Platform and Website Terms of Use - Subscription
These Terms were last updated on 27/07/2022
Any information on the Platform and Website does not constitute financial advice for the purposes of the Financial Markets Conduct Act 2013. Nor do any statements on the Platform and Website take into account your personal financial circumstances and goals.
1. Application of terms
1.1 These Terms apply to your use of our Platform and the Website. By creating an Account with us and by accessing, browsing or otherwise using the Platform and the Website:
(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 there is any conflict between these Terms and any written or verbal communication between you and us, these Terms will take precedence.
2. Definitions and interpretation
2.1 In these Terms:
Account means your account registered with us in order to use the Platform.
AML/CFT means requirements under the Anti-Money Laundering and Countering Financing of Terrorism Act 2009 and associated regulations.
Business Day means any day other than a Saturday, Sunday or public holiday observed in Christchurch, New Zealand.
Buyer means a retail user of the Platform that wants to buy Carbon Units.
Carbon Unit means a New Zealand Unit (NZU) in the ETS representing one metric tonne of sequestered carbon, also known as a carbon credit colloquially.
Carbon Wallet means the electronic wallet where Carbon Units are digitised and represented as VCUs.
Cash Wallet means the electronic wallet where money transferred to us is digitised and represented.
ETS means the New Zealand Emissions Trading Scheme.
FMC Act means the Financial Markets Conduct Act 2013.
Intellectual Property Rights means patents, trade marks, service marks, trade names, registered and unregistered designs, trade or business names, copyright(including rights in code and software), database rights, rights in confidential information, our brand, goodwill and any other intellectual property rights whatsoever, irrespective of whether such intellectual property rights have been registered or not, which may subsist in any part of the world.
Land means land forest is, or is to be, planted on.
Landowner means the seller of Carbon Units who owns the Land or has another right which allow them to receive Carbon Units in respect of the Land.
Loss includes loss of profits, savings, revenue or data, and any other claim, damage, loss, liability and cost, including legal costs on a solicitor and own client basis.
NZETR means the New Zealand Emissions Trading Register.
Personal Information means information about an identifiable, living person.
Platform means our online facility that enables Land to be listed by Landowners and VCUs to be generated and purchased by Buyers.
Services means our performance of activities in relation to the Platform, Website, Underlying System, and any other activities for which we may need to interact with you.
Terms means these terms and conditions titled Platform and Website Terms of Use.
Trees means native trees funded through our platform that are eligible for planting on Land.
Underlying System means any network, system, software, data or material that underlies or is connected to the Platform and Website.
VCU means a digital representation for the purposes of our Platform of a Carbon Unit that has been recognised by the ETS and exists on the NZETR.
Website means the root domain mynativeforest.com and any related sub-domains.
2.2 Unless the context requires otherwise, in these Terms:
(a) capitalised terms have the meaning given to them in clause 2.1;
(b) you or your means the person(s)who accesses the Platform and Website and to whom we provide the Services as notified to us when an application is made. Where applicable, this generally means Landowners and Buyers (unless a provision explicitly applies to one type of user), and any persons who may act on their behalf;
(c) we, us or our means My Native Forest Limited and includes any of our associated companies who may provide services via the Platform and the Website;
(d) the singular includes the plural and vice versa;
(e) including and similar words do not imply any limit;
(f) references to dollar signs ($) or currency are to New Zealand currency;
(g) a reference to a "person" includes:
(i) an individual, body corporate, association of persons (whether corporate or not),trust, state, agency of state and any other entity (in each case, whether or not having separate legal personality); and
(ii) that person’s successors, permitted assigns, executors and administrators (as applicable); and
(h) a reference to any legislation or rule includes any statutory regulations, rules, orders, or instruments made or issued pursuant to that legislation or rule and any amendment to, or re-enactment or replacement of, that legislation or rule.
3. Platform
3.1 The Platform is not (and is not required to be) a licensed financial products market for the purposes of the FMC Act.
3.2 The Platform will generally be available during Monday to Friday 0900 - 1700. We do not assume any responsibility for any issues that arise if all or part of the Platform becomes unavailable from time to time for maintenance or other reasons.
3.3 We will only act within the parameters of your instructions. We may act on any electronic instructions that are given or purported to be given by you with your Account and user details, without needing to validate the authenticity of such instruction. Our records of instructions will be conclusive evidence of those instructions and valid until it is revoked in writing by you.
