Terms of Trade

General
1. 1.1. All Services to be provided by Mycotree will be governed by these Terms of Trade (“the Terms”) as varied by any special terms agreed to by Mycotree in writing.
2. 1.2. The Terms shall prevail over any other terms unless Mycotree specifically confirms acceptance of any special terms in writing. Unless otherwise agreed by Mycotree in writing, any special terms shall apply only to that specific order.
Services
1. 2.1. In these Terms, “Services” means all services provided by Mycotree to the Customer.
2. 2.2. Mycotree will provide the Services using reasonable care and skill, adopting such methods as Mycotree considers appropriate and in accordance with any special terms agreed to by Mycotree in writing.
3. 2.3. The Customer cannot withdraw an Order after work has commenced without the prior written agreement of Mycotree.
4. 2.4. The Services will be undertaken in the time period agreed to between Mycotree and the Customer and in the absence of agreement, within a reasonable time. Mycotree will not be liable for any delay in providing the Services.
5. 2.5. Mycotree may delegate the performance of part or all of the Services to a third party and the Customer authorises the release of all information necessary to the third party for the provision of the Services.
6. 2.6. Any reports provided by Mycotree can only be relied on by the party to whom the report is addressed and cannot be relied on by any other party. By providing the Services (and any reports), Mycotree will not be deemed to have assumed any obligation or liability that the Customer has to a third party.
7. 2.7. If Mycotree commences testing and at its sole discretion decides that the samples or any of the samples are not suitable for testing, it may cease all testing of the samples. Mycotree reserves the right to charge the Customer a sum proportionate to the work carried out up to ceasing the testing. The Customer shall have no claim against Mycotree for its decision to cease testing.
OBLIGATIONS OF THE CUSTOMER
1. 3.1. To enable Mycotree to provide the Services, the Customer will:
2. - (a) Provide all information, materials and assistance that Mycotree reasonably requires to undertake the Services;
    (b) Provide for, or pay for access to, specific equipment that is required to deliver the work;
    (c) Ensure that adequate quantities of the samples and materials are provided in a safe condition;
    (d) Ensure that sufficient information, instructions and documentation are provided;
    (e) Where appropriate, provide safe and secure access to the site and access to the Customer’s representatives;
    (f) Inform Mycotree in advance of any hazard or danger, actual or potential associated with any samples or testing; and
    (g) Immediately inform Mycotree of any change that could affect the provisions of the Services or the safety of its personnel.
3. 3.2. If Mycotree incurs any additional costs by reason of the Customer failing to supply any information, materials, and assistance that is to be provided by the Client, such costs shall added to the fee and shall be payable by the Customer.
FEES AND PAYMENT
1. 4.1. The Customer will pay the fees agreed between the Customer and Mycotree for the Services. If the parties have not agreed on the fee payable for the Services, then the Customer will pay Mycotree the standard fees for the provision of the Services as determined by Mycotree.
2. 4.2. Unless otherwise agreed in writing all fees quoted are exclusive of all expenses such as travelling costs and any disbursements incurred on behalf of the Customer.
3. 4.3. The fees will be paid by the 20th calendar day of the month following the issue of an invoice for the Services by Mycotree.
4. 4.4. Fees will be paid without deduction, set off or counter claim and the Customer cannot retain or defer payment on account of any dispute with Mycotree.4.5. If the Customer fails to pay any fees when due, Mycotree may:
5. - (a) Calculate interest at the rate of 10% per annum calculated on a daily basis for any fees or part of fees outstanding at the due date for payment;
    (b) Commence proceeding for the collection of unpaid fees and the Customer will be liable for all costs incurred by Mycotree (including all legal costs on a solicitor-client basis);
    (c) Withhold the release of any reports until all fees have been paid in full by the Customer;
    (d) Require that part or all of the fees be paid in advance of providing the Services;
    (e) Cease providing the Services to the Customer without notice.
6. 4.6. In the event that any unforeseen circumstances or expenses arise in undertaking the Services, Mycotree will endeavor to inform the Customer of any additional costs incurred by Mycotree and unless the Customer advises Mycotree not to undertake any further works, the Customer will be responsible for the additional costs.
