CarbonCrop Software Platform Terms of Use 

1. Application of Terms
 

1.1 These Terms apply to your use of the Service (as that term is defined below). By accessing and using the Service: 
 

a. you agree to these Terms; and 
 

b. where your access and use is on behalf of another person (e.g. a company), you confirm that you are authorised to, and do in fact, agree to these Terms on that person’s behalf and that, by agreeing to these Terms on that person’s behalf, that person is bound by these Terms. 
 

1.2 If you do not agree to these Terms, you are not authorised to access and use the Service, and you must immediately stop doing so. 

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2. Changes 
 

2.1 We may change these Terms at any time by notifying you of the change by email or by posting a notice on the Website; and unless stated otherwise, any change takes effect from the date set out in the notice, which must be no less than 90 days from the date of the notice. 
 

2.2 If you do not agree to the change under clause 2.1, you may terminate these Terms and your access to and use of the Service in accordance with clause 13.1(b). 
 

2.3 You are responsible for ensuring you are familiar with the latest Terms.

 

2.4 These Terms were last updated on January 31st 2024. 

 

3. Interpretation 

In these Terms:

 

CarbonCrop Software means the software owned by us (and our licensors) that is used to provide the Service. 

 

Confidential Information means any information that is not public knowledge and that is obtained from the other party in the course of, or in connection with, the provision and use of the Service. Our Confidential Information includes Intellectual Property owned by us (or our licensors), including the CarbonCrop Software. Your Confidential Information includes the Data. 

 

Data means all data, content, and information (including personal information) owned, held, used or created by you or on your behalf that is stored using, or inputted into, the Service. 

 

Detailed Services means the detailed services set out in the Schedule and further detailed on our Website, as amended from time to time pursuant to clause 2.1. 

 

ETS Carbon Management Agreement means an ETS carbon management agreement in CarbonCrop’s then standard form.
 

Fees means the applicable fees set out in the Schedule, as may be updated from time to time in accordance with clause 8.6.

 

Force Majeure means an event that is beyond the reasonable control of a party, excluding: 
 

a. an event to the extent that it could have been avoided by a party taking reasonable steps or reasonable care; or
 

b. a lack of funds for any reason. 

 

Intellectual Property Rights includes copyright and all rights existing anywhere in the world conferred under statute, common law or equity relating to inventions (including patents), registered and unregistered trade marks and designs, circuit layouts, data and databases, confidential information, know-how, and all other rights resulting from intellectual activity. Intellectual Property has a consistent meaning, and includes any enhancement, modification or derivative work of the Intellectual Property. 

 

Objectionable includes being objectionable, defamatory, obscene, harassing, threatening, harmful, or unlawful in any way. 

 

Personal Information means information about an identifiable, living person. 

 

Personnel includes officers, employees, contractors and agents, but a reference to your personnel does not include us. 

 

Related Company has the meaning given to it in section 2(3) of the Companies Act 1993 (read as if the expression "company" in that subsection included any body corporate of any jurisdiction). 

 

Service means the carbon platform service having the core functionality described on the Website and with the specific functionality described in the Fees, as updated by us from time to time, but does not include the issuance, tracking, and activation of carbon removal units or active management of, or consulting services for, carbon removal units, which would be subject to a separate ETS Carbon Management Agreement or Voluntary Carbon Management Agreement . 

 

Start Date means the date that you commence accessing and using the Service. 

 

Terms means these terms titled CarbonCrop Software Platform terms of use and include the Schedule. 

 

Underlying Systems means the CarbonCrop Software, IT solutions, systems and networks (including software and hardware) used to provide the Service, including any third party solutions, systems and networks. 

 

Voluntary Carbon Management Agreement means a carbon management agreement in CarbonCrop’s then standard form. 

 

We, us or our means CarbonCo Limited, company number 8142644, trading as CarbonCrop. 

 

Website means the internet site at www.carboncrop.com, or such other site notified to you by us. 

 

You or your means you or, if clause 1.1(b) applies, both you and the other person on whose behalf you are acting and includes any entity which is your Related Company and all references to you include any director, trustee, officer, employee, contractor, lessee, licensee, representative or agent of your relevant Related Company.

 

Words in the singular include the plural and vice versa. 

 

Including and similar words do not imply any limit. 

 

A reference to a statute includes references to regulations, orders or notices made under or in connection with the statute or regulations and all amendments, replacements or other changes to any of them. 