3.4 To be eligible to use our Platform and Services (whether as a Landowner or a Buyer) you must first create an Account with us.
3.5 Establishment of an Account is at our discretion, but to be eligible you must:
(a) be resident in New Zealand or present in New Zealand at the time you access our website or apply to open an Account on the Platform;
(b) be at least 18 years of age or older;
(c) have and continue to have a bank account with a New Zealand registered bank;
(d) have and continue to have a valid New Zealand mobile phone number; and
(e) provide any other information required by us for any reasonable purpose, including account opening and AML/CFT requirements.
3.6 If you refuse to provide certain requested information, we reserve the right to refuse to open your Account and may not be able to perform our Services.
3.7 You authorise us or third parties we may use, to take necessary steps to validate and authenticate your Account opening information, and any other information you provide to us when you register for an Account, including for the purposes of conducting initial and ongoing customer due diligence in accordance with AML/CFT requirements.
3.8 Your Account on the Platform may not be immediately activated on submitting your application.
3.9 If your information changes at any time, you must notify us immediately.
3.10 After establishing your Account, in order to list Land on the Platform, a Landowner must email us at help@mynativeforest.comand provide us all information we request.
3.11 We will not list Land for a Landowner unless:
(a) the Landowner meets the eligibility criteria to open an Account in clause 3.5;
(b) the Landowner’s Land meets our forest eligibility criteria;
(c) the Landowner passes our AML/CFT onboarding checks; and
(d) the Carbon Units registered against the Landowner’s Land are verified on the NZETR.
3.12 Despite clause 3.11, we may accept or refuse a Landowner’s application for an Account on the Platform and to list their Landon the Platform, without giving any reasons.
3.13 The Landowner will be charged a fixed registration fee that covers the costs to register the Landowner and their Land on the Platform, including AML/CFT onboarding costs and administration costs to verify the Landowner’s Land (see section 9 below).
3.14 If a Landowner’s information changes at anytime, they will need to notify us immediately.
3.15 If we accept a Landowner’s application to register their Land on the Platform, the Landowner must immediately transfer their Carbon Units (verified under clause 3.11(d))to our NZETR account.
3.16 Once the Landowner transfers their Carbon Units to our NZETR account, we will recognise 1 VCU in the Landowner’s Carbon Wallet per verified Carbon Unit.
3.17 The Landowner may list any amount of VCUs from their Carbon Wallet on the Platform for purchase by Buyers. VCUs may only be listed and sold in whole numbers (no fractionalisation of Carbon Units or VCU is permitted).
3.18 To purchase VCUs, a Buyer will need to have funds in their Cash Wallet.
3.19 All Cash Wallets will be denominated in New Zealand dollars.
3.20 We currently accept New Zealand dollars but may place other requirements on the accepted currency for topping up Cash Wallets.
3.21 We may accept top-ups by bank transfer or credit card facility. We may charge a card processing fee and limit the amount you can top up by card. We may also impose a minimum Cash Wallet top up amount.
3.22 We may delay a Buyer’s purchase order if a Buyer’s money has not yet arrived in their Cash Wallet as cleared funds. We do not accept responsibility for any default or delay in the distribution of money as a result of a banks’ or other service provider’s failure.
3.23 If we are unable to identify which Cash Wallet money should be credited to, we may return money to the source it came from, subject to normal banking clearance times.
3.24 A Buyer may purchase VCUs and Trees that are listed by Landowners on the Platform using money from the Buyer’s Cash Wallet.
3.25 In addition to the cost of the VCUs (represented on the Platform as the spot price for NZUs that day or, at our discretion, a fixed price), the following fees will be charged when a Buyer actions the purchase of VCUs under clause 3.24:
(a) a fee at the point of sale to the Landowner (the Success Fee); and
(b) a transaction fee to the Buyer.
(c) See also section 8 below.
3.26 We will transfer to the Landowner's Cash Wallet the money for the VCUs under clause 3.25 from the Buyer’s Cash Wallet less the fees owed to us under clauses 3.25(a) and 3.25(b).
3.27 We will transfer to the Buyer’s Carbon Wallet from the Landowner’s Carbon Wallet the number of VCUs purchased.
3.28 A Buyer may purchase trees on the Platform using money from the Buyer’s Cash Wallet.
3.29 In addition to the cost of the trees(represented on the Platform at a fixed price), the following fees will be charged when a Buyer actions the purchase of Trees under clause 3.24:
(a) a fee at the point of sale to the Buyer (the Subscription Fee)
(b) See also section 8 below.