TITLE TO PROPERTY AND REPORTS
1. 5.1. Mycotree will retain title to any analysis, results, reports or software produced by Mycotree until all fees have been paid by the Customer.
2. 5.2. Mycotree will be entitled to store, use, publish or otherwise deal with all analysis, results, reports, or software so long as Mycotree does not identify the Customer, except where required by law.
3. 5.3. All intellectual property rights created in the course of the provision of the Services by Mycotree pursuant to this agreement will vest in Mycotree immediately upon creation. If required by Mycotree, the Customer will execute all documents and do all acts and things required to enable the rights to vest in Mycotree.
4. 5.4. Any report provided by Mycotree and the copyright contained therein shall be and remain the property of Mycotree until all fees have been paid in full. The Customer shall not alter or misrepresent the contents of such documents in any way. The Customer shall be entitled to make copies for its internal purposes only.
5. 5.5. The Customer may only reproduce or publish any report by Mycotree in full without alternation. Mycotree’s name, logo or service marks, or any other means of identification cannot be used in any publication by the Customer unless the Customer has obtained the prior written consent of Mycotree.
LIMITATION OF LIABILTY
1. 6.1. The Customer acknowledges that the Services are provided using the then current state of technology and methods developed and generally applied by Mycotree and involve analysis, interpretations, consulting work and conclusions. Mycotree shall use commercially reasonable degree of care in providing the Services.
2. 6.2. Reports are issued on the basis of information, documents and/or samples provided by, or on behalf of, the Customer and solely for the benefit of the Customer who is responsible for acting as it sees fit on the basis of such reports. Neither Mycotree nor any of its officers, employees, agents or subcontractors shall be liable to the Customer nor any third party for any actions taken or not taken on the basis of such reports nor for any incorrect results arising from unclear, erroneous, incomplete, misleading or false information provided to Mycotree.
3. 6.3. Mycotree shall not be liable for any delayed, partial or total non-performance of the Services arising directly or indirectly from any event outside Mycotree’s control including failure by the Customer to comply with its obligations hereunder.
4. 6.4. The liability of Mycotree in respect of any claim for loss, damage, or expense of any nature and howsoever arising shall in no circumstances exceeded the lesser of an amount equal the fee paid in respect of the Service which gives rise to the claim.
5. 6.5. Mycotree shall have no liability for any indirect or consequential loss including, without limitation, loss of production, loss of contracts, loss of profits, loss of business or costs incurred from business interruption, loss of opportunity, loss of goodwill or damage to reputation and cost of product recall. It shall have no liability for any loss, damage or expenses arising from the claims of any third party that may be incurred by the Customer.
6. 6.6. In the event of any claim, the Customer must give written notice to Mycotree within 60 days of discovery of the facts alleged to justify such a claim, and, in any case, Mycotree shall be discharged from all liability for all claims for loss, damage or expense unless proceedings are brought within six calendar months from:(a) The date of performance by Mycotree of the Service which gives rise to the claim; or(b) The date when the Service should have been completed in the event of any alleged non-performance.
7. 6.7. Unless Mycotree explicitly agrees in writing, the Services shall be provided exclusively to the Customer and cannot be relied on by a third party. The Customer will indemnify and hold Mycotree harmless against any and all third party claims relating to the provision of the Services to the Customer.
8. 6.8. The Customer shall be responsible for and indemnifies Mycotree against all costs, damages, liabilities and injuries that may be caused to or incurred by Mycotree or its personnel or representatives including on the sampling site, during transportation or in the laboratory by the Customer’s sample of by sampling site conditions.
9. 6.9. Regarding mycorrhiza testing of root samples from a truffle orchard or from mycorrhizal seedlings produced in a nursery, the information supplied by Mycotree does not apply to the parts of the root systems that were not inspected. Although Mycotree will endeavour to consider samples in totality, it cannot guarantee that every part (i.e.