 

4. Provision of the Service 
 

4.1 We must use reasonable efforts to provide the Service in accordance with these Terms and New Zealand law. 
 

4.2 Our provision of the Service to you is non-exclusive. Nothing in these Terms prevents us from providing the Service to any other person. 
 

4.3 Subject to clause 4.4, we will use reasonable efforts to ensure the Service is available during normal business hours in New Zealand. However, it is possible that on occasion the Service may be unavailable to permit maintenance or other development activity to take place, or in the event of Force Majeure. We will use reasonable efforts to contact you via email with details of any unavailability. 
 

4.4 If, despite our reasonable efforts under clause 4.3, you consider there is prolonged unavailability of the Service, such that you are unable to use the Service as originally intended for any reason other than planned outages notified to you (such as maintenance or development activity) or in the event of Force Majeure or on the basis described in clause 4.5: 

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a. You must notify us of this in writing at the earliest available opportunity; and 

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b. The dispute will be resolved in accordance with clause 14.2; and 

4.5 If the resolution CarbonCrop offers under clause 14.2 is not acceptable to you, you can terminate the Terms and your right to access and use the Service upon 5 days’ notice. Upon termination pursuant to this clause, you would be entitled to a refund of any unused Fees paid to date. Through the use of web services and APIs, the Service interoperates with a range of third party service features. We do not make any warranty or representation on the availability of those features. Without limiting the previous sentence, if a third party feature provider ceases to provide that feature or ceases to make that feature available on reasonable terms, we may cease to make available that feature to you.

To avoid doubt, if we exercise our right to cease the availability of a third party feature, you are not entitled to any refund, discount or other compensation.

 

5. Your Obligations 

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5.1 You and your personnel must:

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a. use the Service in accordance with these Terms solely for:

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i. your own internal business purposes;

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ii. lawful purposes (including complying with the Unsolicited Electronic Messages Act 2007); and

 

b. not resell or make available the Service to any third party, or otherwise commercially exploit the Service, except within the scope of the Service’s intended function as a multistakeholder and landowner collaboration tool. 

 

6. Data

 

6.1 You acknowledge that we may require access to the Data to provide the Services, exercise our rights and perform our obligations under these Terms, and you will arrange all consents and approvals that are necessary for such access. 

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6.2 You acknowledge and agree that:

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a. we may:

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i. use Data and information about your and your end users’ use of the Service to generate anonymised and aggregated statistical and analytical data (Analytical Data); and

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ii. use Analytical Data for our internal research and product development purposes and to conduct statistical analysis and identify trends and insights; and

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iii. supply Analytical Data to third parties;

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b. our rights under clause 6.2(a) above will survive termination or expiry of these Terms; and

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c. title to, and all Intellectual Property Rights in, Analytical Data is and remains our property. 

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6.3 You acknowledge and agree that to the extent Data contains personal information, in collecting, holding and processing that information through the Service, we are acting as your agent for the purposes of the Privacy Act 2020 and any other applicable privacy law. You must obtain all necessary consents from the relevant individual to enable us to collect, use, hold and process that information in accordance with these Terms. 

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6.4 While we will take standard industry measures to back up all Data stored using the Service, you agree to keep a separate back-up copy of all Data uploaded by you onto the Service.

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6.5 You agree that we may store Data (including any personal information) in secure servers off-shore and access that Data from time to time. This may include countries located outside New Zealand, in accordance with our privacy policy available on our Website. 

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6.6 You indemnify us against any liability, claim, proceeding, cost, expense (including the actual legal fees charged by our solicitors) and loss of any kind arising from any actual or alleged claim by a third party that any Data infringes the rights of that third party (including Intellectual Property Rights and privacy rights) or that the Data is Objectionable, incorrect or misleading.

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6.7 Following termination or expiry of these Terms, we will retain the Data for a minimum of seven (7) years, after which we may have it destroyed. Unless directed by you to remove all copies of Data, backups of the Data may remain in our archives as part of our standard retention policies.

 

7. LINZ License for Personal Data

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7.1 The CarbonCrop Platform enables access to information regarding the owners of property titles as they are presented in the Land Information New Zealand (LINZ) Personal Data dataset.

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7.2 Access to this Title Owner data anywhere in the CarbonCrop Platform is under the terms of the LINZ License for Personal Data 2.2, available at https://data.linz.govt.nz/license/linz-licence-personal-data-22/ (the LINZ License).

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7.3 Use of the Service implies agreement to the LINZ License, and requires compliance with the terms of this license.

 

8. Fees 

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8.1 You must pay us the Fees. 

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8.2 We will provide you with valid GST tax invoices on a monthly basis (unless otherwise agreed). 