3.30 We will transfer to the MyNativeForest Cash Wallet the money for the Trees under clause 3.29 from the Buyer’s Cash Wallet less the fees owed to us under clauses 3.29(a) and 3.29(b).
3.31 We will transfer to the Buyer’s Carbon Wallet from the Landowner’s Carbon Wallet the number of VCUs earned as they become available in the Landowner’s NZETR.
3.32
3.33 You may request to withdraw money from your Cash Wallet at any time. You must instruct us to pay your money to a designated bank account.
3.34 We may impose restrictions on the maximum daily amount we may pay out to your designated bank account. We reserve the right to change this threshold without notice to you.
3.35 A Buyer may withdraw VCUs (as Carbon Units) from the Platform. To do so, a Buyer must have an NZETR account.
3.36 You must provide all relevant information required, including details of your NZETR account, and instruct us to transfer the requested amount of Carbon Units held on trust for the Buyer in our NZETR account to the Buyer’s NZ ETR account. We will decrease the amount of VCUs held in the Buyer’s Carbon Wallet by the same amount. If you do not provide this information at the time you want to action the transfer of Carbon Units, we will cancel the transaction.
3.37 We are not responsible for any delays by banks and the NZETR or other service providers in relation to the transfer of money from your Cash Wallet to your bank account nor the transfer of Carbon Units from our NZETR account (recognised as a VCU in your Carbon Wallet) to your NZETR account.
4. Your Representations and Warranties
4.1 You represent and warrant to us (on a continuing basis) that:
(a) you will provide true, current and complete information in all of your dealings with us;
(b) where applicable, you have the necessary authority to act on behalf of another person, or to agree to these Terms or enter into transactions;
(c) where applicable, you are the beneficial owner of the Account or the sole trustee on behalf of the beneficial owner, and that no one else has rights of any kind over the amounts in your Cash Wallet or Carbon Wallet;
(d) you will not be in breach of or infringe any provisions of existing arrangements to which you are a party to by agreeing to these Terms; and
(e) where applicable, the Landowner or the person on whose behalf you are acting, has good title to and is the sole legal and beneficial owner of, each NZU in respect of which an offer for VCUs is placed on the Platform, and that no security interest exists over those NZUs.
4.2 You indemnify us against all Loss we suffer or incur as a direct result of your failure to comply with clause 4.1, unless such Loss was caused by or contributed to by our negligence or default.
5. Your Obligations
5.1 You must:
(a) comply with and use the Platform and our Services in accordance with these Terms;
(b) comply with all applicable laws, including cooperating, assisting and providing information to us in relation to such compliance when we request;
(c) act in good faith towards us and other users at all times;
(d) keep your Account username and password secure, confidential, away from misuse;
(e) immediately notify us if you become aware of any disclosure or unauthorised use of your user details, by sending an email to help@mynativeforest.com; and
(f) unless with our agreement, access the Platform and 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.
5.2 You must not:
(a) act in away, 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 Platform, Website or any Underlying System, or otherwise attempt to damage or interfere with the Platform, Website or any Underlying System;
(b) access or use the Platform from any other jurisdiction where it may be illegal or require action or compliance by us; and
(c) permit any other person to use your user details, including not disclosing or providing it to any other person.
5.3 You are responsible for your own tax obligations arising from transacting with us or each other in relation to the Platform.
6. Intellectual Property
6.1 We (or our licensors) own all proprietary and Intellectual Property Rights (including our brand) in the Platform, Website, and the Underlying Systems used in providing our Services, nothing in these Terms transfers any rights or interests in or to such Intellectual Property Rights to the you or any third party.
6.2 You acknowledge and confirm that any improvement, modification or development of our Intellectual Property Rights arrived at through access to your information or feedback (New IP) will be owned exclusively by us, and nothing in these Terms grants you any rights to our technology or other Intellectual Property Rights.
6.3 If, despite clause 6.1, you own any Intellectual Property Rights in New IP, you grant us anon-exclusive, royalty free, perpetual, irrevocable, worldwide, transferrable and sublicensable right to use such Intellectual Property Rights without restriction.
