Venture Forestry Limited
Terms of Trade
BACKGROUND
A. These Terms of Trade (“Terms”) explain our obligations as a service provider and your obligations as a Client, in relation to any work or services performed for you by Venture Forestry.
B. These Terms are binding and apply to you from the earlier of the date you engage Venture Forestry or work is commenced for you.
C. By engaging Venture Forestry, you acknowledge and represent that you have read and understood these Terms and have the authority to act on behalf of any person for whom you are having services performed. If you use Venture Forestry to provide services to any entity, you are deemed to have agreed to these Terms on behalf of that entity.
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions: Unless the context requires otherwise, capitalised words shall have these meanings:
"Agreement" means any agreement between you and us and comprises these Terms and specifically means any request to perform work or services, any email or verbal exchange, any Letter of Commission or Emissions Trading Scheme Management and Services Agreement.
“Authorised Person” has the meaning given to that term in section 3.
“Breach Event” means:
(a) a breach of the Agreement that is not remedied within 7 days after receiving notice identifying the breach and requiring it to be remedied, where that breach is remediable;
(b) a breach of the Agreement that is not capable of remedy;
(c) you fail to provide us in with any relevant information in the timeframe advised by us to enable us to perform our work or services for you;
(d) a party is, becomes, or is deemed to be, insolvent or bankrupt;
(e) a party makes an assignment for the benefit of, or enters into or makes any arrangement or composition with, its creditors;
(f) a party goes into receivership or has a receiver, trustee and manager (or either of them) (including a statutory manager) appointed in respect of all or any of its property; or
(g) any resolution is passed, or any proceeding is commenced, for the winding up or liquidation of a party (other than for the purposes of a solvent reconstruction).
“Business Day” means any day (other than a Saturday or Sunday) on which banks are open for general over-the-counter banking business in Dunedin.
"Client" means, in the case of an individual entering into the Agreement on their own behalf, that individual, or in the case of an individual entering into these terms on behalf of an Entity, that Entity.
"Client Data" means any data, content, and information (including personal information) provided by you to Venture Forestry.
"Confidential Information" means all information of a confidential nature directly or indirectly made available or exchanged between the parties to the Agreement, whether in paper form, electronically or orally, including through use of the Service. Confidential Information includes any personal information provided or received, the terms of the Agreement, a party’s business information, employee, contractor and Client affairs and, in the case of the Client, all Client Data.
“CPI” means the relevant consumer price index (or similar index), as reasonably determined by Venture Forestry.
"Emissions Trading Scheme Management and Services Agreement" means any agreement between you and us to provide Emissions Trading Scheme Management and Services for you.
“Entity” means any company or corporation, trust, limited partnership, partnership or firm, agency of any government or authority, public, territorial or regional authority, or other incorporated or unincorporated body of persons.
“Intellectual Property Right” means any current and future intellectual property rights, whether registered or unregistered, including copyright, design rights, trademarks, service marks, trade names, domain names, rights in logos and get-up, patents, inventions, confidential information and know-how, all rights in computer software, design, privacy, and databases.
“Fee” means any amount payable by the Client under the Agreement.
"Venture Forestry", “we”, “us”, or “our” means Venture Forestry Limited.
“Related Entity” means any company, corporation, or other entity that controls, is controlled by, or is under common control with, a party.
"Service" means any work done for you by us and includes any services in relation to Silviculture, Harvesting, Plotting, Field Measurement, Valuations or Emissions Trading Scheme Management and Services.
“Fees” means any fee payable by you to us.
"You" and “your” means the Client.
1.2 Interpretation: Unless the context requires otherwise, in the Agreement:
(a) the headings in the Agreement are for convenience only and have no legal effect;
(b) the singular includes the plural and vice versa;
(c) “including” and similar words do not imply any limit; and
(d) words denoting any gender include all genders;
(e) monetary references refer to the currency that is listed in the Client’s Emissions Trading Scheme Management and Services Agreement.