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8.3 The Fees exclude GST, which you must pay on taxable supplies. 

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8.4 You must pay the Fees:

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a. by the 20th of the month following the date of invoice ; and 

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b. electronically in cleared funds without any set off or deduction. 

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8.5 We may charge interest on overdue amounts. Interest will be calculated from the due date to the date of payment (both inclusive) at an annual percentage rate equal to the corporate overdraft reference rate (monthly charging cycle) applied by our primary trading bank as at the due date (or, if our primary trading bank ceases to quote that rate, then the rate which in the opinion of the bank is equivalent to that rate in respect of similar overdraft accommodation expressed as a percentage) plus 2% per annum.

 

8.6 We may increase the Fees by giving at least 90 days’ notice. If you do not wish to pay the increased Fees, you may terminate these Terms and your right to access and use the Service on no less than 30 days’ notice, provided the notice is received by us before the effective date of the Fee increase. If you do not terminate these Terms and your right to access and use the Service in accordance with this clause, you are deemed to have accepted the increased Fees. 

 

8.7 If you genuinely dispute any portion of any amount appearing as payable on any invoice issued under clause 8.2:

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a. You must notify us of such dispute in writing at the earliest available opportunity and in any event within 20 Working Days of receiving that invoice (the Disputed Amount); and

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b. The dispute will be resolved in accordance with clause 14; and

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c. if CarbonCrop has received notice under clause (a), no Disputed Amount shall be payable to CarbonCrop until the dispute is resolved pursuant to clause 14. 

 

9. Intellectual Property 

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9.1 Subject to clause 9.2, title to, and all Intellectual Property Rights in, the Service, the Website, and all Underlying Systems is and remains our property (and our licensors’ property). You must not contest or dispute that ownership, or the validity of those Intellectual Property Rights. 

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9.2 Title to, and all Intellectual Property Rights in, the Data (as between the parties) remains your property. You grant us a worldwide, non-exclusive, fully paid up, transferable, irrevocable licence to use, store, copy, modify, make available and communicate the Data for any purpose in connection with the exercise of our rights and performance of our obligations in accordance with these Terms.

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9.3 To the extent not owned by us, you grant us a royalty-free, transferable, irrevocable and perpetual licence to use for our own business purposes any know-how, techniques, ideas, methodologies, and similar Intellectual Property used by us in the provision of the Service. 

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9.4 All Intellectual Property developed during the provision of the Services to you will be exclusively owned by us. Furthermore, if you provide us with ideas, comments or suggestions relating to the Service or Underlying Systems (together feedback):

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a. all Intellectual Property Rights in that feedback, and anything created as a result of that feedback (including new material, enhancements, modifications or derivative works), are owned solely by us; and

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b. we may use or disclose the feedback for any purpose.

 

10. Confidentiality

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10.1 Each party must, unless it has the prior written consent of the other party: 

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a. keep confidential at all times the Confidential Information of the other party; 

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b. effect and maintain adequate security measures to safeguard the other party’s Confidential Information from unauthorised access or use; and 

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c. disclose the other party’s Confidential Information to its personnel or professional advisors on a need to know basis only and, in that case, ensure that any personnel or professional advisor to whom it discloses the other party’s Confidential Information is aware of, and complies with, clauses 10.1(a) and 10.1(b). 

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10.2 The obligation of confidentiality in clause 10.1 does not apply to any disclosure or use of Confidential Information:

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a. Where we publicise your involvement, use of, or feedback on the Service, on our website or otherwise to potential customers and other third parties (with your prior agreement);

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b. for the purpose of performing a party’s obligations, or exercising a party’s rights, under these Terms;

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c. required by law (including under the rules of any stock exchange);

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d. which is publicly available through no fault of the recipient of the Confidential Information or its personnel;

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e. which was rightfully received by a party from a third party without restriction and without breach of any obligation of confidentiality; or

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f. by us if required as part of a bona fide sale of our business (assets or shares, whether in whole or in part) to a third party, provided that we enter into a confidentiality agreement with the third party on terms no less restrictive than this clause 10. 

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10.3 We will be wholly responsible for any breach of clause 10.1 by our officers, employees, contractors and advisers in respect of any Confidential Information disclosed or made available to them.