7. Disclaimers
7.1 To the extent permitted by law, we and our licensors have no liability or responsibility to you or any other person for any Loss in connection with:
(a) the Platform being unavailable (in whole or in part) or performing slowly;
(b) any error in, or omission from, any information made available through the Platform or Website;
(c) any exposure to viruses or other forms of interference which may damage your computer system or expose you to fraud when you access or use the Platform or Website. To avoid doubt, you are responsible for ensuring the process by which you access and use the Platform or Website protects you from this; and
(d) any site linked from the Platform or Website. Any link on the Platform or Website to other sites does not imply any endorsement, approval or recommendation of, or responsibility for, those sites or their contents, operations, products or operators.
7.2 We make no representation or warranty that the Platform and Website is appropriate or available for use in all countries or that the content satisfies the laws of all countries.
7.3 Any information on the Platform or Website does not constitute financial advice for the purposes of the FMC Act. Nor do any statements on the Platform or Website take into account your personal financial circumstances and goals.
7.4 VCUs and NZUs are not financial products and we are not the issuer or the offeror of VCUs and NZUs for the purposes of the FMC Act.
7.5 We do not provide a client money or property service (as defined under the FMC Act) in respect of money, VCUs and NZUs that we receive from you or a third party and hold for your benefit.
7.6 You should read these Terms in conjunction with our Risk Disclosure Statement.
8. Fees
8.1 The following fees may apply to you:
(a) Landowner’s fixed registration fee (see clause 4.13);
(b) Fees in relation to the purchase of VCU (including the Success Fee) (see clause 4.25);
(c) Fees in relation to the purchase of trees (Subscription Fee) (see clause 4.29);
(d) other non-Platform fees, such as setting up your own NZETR account to access NZUs held on trust for you by us.
8.2 You are responsible for any fees, costs or expenses incurred by you in relation to receipt of our Services.
8.3 When you use the Platform, you agree to pay us the fees referenced above or otherwise advised to you when you use the Service. We may change our fees from time to time by giving you notice.
8.4 Where you or a third party for your benefit deposit money into our bank account, you consent to any interest gained on those amounts being retained by us as part of the fees for using our Services. You will not be paid any interest on money in your Cash Wallet or other amounts otherwise held by us for you.
8.5 If amounts are outstanding by you, you agree that we can do either one, or a combination of, the following:
(a) direct MyNativeForest Limited to pay us using the money in your Cash Wallet;
(b) direct MyNativeForest Limited to sell or otherwise deal with VCUs in your Carbon Wallet, and to pay us using the proceeds;
(c) set off any money you owe us against money we owe you;
(d) register a security interest over VCUs in your Carbon Wallet;
(e) immediately cancel or suspend any of your purchase orders or transfer or withdrawal requests without any responsibility to you;
(f) take legal action against you to recover any debt and any costs and expenses we incur in recovering the debt.
9. Holding your money and assets
9.1 You acknowledge the money in your Cash Wallet, NZUs in our NZETR account, Trees purchased and VCUs in your Carbon Wallet may be pooled with other people using our Service. However, we will, at all times, keep detailed records of the money in your Cash Wallet, NZUs in our NZETR account, Trees purchased and VCUs in your Carbon Wallet so that your holdings are individually identifiable.
9.2 The money in your Cash Wallet, NZUs in our NZETR account which are represented by VCUs in your Carbon Wallet and funds paid for Trees will be held on bare trust for you as the ultimate beneficial owner by My Native Forest Limited or any other party approved by us, at our discretion.
9.3 Where we appoint another party to hold cash, NZUs and VCUs on your behalf, we are responsible and liable for that party to the same extent as for its own acts.
9.4 Amounts that are held on bare trust for you by My Native Forest Limited exclude any fees or other charges you have paid or owe to us.
9.5 You agree with us that you will not give any instruction to My Native Forest Limited in relation to assets held on bare trust which is inconsistent with these Terms or in breach of any law.
10. Liability
10.1 To the maximum extent permitted by law:
(a) you access and use the Platform or Website at your own risk; and
(b) we are not liable or responsible to you or any other person for any Loss under or in connection with these Terms, the Platform, Website or your access and use of(or inability to access or use) the Platform and Website, unless this is caused by our negligence, wilful default or fraud.
10.2 Where you are a ‘consumer’ for the purposes of the Consumer Guarantees Act 1993, nothing in these Terms limits or excludes your consumer guarantees and remedies pursuant to that legislation.
10.3 To the extent clauses 10.1 and 10.2 of these Terms do not apply, our total liability to you under or in connection with these Terms, or in connection with the Platform or Website, or your access and use of (or inability to access or use) the Platform or Website, must not exceed NZD100.
