“GST” goods and services tax as defined under the Goods and Services Tax Act 1985 (or any successor legislation);
“Map My Farm” means the interactive function forming part of our Website (provided by Aero-Link Pro) that enables you to send a job enquiry to us that includes the location of Services you would like us to provide;
“personal information” means any information about an identifiable, living person;
“Services” means any services that we supply to you as agreed from time to time;
“Terms” means these terms and conditions of trade;
“Underlying System” means any network, system, software, data or material that underlies or is connected to the Website;
“We, us or our” means Aerospread Limited (1190559); “Website” means www.aerospread.co.nz; and
“You” means you or if clause 2.3 applies, both you and the other person on whose behalf you are acting.
2. Acceptance of Terms
2.1 All Services provided to you by us and your use of our Website are on the basis set out in these Terms unless agreed otherwise in writing.
2.2 We may vary these terms from time to time which shall be uploaded to our Website and unless stated otherwise, any change takes effect immediately. You are responsible for ensuring you are familiar with the latest Terms. By continuing to engage us for supply of Services you agree to be bound by the changed Terms.
2.3 Where your access and use of the Website 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.
2.4 The Terms can only be amended with our written consent.
2.5 None of our employees, agents, subcontractors or representatives are authorised to make any representations, statements, conditions or agreements contrary to these terms and conditions and we are not bound by any such unauthorised statement.
3.1 The Services are as described in the project description set out in our tender, quotation or price estimate which is based on the background information that you have provided to us.
3.2 If you provide us with background information using Map My Farm then you confirm that those details which you have entered are true and correct. That background information entered into Map My Farm which we are relying on you to be correct includes the location of the inclusion areas, exclusion areas (including organic properties) and hazard notes.
3.3 Once you have received our tender, quotation or price estimate and instructed us to proceed, we will begin to supply the Services on the basis that the project description is correct.
3.4 If you advise us of any changes to the project description or request any additional work, it may be necessary for us to re-price our tender, quotation or price estimate.
3.5 Where either you or we become aware of anything that will materially affect the scope or timing of the Services, that must be brought to the other party’s attention as soon as practicable.
3.6 If we raise with you any concern regarding the state of the air strip or the property on which Services are to be provided:
3.6.1 we may withdraw from providing the Services and will not be liable for any loss or damage whatsoever arising from such withdrawal; and
3.6.2 if you authorise us to continue with the Services, we shall have no liability whatsoever in respect of those Services and you must make payment in full on the due date regardless of the outcome.
3.7 In providing the Services, we will use the skill, care and diligence reasonably expected of a professional providing similar services to these Services including but not limited to the use of suitably qualified pilots and loaders.
4.1 Unless agreed otherwise in writing, all accounts must be paid on the 20th of the calendar month following the date of invoice.
4.2 We may also issue interim invoices if the Services being supplied extend over into the following month or following the completion of the Services if they are delayed.
4.3 All payments must be made in full and without any deduction or set off.
4.4 We will also invoice to you all agreed expenses and/or third party costs we incur in the provision of the Services and which are not paid directly by you.
4.5 GST is payable by you on all payments to us.
4.6 If you fail to pay us when payments are due:
4.6.1 you must, upon demand, pay interest at 5% per month on the amount outstanding from the due date until the date payment in full is received; and
4.6.2 you indemnify us from and against all costs, expenses and disbursements incurred by us in collecting the outstanding amount (including our legal costs and any debt collection agency fees); and
4.6.3 we may suspend provision of any further Services until we are paid in full.
5. Your Obligations
5.1 Where you need us to follow any specific procedures or protocols in the provision of the Services, we will only be bound by those procedures and protocols that are in writing and have been agreed to by us.
5.2 Upon request, you must provide us with all relevant information that is in your possession or able to be obtained by you relating to the project.
5.3 You must advise us if any material or information that you provide to us is confidential. If you do this then we will keep that material or information confidential except where it is reasonably necessary to do otherwise so that we can complete the Services.
5.4 You must, prior to the commencement of Services, provide us with:
5.4.1 a suitable map of the treatment area identifying all hazards (and any potential hazards) on the property / treatment area such as any low electric fence wires, phone or power wires including high tension power wires. We may request further information from you in respect of any hazards.
5.4.2 an acknowledgement of the airstrip register and a copy of your health and safety plan for the property which the Services relate to.
5.4.3 written identification of any organic farming areas (including those areas on neighbouring properties).
Irrespective of your obligation under this clause 5.4, we do not assume any responsibility imposed on you under the Health and Safety at Work Act 2015.
6. Warranties & Liabilities
6.1 Subject to clauses 6.2, 6.4 & 6.5, where we breach these Terms, our liability to you is limited to reasonably foreseeable claims, damages, liabilities, losses or expenses caused directly by the breach.
6.2 Our maximum liability to you under these Terms shall be the greater of the net insurance proceeds available to us in respect of the breach or the amount paid by you for the Services.