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11. Warranties 

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11.1 You acknowledge and agree that, to the maximum extent permitted by law: 

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a. you are using the Service at your own risk; and 

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b. our warranties are limited to those set out in these Terms, and all other conditions, guarantees or warranties whether expressed or implied by statute or otherwise (including any warranty under Part 3 of the Contract and Commercial Law Act 2017) are expressly excluded and, to the extent that they cannot be excluded, liability for them is limited to the total amount of Fees paid during the then current calendar year ; and

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c. we are not responsible or liable for, and give no warranties or representations as to:

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i. the outcomes of the Service, either generally or for you specifically;

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ii. any forecasts or projections on financial returns provided via the CarbonCrop Software; and 

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iii. any of our acts or omissions in relation to the Service.

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d. Except as set out in clause 4.3 above, we make no representation concerning the quality of the Service and do not promise that the Service will:

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i. meet your requirements or be suitable for a particular purpose, including that the use of the Service will fulfil or meet any statutory role or responsibility you may have; or

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i. be secure, free of viruses or other harmful code, uninterrupted or error free. 

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11.2 You agree and represent that you are acquiring the Service, and accepting these Terms, for the purpose of trade. The parties agree that: 

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a. to the maximum extent permissible by law, the Consumer Guarantees Act 1993 and any other applicable consumer protection legislation does not apply to the supply of the Service or these Terms; and

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b. it is fair and reasonable that the parties are bound by this clause 11.2

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11.3 The parties have not relied on any representation, warranty or agreement relating to the Service that is not expressly set out in these Terms, and no such representation, warranty or agreement has any effect from the Start Date. Without limiting clause 11.1, the parties agree to contract out of sections 9, 12A and 13 of the Fair Trading Act 1986, and that it is fair and reasonable that the parties are bound by this clause 11.3. 

 

12. Liability 

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12.1 Our maximum aggregate liability under or in connection with these Terms or relating to the Service, whether in contract, tort (including negligence), breach of statutory duty or otherwise, must not in any calendar year exceed any Fees paid by you to us under these Terms. The cap in this clause 12.1 includes the cap set out in clause 11.1(b). 

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12.2 Neither party is liable to the other under or in connection with these Terms or the Service for any: 

loss of profit, revenue, savings, business, use, data (including Data), and/or goodwill; or

consequential, indirect, incidental or special damage or loss of any kind. 

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12.3 Clause 12.2 does not apply to limit your liability under the indemnity in clause 6.6. 

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12.4 Each party (the First Party) shall indemnify and hold harmless the other (the Second Party) from and against any and all fines, losses, claims, liabilities, damages, costs, charges and expenses (including legal expenses) which the Second Party may suffer or incur in connection with any breach of this Agreement by the First Party, or any wilful, unlawful or negligent act or omission of the First Party.

 

13. Term, Termination and Suspension 

13.1 Unless terminated under this clause 13, these Terms and your right to access and use the Service:

 

a. starts on the Start Date; and 

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b. continues until a party gives at least 30 days notice that these Terms and your access to and use of the Service will terminate on the expiry of that notice. 

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13.2 Either party may, by notice to the other party, terminate these Terms and your right to access and use the Service for any reason, upon 30 days’ notice. 

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13.3 Termination of these Terms does not affect either party’s rights and obligations that accrued before that termination. 

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13.4 On termination of these Terms, you must pay all Fees for the provision of the Service prior to that termination. 

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13.5 No compensation is payable by us to you as a result of termination of these Terms for whatever reason. 

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13.6 Except to the extent that a party has ongoing rights to use Confidential Information, at the other party’s request following termination of these Terms but subject to clause 8.7, a party must promptly return to the other party or destroy all Confidential Information of the other party that is in the first party’s possession or control. 

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13.7 At any time prior to one month after the date of termination of these Terms, you may request deletion of any Data stored using the Service or for us to provide you a copy of any Data stored using the Service, provided that you pay our reasonable costs of providing that copy. On receipt of that request, we must provide a copy of the Data in a common electronic form. We do not warrant that the format of the Data will be compatible with any software.

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13.8 Without limiting any other right or remedy available to us, we may restrict or suspend your access to and use of the Service and/or delete, edit or remove the relevant Data if we consider that you or any of your personnel have: 

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a. undermined, or attempted to undermine, the security or integrity of the Service or any Underlying Systems;

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b. used, or attempted to use, the Service:

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i. for improper purposes; or

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ii. in a manner, other than for normal operational purposes, that materially reduces the operational performance of the Service;

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c. transmitted, inputted or stored any Data that breaches or may breach these Terms or any third party right (including Intellectual Property Rights and privacy rights), or that is or may be Objectionable, incorrect or misleading; or

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d. otherwise materially breached these Terms.

