Assessment Terms & Conditions
1.1 CarbonCrop is a New Zealand based technology company providing carbon management services, including the assessment, registration and on-going management of forest areas in the New Zealand Emissions Trading Scheme (ETS).
1.2 CarbonCrop has agreed to provide you, the Customer, with an initial assessment of your potential eligibility to register forest areas in the ETS (the Initial Assessment) in accordance with these terms and conditions (Terms). By submitting an application to us for an Initial Assessment (the Initial Application), you agree that the Initial Assessment and the services involved in providing you with the Initial Assessment (the Services) will be provided to you on these Terms.
1.3 If you do not agree to these Terms, you are not authorised to access and use the Services and the Initial Assessment and you must immediately stop doing so.
2. Definitions & Interpretation
2.1 Definitions: In these Terms unless the context otherwise requires:
CarbonCrop means CarbonCo Limited trading as CarbonCrop.
Customer means the Customer named in the Initial Application and all references to the Customer include any director, trustee, officer, employee, contractor, lessee, licensee, representative or agent of the Customer.
ETS means the New Zealand Emissions Trading Scheme.
Forest Area means those forested parts of the Land identified in the maps included in the Initial Assessment, subject to clause 4.
Full Services means a full assessment of the Land, including precision mapping to determine the exact Forest Area.
Initial Application means an application by a Customer for an Initial Assessment as described in the Introduction.
Initial Assessment means an initial assessment provided to a Customer as described in the Introduction.
Intellectual Property means any and all intellectual property or industrial rights of any description anywhere in the world, including any patents, trade marks, domain names, registered designs, rights in circuit layouts, copyright (including rights in URLs, computer software, object and source code), rights in the nature of copyright, performance rights, biological or other materials, image rights, database rights, unregistered design rights, rights in and to trade names, business names, product names and logos, inventions, databases, discoveries, specifications, formulae, processes, know how, concepts, ideas, trade secrets, confidential information and the right to have confidential information kept confidential and any analogous or similar right in any jurisdiction (whether any such rights referred to in this definition are registered, unregistered, capable of registration or not and any applications or rights to apply for registration of any of them together with any registered rights resulting from any such applications or rights to apply for registration).
Land means the land identified by the Customer in the Initial Application.
RMA means Resource Management Act 1991.
Services means the services as described in the Introduction.
Terms means these Initial Assessment - terms and conditions.
3. Services and Services Fee
3.1 CarbonCrop will provide the Services to the Customer in accordance with these Terms, and will use reasonable care and skill in providing the Initial Assessment.
3.2 There is no charge or fee for use of the Services and the provision of the Initial Assessment in accordance with these Terms.
4. Conditions of Use
4.1 The Initial Assessment is provided for information and guidance purposes only and is not to be relied upon by the Customer and nor is it intended to replace the need for a full assessment of the Land (which CarbonCrop can provide pursuant to the Full Services).
4.2 The Customer acknowledges that the maps included in the Initial Assessment are indicative only and represent only approximate areas which may be registered in the ETS and precision mapping will need to be undertaken as part of the Full Services to identify the exact boundaries and areas to be registered in the ETS.
4.3 The Initial Assessment has been prepared based on the following assumptions:
a. the Customer has provided true, current and complete information to CarbonCrop;
b. the Forest Area is not subject to any lease, forestry right or other right of possession;
c. all actions since 1 January 2008 in relation to the Forest Area (including, but not limited to, removal of any existing vegetation before planting of a forest species on the Forest Area) have complied with the provisions of the RMA (including any plan under the RMA) or the Forests Act 1949, that were in force at the time the action was taken;
d. if the post-1989 Forest Area is subject to a pest management plan under the Biosecurity Act 1993 (that imposes requirements in respect of any forest species on the Forest Area), then the Customer has either complied with those requirements, or verified that any other person required to comply with those requirements has done so; and
e. the forest species on the Forest Area is not predominantly naturally regenerated tree weeds.
4.4 By providing the Customer with the Initial Assessment, CarbonCrop is not engaged to provide the Full Services, unless separately agreed.
5. Intellectual Property
5.1 All Intellectual Property which is owned by, or proprietary to, CarbonCrop or the Customer as at the date of the Initial Application (Pre-existing IP) will at all times remain owned by that party exclusively. Nothing expressed or implied in these Terms confers on any party any proprietary rights in respect of any of another party’s Pre-existing IP.