1.3 Precedence: If there is any conflict between the terms of an Agreement, the following order of precedence will apply:
(a) any variation to the Agreement agreed in writing;
(b) these Terms; and
(c) the terms of the Agreement.
2. REQUEST FOR SERVICE
2.1 Process for Client registration: To request any Service the Client must provide Venture Forestry with:
(a) a duly executed copy of an Agreement in the then-current form approved by Venture Forestry;
(b) the Client’s email address;
(c) the Client’s billing details;
(d) other information requested by Venture Forestry, which may include the Client’s legal name, e-mail address, physical address and phone number.
2.2 Confirmation of Client registration: Following Venture Forestry’s receipt and approval of all required information, Venture Forestry will return a duly executed copy of an Agreement to the Client and confirm commencement of the Service.
3. AUTHORISED PERSON
3.1 Authorised: Where a person is contracting for the Service on behalf of the Client (“Authorised Person”), the Authorised Person warrants, undertakes, and represents that:
(a) it has the authority from the Client to agree to the Agreement on behalf of the Client and to access information and give instructions on the Client’s behalf in relation to the Agreement;
(b) by contracting for the Service on behalf of the Client, the Authorised Person binds the Client to the performance of any and all obligations (including payment obligations) of the Client under the Agreement, without limiting the Authorised Person’s personal obligations under the Agreement; and
(c) we may rely upon and act in accordance with any instructions received from the Authorised Person, as if they had been made by the Client and without checking the authority of the Authorised Person.
3.2 No liability: Venture Forestry is not liable in respect of any act or omission of Venture Forestry in reliance on any notice or instructions given by an Authorised Person.
4. PROVISION OF SERVICES
4.1 Compliance: You confirm that you have complied with all laws applicable to you relating to any Service provided for you or carried out on your behalf by us.
4.2 Changes and availability: The Services may be changed or updated from time to time by Venture Forestry.
5. YOUR OBLIGATIONS
5.1 Client obligations:
(a) The Client may use the Service for the Client’s internal business purposes in relation to the Client’s business only.
(b) The Client must not use, nor allow any person to use, the Service in relation to, or for the purposes of, any other business other than the business of a Related Entity.
(c) Venture Forestry will not be a party to any dispute between a Client and any other person for any reason.
6. FEES AND PAYMENT
6.1 Fees: You must pay any fees to us in full by the due dates specified in the Agreement (or if no date is specified, by the commencement of any Services).
6.2 Annual Management and Services Fee: You agree to pay, on an annual basis, all Annual Management and Services Fees in advance at the amount specified in your Emissions Trading Scheme Management and Services Agreement (or if no amount is specified, at Venture Forestry’s then-current fees), as adjusted from time to time under clause 6.7.
6.3 Invoicing: You authorise Venture Forestry to invoice and receive payment from you in advance for Annual Management and Services Fees on an annual basis in accordance with the Emissions Trading Scheme Management and Services Agreement. You must pay each invoice by the applicable due date.
6.4 Payment: You will pay the Annual Management and Services Fees by direct credit, direct debit, or electronic funds transfer. We may require you to provide alternative payment methods. In supplying your bank account details to Venture Forestry’s payment service, you authorise Venture Forestry to invoice and the payment service provider to process payment of your Annual Management and Services Fees and any other outstanding amounts (as applicable) as they become due. You agree to pay all fees and charges incurred or associated with completing payments so that Venture Forestry receives the full amount invoiced.
6.5 Alternative method: If your payment by one payment method fails, you acknowledge that we are authorised by you to take payment from the alternative payment method you have provided.
6.6 Taxes and charges: The Fees are exclusive of all applicable taxes, duties, levies and costs or fees payable on your behalf to the Ministry of Primary Industries or any other regulatory body. You agree to pay all applicable taxes or charges at the relevant rate, upon invoice, in addition to the Fees, whether such applicable taxes are invoiced at the same time as the Fees or subsequently.