 

14. Disputes 

 

14.1 If a dispute arises under these Terms, the parties will attempt to resolve the dispute using the dispute resolution process set out below.

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14.2 Either party can initiate the dispute resolution process by giving written notice of the dispute to the other party (Dispute Notice). Upon the other party receiving the Dispute Notice, the parties will work together in good faith to resolve the dispute. Where the Dispute Notice is given by you, CarbonCrop will follow its internal complaint process set out on its website at https://www.carboncrop.nz/fsp-registration-and-disputes. If the resolution CarbonCrop offers is not acceptable to you, you can (subject to availability criteria set by the scheme) contact our external and independent dispute resolution scheme set out on that website (Scheme).

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14.3 If the dispute is not resolved within 30 days of a Dispute Notice being given (or any longer period agreed to by the parties) and/or in the case of a Dispute Notice given by you where the dispute has not been referred to the Scheme for consideration, any party may provide written notice to the other requiring the dispute to be referred to mediation. If the parties do not agree on the mediator within 14 days of the notice being given, the mediator shall be appointed by the president (or his or her nominee) of the Arbitrators' and Mediators' Institute of New Zealand Inc. The guidelines to govern the mediation shall be determined by the parties. Failing agreement on the guidelines within 14 days of the appointment of the mediator, a party may request the mediator to set the guidelines which shall govern the mediation. 

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14.4 If the dispute is not resolved by mediation within 60 days of the dispute being referred to mediation (or any longer period agreed to by the parties), the mediation must cease and any party may commence proceedings in order to resolve the dispute.

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14.5 Nothing in this clause will preclude or prevent a party from taking immediate steps to seek urgent interlocutory relief before an appropriate court. 

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14.6 While any dispute remains unresolved, the parties agree to continue the performance of this Agreement to the extent that such performance is possible given the nature of the dispute.

 

15 General

 

15.1 Neither party is liable to the other for any failure to perform its obligations under these Terms to the extent caused by Force Majeure.

 

15.2 No person other than you and us has any right to a benefit under, or to enforce, these Terms.

 

15.3 For us to waive a right under these Terms, that waiver must be in writing and signed by us.

 

15.4 Subject to clause 4.3, we are your independent contractor, and no other relationship (e.g. joint venture, agency, trust or partnership) exists under these Terms.

 

15.5 If we need to contact you, we may do so by email or by posting a notice on the Website. You agree that this satisfies all legal requirements in relation to written communications. You may give notice to us under or in connection with these Terms by emailing accounts@carboncrop.com.

 

15.6 These Terms are governed by and must be interpreted in accordance with the laws of New Zealand. Each party submits to the non-exclusive jurisdiction of the Courts of New Zealand in relation to any dispute or proceeding arising out of these Terms.

 

15.7 Clauses which, by their nature, are intended to survive termination of these Terms, including clauses 6.6, 8, 9, 11, 13.4 to 13.6 and 14.3, continue in force.

 

15.8 If any part or provision of these Terms is or becomes illegal, unenforceable, or invalid, that part or provision is deemed to be modified to the extent required to remedy the illegality, unenforceability or invalidity. If modification is not possible, the part or provision must be treated for all purposes as severed from these Terms. The remainder of these Terms will be binding on you.

 

15.9 Subject to clauses 2.1 and 6.5, any variation to these Terms must be in writing and signed by both parties.

 

15.10 These Terms set out everything agreed by the parties relating to the Service, and supersede and cancel anything discussed, exchanged or agreed prior to the Start Date.

 

15.11 You may not assign, novate, subcontract or transfer any right or obligation under these Terms without our prior written consent, that consent not to be unreasonably withheld. You remain liable for your obligations under these Terms despiteany approved assignment, subcontracting or transfer.

 

15.12 These Terms are deemed to be signed by a party if that party has signed or has attached its signature(s) to, any of the following formats of these Terms:

 

a. an original; or

 

b. a photocopy; or

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c. a PDF or email image copy, 

 

and if each party has signed or attached its signature(s) to any such format and delivered it in any such format to the other parties, the executed formats shall together constitute a binding agreement between the parties.

 

SCHEDULE – DETAILED SERVICES AND FEES 

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Fees will depend on the Detailed Services you activate for each site. A “site” is a representation of an area of land within the Service. 

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Sites may be created without activating them. Activation is an explicit opt-in action within the Service which triggers the Core Site Functionality fee as set out below. 

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Detailed Services for a site are activated by you (or your representatives) taking specific actions within the Service to opt in to areas and features or services of interest.

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