CONFIDENTIALITY
1. 7.1. The parties will keep confidential, and will not use nor permit the use of, any information concerning the affairs of the other except as permitted by this agreement and except to the extent that:
2. - (a) the information lawfully enters the public domain; or
    (b) the information is received in good faith from a third party, where no obligation of confidentiality is owed to the third party; or
    (c) the party independently develops the information without reference to any information received from the other party; or
    (d) the party to whom the information relates consents in writing to its disclosure; or
    (e) disclosure is required by law in which case the receiving party shall promptly notify the disclosing party and take all reasonable steps so as to allow the disclosing party the full opportunity to oppose disclosure.
3. 7.2. Each party will ensure that its agents and employees who receive, or may receive, information which this agreement requires to be kept confidential, are aware of and are bound by the confidentiality provisions of this agreement
4. 7.3. Each party will, if required by the other party, obtain a written undertaking from any person to whom information which this agreement requires to be kept confidential is likely to be disclosed, which confirms that they have read and understood the confidentiality provisions of this agreement, and will comply with them.
FORCE MAJEURE
1. 8.1. If Mycotree is prevented from performing or completing the Services for any cause outside Mycotree’s control, including, but not limited to, acts of god, pandemic, war, terrorist activity or industrial action, electricity outage, subsidence of soil, disease, genetic variation, failure of machinery or equipment, failure to obtain permits, licenses or registrations, court order, illness, death or failure by the Customer to comply with any of its obligations, the Customer will pay Mycotree:
2. - (a) The amount of all non-refundable expenses incurred by Mycotree; and
    (b) A proportion of the fee equal to the proportion of the Services actually carried out (provided that if the Services cannot be performed as a result of an act or omission of the part of the Customer, the Customer will pay the full fee and all expenses incurred by Mycotree), and Mycotree will be relieved of all responsibility whatsoever for the partial or total non-performance of the Services.
MISCELLANEOUS
1. 9.1. If any one or more provisions of the Terms are found to be illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired.
2. 9.2. The Customer acknowledges that the Customer entered into this agreement solely in reliance on the Customer’s own judgment and that Mycotree did not induce the Customer to enter into this agreement by any statement, representations, assurances or warranties.
3. 9.3. Mycotree may perform similar services, or identical, to the Services provided under this agreement, for other persons. The Customer acknowledges that if Mycotree does so, it will not constitute a conflict of interest.
4. 9.4. Except as expressly provided in these Terms of the Special Terms, the Customer may not assign or transfer any of its rights without Mycotrees prior written consent.
5. 9.5. The provisions of the Consumer Guarantees Act 1993 and sections 9, 12A, 13 and 14(1) of the Fair Trading Act 1986 shall not apply.
6. 9.6. The parties acknowledge that Mycotree provides the Services to the Customer as an independent contractor and that this agreement does not create any partnership, agency, employment or fiduciary relationship between Mycotree and the Customer.
7. 9.7. Any failure by Mycotree to require the Customer to perform any of Mycotrees obligations under these Terms shall not constitute a waiver of its right to require performance of that or any other obligation.
8. 9.8. These Terms will be interpreted in accordance with and governed by the laws of New Zealand and any New Zealand Courts will have exclusive jurisdiction over any dispute in relation to the Goods.
9. 9.9. The Terms may be modified in writing from time to time by Mycotree and the order for Services will be governed by the most recent version of these Terms that are in effect at the time Mycotree accepts the order.
10. 9.10. Unless Mycotree specifically confirms acceptance in writing, Mycotree will not be bound by any terms and conditions set out in the Customer’s purchase order.

Terms of Trade

General

Services

OBLIGATIONS OF THE CUSTOMER

FEES AND PAYMENT

TITLE TO PROPERTY AND REPORTS

LIMITATION OF LIABILTY

CONFIDENTIALITY

FORCE MAJEURE

MISCELLANEOUS

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