6.7 Adjustment:
(a) The Fees are subject to adjustment advised by Venture Forestry no more frequently than once each two calendar years. Each adjustment of Fees under this clause 6.7(a) will not exceed the percentage change in CPI since the most recent adjustment of Fees or, (for the first adjustment, since commencement of your Agreement).
(b) Separately to any adjustment under clause 6.7(a), where we agree to perform additional services or, we will agree with you any additional costs payable by you for those new services. Those agreed additional costs will either be invoiced and payable by you as a one-off amount or added to your Annual Management and Services Fees on an ongoing basis.
7. SUPPORT
7.1 Support: If you need help, please contact us at:
(a) Email: info@ventureforestry.co.nz; or
(b) Telephone: +64 3 425 9695.
7.2 Support: Support will be available from 8:30am until 5:00pm Monday to Friday.
8. WARRANTIES AND ACKNOWLEDGEMENTS
8.1 Acknowledgements: You acknowledge that:
(a) You are responsible for authorising any person who is given access to information or Client Data, and you agree that Venture Forestry has no obligation to provide any person access to such information or Client Data without your authorisation and may refer any requests for information to you to address.
(b) Venture Forestry has no responsibility to any person other than you and nothing in the Agreement confers, or purports to confer, a benefit on any person other than you.
(c) Venture Forestry is not your accountant, and our Service does not constitute the receipt of accounting, financial or tax advice.
(d) Venture Forestry is not your lawyer, and our Service does not constitute the receipt of legal advice.
(e) You remain solely responsible for complying with all applicable accounting, tax and other laws. It is your responsibility to check that any information we use or submit to MPI is correct and will comply with laws applicable to you (including any laws requiring you to retain records).
(f) It is your sole responsibility to determine that the Service meets the needs of your business and is suitable for the purposes for which they are used.
8.2 Business use: The parties acknowledge and agree that the Service is provided for the purpose of your business and accordingly, to the maximum extent permitted by law, consumer protection laws will not apply to the Agreement, or the supply of the Service.
8.3 Representation: You represent and undertake that you are authorised to use and access the information and Client Data.
9. CONFIDENTIALITY AND PRIVACY
9.1 Confidentiality: Each party (“Receiving Party”) shall keep the other party’s (“Providing Party”) Confidential Information confidential and secure and not disclose or permit disclosure of the Providing Party’s Confidential Information to any third party. This clause does not apply to any disclosure of Confidential Information:
(a) required to be disclosed by law; or
(b) that the Providing Party agrees to in writing before the disclosure is made; or
(c) is or becomes publicly available through no fault of the Receiving Party; or
(d) is independently acquired or developed by the Receiving Party without breaching any of its obligations under the Agreement or at law, and without the benefit or use of any of the Providing Party’s Confidential Information disclosed by the Providing Party; or
(e) is in the possession of the receiving party without restriction in relation to disclosure before the date of receipt from the disclosing party; or
(f) is lawfully acquired by the Receiving Party from a third party, provided such information is not obtained as a result of a breach by that third party of any confidentiality obligations owing to the Providing Party.
10. CLIENT DATA
10.1 Security: We are committed to maintaining the security of your Client Data. Venture Forestry will implement and maintain reasonable and robust safeguards and administrative, physical, and technical measures in the Service that are designed to:
(a) protect the security and integrity of Client Data; and
(b) guard against unauthorised access, use, loss or disclosure of Client Data.
10.2 Backup: Venture Forestry adheres to policies and procedures intended to prevent data loss, including creating periodic back-ups of Client Data, but Venture Forestry does not make any guarantees that there will be no loss or corruption of Client Data. Venture Forestry expressly excludes liability for any loss or corruption of Client Data, no matter how caused.
10.3 Request for copy: You may request a copy of Client Data, which we will provide in a standard format reasonably selected by us. This request may take up to 30 days to process.