5.2 Any new Intellectual Property created in connection with the provision of the Services, the Initial Assessment, or pursuant to these Terms will be owned by CarbonCrop.
5.3 The Customer grants to CarbonCrop a non-exclusive, non-transferable, royalty-free licence to use, copy, modify and adapt all information and materials provided to CarbonCrop to the extent necessary for CarbonCrop to provide the Services and the Initial Assessment and otherwise perform its obligations under these Terms.
5.4 CarbonCrop grants to the Customer a non-exclusive, non-transferable, royalty-free licence to use the Initial Assessment provided to the Customer under these Terms for their own internal use only.
6. Warranties and Liability
6.1 To the maximum extent permitted by law, the Customer accesses and uses the Services and the Initial Assessment at its own risk.
6.2 All warranties and representations (whether express or implied) in relation to the Services, the Initial Assessment or these Terms are excluded to the maximum extent permitted by law, and to the extent that they cannot be excluded, liability for them is limited to NZ$10.
6.3 CarbonCrop will have no liability to the Customer to the extent due to any:
a. act or omission of the Customer in reliance on the Initial Assessment; or
b. breach of these Terms by the Customer; or
c. failure by the Customer to comply with any reasonable requests or directions of CarbonCrop.
6.4 In no event will CarbonCrop be liable to the Customer (whether in contract, tort (including negligence), or otherwise) for any loss, damage, cost or expense of any kind whatsoever under or in connection with these Terms, the Services, the Initial Assessment or the Customers access and use of (or inability to access or use) the Services and the Initial Assessment. This exclusion applies regardless of whether the liability or responsibility arises in contract, tort (including negligence), equity, breach of statutory duty or otherwise.
6.5 The maximum aggregate liability of CarbonCrop to the Customer under or in connection with these Terms, the Services, and the Initial Assessment (whether in contract, tort (including negligence), or otherwise) will not exceed NZ$10.
6.6 The Customer shall indemnify and hold harmless CarbonCrop from and against any and all losses, claims, liabilities, damages, costs, charges and expenses (including legal expenses) which CarbonCrop may suffer or incur in connection with any breach of the Customer’s obligations under these Terms, any reliance of the Customer on the Initial Assessment, or any wilful, unlawful or negligent act or omission of the Customer.
6.7 The parties agree that:
a. nothing in sections 9, 12A, 13 and 14(1) of the Fair Trading Act 1986 apply to these Terms and no proceedings may be brought by any party for an order under section 43 of the Fair Trading Act in relation to a contravention of section 9, 12A, 13 or 14(a) of the Fair Trading Act in relation to these Terms; and
b. this is a commercial agreement and the provisions of the Consumer Guarantees Act 1993 do not apply.
7.1 Further assurance: Each party shall make all applications, execute all documents and do or procure all other acts and things reasonably required to implement and to carry out its obligations under, and the intention of, these Terms.
7.2 Severance: If any provision of these Terms is or becomes unenforceable, illegal or invalid for any reason it shall be deemed to be severed from these Terms without affecting the validity of the remainder of these Terms and shall not affect the enforceability, legality, validity or application of any other provision of these Terms.
7.3 No merger: The provisions of these Terms, and anything done under, or in connection with, these Terms shall not operate as a merger of any of the rights, powers or remedies of any party under, or in connection with, these Terms or at law, and those rights, powers and remedies shall survive and continue in full force and effect to the extent that they are unfulfilled.
7.4 No implied relationships: Nothing in these Terms will be deemed or construed to constitute either party being a partner, agent or representative of the other party or to create any trust or commercial partnership. No party may act for, or incur an obligation on behalf of, the other party except as expressly provided in these Terms.
7.5 Waiver: No failure or forbearance by a party to exercise, or delay in exercising, (in whole or in part) any right, power or remedy under, or in connection with, these Terms shall operate as a waiver of that right, power or remedy. A waiver of any breach of any provision of these Terms shall not be effective unless that waiver is in writing and is signed by the party against whom that waiver is claimed. A waiver of any breach shall not be, or be deemed to be, a waiver of any other or subsequent breach.
7.6 Governing law: These Terms are governed by the laws of New Zealand and the parties submit to the non-exclusive jurisdiction of the courts of New Zealand in respect of any dispute or proceeding arising out of these Terms.