services on your website the content on your website must not:

(a) be libellous or maliciously false;

(b) be obscene or indecent;

(c) infringe any copyright, moral right, database right, trade mark right, design right, right in passing off, or other intellectual property right;

(d) infringe any right of confidence, right of privacy or right under data protection legislation;

(e) constitute negligent advice or contain any negligent statement;

(f) constitute an incitement to commit a crime, instructions for the commission of a crime or the promotion of criminal activity;

(g) be in contempt of any court, or in breach of any court order;

(h) constitute a breach of racial or religious hatred or discrimination legislation;

4. Graphic material

4.1 The content on your website must be appropriate for all persons who have access to or are likely to access your website.

4.2 The content on your website must not depict violence in an explicit, graphic or gratuitous manner.

4.3 The content on your website must not be pornographic or sexually explicit.

5. Factual accuracy

5.1 The content on your website must not be untrue, false, inaccurate or misleading.

5.2 Statements of fact contained on your website and relating to persons (legal or natural) must be true; and statements of opinion on your website and relating to persons (legal or natural) must be reasonable, be honestly held and indicate the basis of the opinion.

6. Negligent advice

6.1 The content on your website must not consist of or contain any legal, financial, investment, taxation, accountancy, medical or other professional advice, and you must not use the Services to provide any legal, financial, investment, taxation, accountancy, medical or other professional advisory services.

6.2 Your website must not consist of or contain any advice, instructions or other information that may be acted upon and could, if acted upon, cause death, illness or personal injury, damage to property, or any other loss or damage.

7. Etiquette

7.1 The content on your website must be appropriate, civil and tasteful, and accord with generally accepted standards of etiquette and behaviour on the internet.

7.2 The content on your website must not be offensive, deceptive, threatening, abusive, harassing, menacing, hateful, discriminatory or inflammatory.

7.3 The content on your website must not be liable to cause annoyance, inconvenience or needless anxiety.

7.4 You must not use the Services to send any hostile communication or any communication intended to insult, including such communications directed at a particular person or group of people.

7.5 You must not use the Services for the purpose of deliberately upsetting or offending others.

7.6 You must at all times be courteous and polite to other users of the Services and our staff.

8. Marketing and spam

8.1 You must not use the Services on a website that promotes, hosts or operates any chain letters, Ponzi schemes, pyramid schemes, matrix programs, multi-level marketing schemes, "get rich quick" schemes or similar letters, schemes or programs.

8.2 You must not use the Services in any way which is liable to result in the blacklisting of any of our IP addresses.

9. Regulated businesses

9.1 You must not use the Services for any purpose relating to gambling, gaming, betting, lotteries, sweepstakes, prize competitions or any gambling-related activity.

9.2 You must not use the Services for any purpose relating to the offering for sale, sale or distribution of drugs or pharmaceuticals.

10. Monitoring

10.1 You acknowledge that we may actively monitor the Content and the use of the Services.

11. Data mining

11.1 You must not conduct any systematic or automated data scraping, data mining, data extraction or data harvesting, or other systematic or automated data collection activity, by means of or in relation to the Services.

12. Harmful software

12.1 Your website content must not contain or consist of, and you must not promote, distribute or execute by means of the Services, any viruses, worms, spyware, adware or other harmful or malicious software, programs, routines, applications or technologies.

12.2 Your website content must not contain or consist of, and you must not promote, distribute or execute by means of the Services, any software, programs, routines, applications or technologies that will or may have a material negative effect upon the performance of a computer or introduce material security risks to a computer.