10.4 After termination: Following the expiry or termination of your Agreement:
(a) We reserve the right to delete all your Client Data in the normal course of operation. You acknowledge and confirm that your Client Data cannot be recovered once it is deleted and Venture Forestry will have no liability for any deleted Client Data.
(b) We may, at our discretion, provide reasonable access to you to retrieve and download your Client Data within a limited time, provided that all Fees owing by you up to the date of termination are paid. The purpose of this access is for the retrieval and download of Client Data only.
(c) We may retain Client Data to the extent it (or any of your Confidential Information) is reasonably required for any official legal, regulatory, or auditing purposes. You may request that we delete your Client Data, which we will do subject to the foregoing requirements and clause 10.5.
10.5 Administrative and aggregated use and backups: Venture Forestry may use Client Data for billing, administrative, or training purposes and in aggregate or anonymised form for analysis and service improvement. We may store Client Data in our periodic backups, without any obligation to delete that Client Data.
11. INTELLECTUAL PROPERTY
11.1 Existing intellectual property: Except as expressly set out in the Agreement, nothing in the Agreement will confer upon a party any rights, interest or title in the other party’s materials (including any modification to those materials) existing at the date of the Agreement or which are developed independently of the other party’s materials.
11.2 Our intellectual property: The Client acknowledges and agrees that any and all Intellectual Property Rights in the Service, including any Intellectual Property Rights developed under or in relation to the Agreement, are held or owned by Venture Forestry or its licensors.
11.3 Your Client Data: Nothing in the Agreement transfers ownership of your Client Data. We acknowledge that we have no Intellectual Property Rights in your Client Data, except as provided in the Agreement. You grant us an irrevocable, royalty-free, sub-licensable licence to use, copy, transmit, store, and back-up your Client Data for the purpose of, or relating to, providing the Service or performing the Agreement.
11.4 Infringement: You must promptly inform us if you become aware of any actual, suspected, alleged, or threatened breach of our Intellectual Property Rights in relation to the Service.
12. LIABILITY
12.1 No liability except for breach: To the maximum extent permitted by law, Venture Forestry has no liability to you except for Venture Forestry’s breach of the Agreement, irrespective of whether such liability arises in contract, tort (including negligence), or otherwise.
12.2 Exclusions: Where Venture Forestry is liable to you, in no event will Venture Forestry be liable for any indirect, special, incidental, consequential or punitive loss or damage. Without limiting the foregoing exclusions, Venture Forestry has and will have no liability:
(a) for any loss or corruption of information, loss or corruption of Client Data, the cost of recovering such data or information;
(b) for any loss of profits, savings, goodwill, business or anticipated business, or reputational damage;
(c) for any accounting matter, including any error or mistake relating to the ETS; or
(d) arising from use of, reliance on, or inability to use or rely on, the Service, or from any failure by you to comply with the Agreement.
12.3 Limitation: To the maximum extent permitted by law, where Venture Forestry is liable to you, the maximum aggregate liability of Venture Forestry is limited in respect of any one incident, or series of connected incidents, to the Fees paid by you in the 12 months immediately preceding the most recent incident giving rise to liability.
13. INDEMNITY
13.1 Client indemnity: You will indemnify and keep indemnified Venture Forestry against all expenses, fines, losses (including loss of revenue and profit), damages and costs (“Loss”) sustained or incurred by Venture Forestry arising directly or indirectly from your breach of the Agreement, including any costs relating to the recovery of any Fees that are due but have not been paid by you. Without limiting the forgoing, you will indemnify Venture Forestry against any claims or Loss relating to:
(a) Venture Forestry's refusal to provide any person access to your information or Client Data in accordance with the Agreement;
(b) Your failure to provide us with correct and timely information relevant to the Agreement or any services we are providing for or to you;
Your failure to transfer our agency as your authorised agent back to you upon Termination
(a) or your failure to terminate our authorised agency when requested by us to do so;
(b) Venture Forestry’s making available information or Client Data to any person with your authorisation; or
(c) any claim by any third party that you do not have the right to use any Client Data, or that your use of any Client Data is a breach of a third party’s Intellectual Property Rights.