6.3 All warranties and guarantees implied into this supply of Services are excluded to the extent permitted by law.
6.4 We have no liability to you for any delay in provision of the Services nor for any consequential or indirect loss or loss of profits suffered by you arising out of any act or omission of us in the provision of the Services.
6.5 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lockout, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party including any lockdown due to pandemic.
6.6 If you are obtaining the Services for the purposes of a trade or business, you acknowledge that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of the Services by us to you.
6.7 You indemnify us for any loss or costs we incur as a result of you breaching these Terms.
6.8 Where the Services are requested by an agent (or person purporting to be an agent) on your behalf both the agent and you will be jointly and severally liable for payment of all fees and expenses payable to us.
7.1 You must notify us of any alleged defect in the Services as soon as possible after becoming aware of the alleged defect and in any event within 2 working days of becoming aware of the alleged defect (time being of the essence). The parties must use their best efforts to resolve the issue as soon as possible. You shall if requested by us afford us a reasonable opportunity to rectify or mitigate the effects of the defect. If you fail to comply with these provisions the Services shall be conclusively presumed to be in accordance with the Terms and free from any defect.
7.2 If a dispute arises between us and we are unable to resolve that dispute within thirty (30) days of it being raised in writing, then the matter may be referred by either of us to mediation pursuant to clause 7.3.
7.3 Mediation may be initiated by either of us writing to the other and identifying the dispute and suggesting an appropriate mediator. If we are unable to agree upon a mediator within seven days of the written request for mediation then either of us may request the Arbitrators and Mediators Institute of New Zealand to appoint a mediator.
7.4 Each party must, to the extent possible, continue to perform its obligations under the Terms even if there is a dispute.
8.1 We warrant that we hold public liability insurance for not less than $5,000,000 and will continue to maintain such cover for the duration of the Services.
9.1 You authorise us to:
9.1.1 collect, retain and use any information about you, for the purpose of assessing your creditworthiness or marketing products and services to you; and
9.1.2 disclose information about you (whether collected by us directly from you or obtained from any other source) to any credit reporting agency for the purposes of obtaining a credit reference or for debt collection purposes.
9.2 If you are an individual, then the authorities in clause 9.1 above are consents for the purposes of the Privacy Act 2020 and the Credit Reporting Privacy Code 2020 (as updated from time to time).
9.3 When you provide personal information to us, we will comply with the Privacy Act 2020.
9.5 Generally, we do not disclose personal information to third parties for them to use for their own purposes. However, some of the circumstances in which we may do this are:
9.5.1 to service providers and other persons working with us to make the Website available or improve or develop its functionality (e.g. we may use a third party supplier to host the Website);
9.5.2 in relation to the proposed purchase or acquisition of our business or assets; or
9.5.3 where required by applicable law or any court, or in response to a legitimate request by a law enforcement agency.
9.6 Any personal information you provide to us may be stored on the secure servers of our trusted service providers, which may be located outside New Zealand. This may involve the transfer of your personal information to countries which have less legal protection for personal information than New Zealand.
9.7 You have the right to request access to and correction of any of the personal information we hold about you. If you would like to exercise these rights, please email us at email@example.com.
10. Use of Website
10.1 You must:
10.1.1 not act in a way, or use or introduce anything (including any virus, worm, Trojan horse, timebomb, keystroke logger, spyware or other similar feature) that in any way compromises, or may compromise, the Website or any Underlying System, or otherwise attempt to damage or interfere with the Website or any Underlying System; and
10.1.2 unless with our agreement, access the Website via standard web browsers only and not by any other method. Other methods include scraping, deep-linking, harvesting, data mining, use of a robot or spider, automation, or any similar data gathering, extraction or monitoring method
10.2 You must obtain our written permission to establish a link to our Website. If you wish to do so, email your request to firstname.lastname@example.org.
10.3 We (and our licensors) own all proprietary and intellectual property rights in the Website (including all information, data, text, graphics, artwork, photographs, logos, icons, sound recordings, videos and look and feel), and the Underlying Systems.
11. Suspension and Termination
11.1 Without prejudice to any other right or remedy available to us, if we consider that you have breached these Terms (including but not limited to a breach of clause 4.1) or we otherwise consider it appropriate, we may immediately, and without notice, suspend or terminate the supply of our Services to you.
11.2 You may cancel or suspend all or part of the Services by giving notice to us in writing. You will be liable for any work we have done, or costs we have incurred, up to the date and time of us receiving your notice cancelling or suspending the Services.
12. General Terms
12.1 If any provision of these Terms shall be in valid or unenforceable for any reason then the validity and enforceability of the remaining provisions shall not be affected.
12.2 These Terms shall be governed by the laws of New Zealand and are subject to the jurisdiction of the courts of New Zealand.
12.3 If we delay enforcing any provision of these Terms that shall not mean that we waive that provision nor shall it affect our right to enforce that provision later on.
12.4 Clauses which, by their nature, are intended to survive termination of these Terms, including clauses 4.6, 6 and 10.3 continue in force.