13.2 Authorised Person’s indemnity: Where an Authorised Person requests a Service on behalf of a Client (pursuant to clause 3), the Authorised Person indemnifies Venture Forestry for any Loss sustained or incurred by Venture Forestry (including the matters set out in sub-clause 13.1(a) to (c) above (with the necessary changes) arising directly or indirectly from the Authorised Person’s breach of any of the warranties set out in clause 8.1, or that arise as a result of Venture Forestry acting in accordance with any instruction by the Authorised Person, including any costs relating to the recovery of any Annual Management and Services Fees that are due but have not been paid by the Client and any Loss relating to it.
14. TERM AND TERMINATION
14.1 Term: The Agreement comes into effect on the date that you and we have both executed your Agreement. Your Agreement commences on the date notified to you by Venture Forestry and continues in force unless and until your Agreement is terminated in accordance with this clause 14.
14.2 Renewal: Upon expiry of the then-current term of an Agreement subject to a fixed term, the Agreement will automatically renew for a renewal term of one calendar year, (unless a different renewal term is stated in the Agreement), commencing from that expiry date, unless either party, by written notice given to the other party not more than 6 months, and not less than 3 months, prior to the expiry of the term, elects (at the absolute discretion of the party giving that notice) that the agreement will not be renewed. Each renewal period is for, and is subject to, a minimum term of one year (or such other period agreed in writing or set out in your Agreement).
14.3 Termination during minimum term: If your Agreement is subject to a minimum term, your Agreement will continue for the applicable minimum term (plus any renewals) unless we terminate under clause 14.5 or:
(a) we terminate your Agreement by giving you at least 60 days’ written notice; or
(b) you terminate your Agreement by giving us at least 20 days’ written notice in which case you must pay us all relevant Fees that would have become payable up to and including the end of the minimum term. The parties agree that the purpose of the payment term in this clause 14.3(b) is to reflect and give effect to the minimum term arrangement and is not intended to be punitive.
14.4 Your right to terminate for breach: If we are subject to a Breach Event, you may terminate your Agreement by giving us not less than 10 days’ notice.
14.5 Termination for your breach: If you are subject to a Breach Event, we may, at our sole discretion, without notice to you, take any or all of the following actions:
(a) terminate your Agreement;
(b) suspend or terminate access to all or any Client Data.
15. CONSEQUENCES OF TERMINATION
15.1 General: On termination or expiry of your Agreement this Agreement terminates and you:
(a) we will cease provision of the Service;
(b) remain liable for, and must pay within 10 Business Days, any accrued Fees and amounts which become due for payment before or after termination; and
(c) must within 10 Business Days pay all Fees and amounts referred to in clause 14.3(b), where that clause applies; and
(d) must pay default interest on any unpaid amounts, which will accrue at a rate of 15% per annum (or, if there is a lower maximum percentage permitted by applicable law, at the percentage) until the actual date of payment from the date of any missed payment; and
(e) do all such things and execute such documentation as necessary to transfer our authorised access as your agent with any regulatory body back to you as principal.
15.2 No refunds: Venture Forestry will not be required to provide any refund for any prepaid Annual Management and Services Fees on expiry or termination.
15.3 Accrued rights: Termination or expiry of your Agreement is without prejudice to any rights and obligations of the parties accrued up to and including the date of termination.
15.4 Survival: Clauses 3, 5, 6, 8, 9, 10, 11, 12, 13, 14, 15, and 16 survive the expiry or termination of your Agreement.
16. DISPUTE RESOLUTION
16.1 General: Any disputes between the parties will be discussed in the spirit of goodwill. If a party has any dispute in connection with the Agreement:
(a) that party will promptly give full written particulars of the dispute to the other;
(b) the parties will promptly meet (including by phone or video conference) and try to resolve the dispute;
(c) if the dispute is not resolved within 10 Business Days of written particulars being given (or any longer period agreed to by the parties), either party may refer the dispute to mediation; and
(d) party must not commence other legal proceedings, except an application for urgent interlocutory relief, without using the mediation procedure first, and only if the dispute has not been resolved within 20 Business Days of the appointment of the mediator.
16.2 Mediation: If the parties are unable to resolve the dispute by discussion and negotiation within 20 Business Days of the date of the notice of the dispute, then either party may refer the dispute to mediation in the country in which the Venture Forestry entity you have contracted with under the Agreement is domiciled.
16.3 Continuing performance: Pending resolution of any dispute the parties will perform their obligations under the Agreement in all respects.
16.4 Urgent action: Nothing in this section 16 precludes either party from taking immediate steps to seek urgent interlocutory or equitable relief before a court of competent jurisdiction.
17. GENERAL
17.1 Entire agreement: The Agreement (comprising these Terms and your Emissions Trading Scheme Management and Services Agreement), and any additional terms and policies under clause 17.2, constitute the entire agreement between the parties and supersede all prior communications, representations, agreements or understandings, either verbal or written, between the parties with respect to the subject matter of the Agreement.
17.2 Additional terms and policies: We may publish additional policies related to specific services. Your right to use such services is subject to those specific terms and policies in addition to the Agreement.
17.3 Governing law and jurisdiction: You submit to the exclusive jurisdiction of the courts, and to the laws, of New Zealand.
17.4 Changes to these Terms: We may change these Terms at any time. We will make every effort to communicate these changes to you via email or notification via the Website. You are responsible for reading, understanding and accepting the then-current Terms. If you reasonably consider a material change to these Terms will have a material effect on you, then you may advise us of this in writing within 30 days after the changed Terms came into effect. In this case, we may, acting reasonably, allow you to terminate your Agreement, with us waiving your obligation to pay future Annual Management and Services Fees under clause 14.3.
17.5 Rights of Third Parties: A person who is not a party to the Agreement has no right to benefit under or to enforce any term of the Agreement.
17.6 Delays: Neither party will be liable for any delay in meeting, or failure to meet, its obligations under the Agreement (other than an obligation to pay money) to the extent that such delay or failure is caused by any event outside its reasonable control (including any delay or failure caused by any act or omission to the other party).
17.7 Electronic communications: Applicable laws require that some of the information or communications we send to you should be in writing. You accept that communication with us will mainly be by electronic means and agree to this. You acknowledge and agree that all contracts, invoices, notices, information and other communications that we provide to the Client electronically comply with any legal requirement that such communications be in writing.
17.8 Assignment: You may not assign, pledge or transfer any rights, duties or obligations in the Agreement to any other person except with the previous written consent of Venture Forestry. Venture Forestry may assign or novate the Agreement to any Related Entity, or to any entity that acquires all or any part of our business or assets.
17.9 Waiver: No failure or delay by any party in exercising any right, power or privilege under the Agreement will operate as a waiver. A waiver of a right, power or remedy must be in writing and signed by the party giving the waiver.
17.10 Severability: If any provision of the Agreement is, or becomes, unenforceable, illegal or invalid for any reason the relevant provisions shall be deemed to be modified to the extent necessary to remedy such unenforceability, illegality or invalidity or if this is not possible then such provisions shall be severed from the Agreement, without affecting the enforceability, legality or validity of any other provision of the Agreement.
17.11 Notices:
(a) All notices given by a party under the Agreement must be in writing and delivered by e-mail.
(b) A notice sent by email is effective on transmission, provided that any communication received or deemed received after 5 pm or on a day which is not a business day is deemed not to have been received until the next business day.
(c) Notices to Venture Forestry must be sent to info@ventureforestry.co.nz or to any other email address notified by email to you by Venture Forestry.
(d) We may send notices to you using the email address that you provided when requesting the Service. You expressly consent to all contract, invoices, notices, information and other communications that Venture Forestry provides to the Client, being sent to that email address (and any further address you advise to us).