11. Privacy policy
11.1 Any Personal Information collected, processed, stored and used by us in connection with our Services, the Platform or Website will be handled in accordance with the Privacy Act 2020, our Privacy Policy and this clause 11 of the Terms.
11.2 You also agree to comply with any laws applicable in relation to the collection, processing, and storing of your Personal Information in connection with our Services.
11.3 We may collect technical information whenever you log on to, or visit the public version of, our Platform and Website, including how you arrive at, browse through and interact with our Platform and Website. We may collect this type of technical information through the use of cookies and other means. If you want to disable cookies, you may do so by changing the settings on your browser. However, if you do so, you may not be able to use all of the functions on the Platform and Website. We use the technical information we collect to, among other reasons noted in our Privacy Policy, have a better understanding of the way people use our Platform and Website, to improve the way it works and to personalise it to be more relevant and useful to your particular needs.
11.4 We may disclose your Personal Information to third parties to use for any purpose in connection with performing our Services. This may include, among other things, disclosing information:
(a) to service providers and other persons working with us to make the Platform and Website available or improve or develop its functionality (e.g. we may use a third party supplier to host the Platform and Website);
(b) in relation to the proposed purchase or acquisition of our business or assets; or
(c) where required by applicable law or any court, or in response to a legitimate request by a law enforcement agency.
11.5 Any Personal Information you provide to us maybe 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.
11.6 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 help@mynativeforest.com.
12. Dispute resolution
12.1 We aim to handle any complaints in a fair and efficient manner and ensure complaints are dealt with promptly, fairly investigated and appropriate action has being taken where necessary.
12.2 If you wish to complain, you should lodge a written complaint to us via help@mynativeforest.com.
12.3 Upon receiving your written complaint, we will acknowledge your complaint by email within 5 Business Days of receiving it.
12.4 We will aim to undertake our review of your complaint and send any findings to the email address with which you sent the complaint.
12.5 If we fail to resolve a complaint to your satisfaction or if we fail to do so within 40 Business Days of receiving your complaint, you can also direct your complaint to the FSCL (which we are a member of) at PO Box 5967, Wellington6140, or call 0800 347 257 or email complaints@fscl.org.nz.
13. Suspension and termination
13.1 You may terminate your Account with immediate effect, at any time, by giving written notice to us via help@mynativeforest.com.
13.2 Without prejudice to any other right or remedy available to us, if we consider that you have breached these Terms or for any other reason we consider appropriate, we may suspend or terminate your access to the Platform and Website with immediate effect (or any part of it), at anytime, by giving written notice to you.
13.3 On suspension or termination:
(a) we will complete any pending or processing transactions as soon as practicable, provided you pay us the amounts under clause 13.3(b);
(b) you must pay all outstanding fees and other amounts owing to us;
(c) unless we agree otherwise with you in writing, we may sell, deal with, or withdraw your cash, NZUs or VCUs and pay the net proceeds (after deducting outstanding amounts under clause 13.3(b)) to you. If we end up holding any money that becomes unclaimed money, we may account for that money under the Unclaimed Money Act 1971;
(d) we will not refund any part of any fees or charges already incurred (including any applicable set up and transaction fees);
(e) if your Cash Wallet contains less than $1.00, then you will not be able to withdraw that amount and upon closure of your Account we will retain this small amount; and
(f) you must immediately cease using the Platform and Website and must not attempt to gain further access.
13.4 Where we appoint another party to hold cash, NZUs and VCUs on your behalf, you authorise us to give any necessary instruction to that party to complete the actions in clause 13.3 on your behalf.
13.5 We do not accept any responsibility for any Loss that you may suffer from our decision to suspend or close access to your Account.
14. Changes
14.1 We may change these Terms, by updating them on the Website, in whole or in part, at any time, by giving you notice.
14.2 Where a change may have a materially negative impact on you (such as changing, suspending, discontinuing or restricting access to the Platform and Website), we will give you 10 Business Days notice. Where we are required to make a change for regulatory or legal reasons, we may give you less notice.
14.3 We do not need to give you notice of changes where there is no materially negative impact on you or where there are incidental changes. Unless stated otherwise, such changes take effect immediately.
14.4 By continuing to access and use the Platform and Website, you agree to be bound by the changed Terms.
15. General
15.1 Relationship between parties: Nothing in these Terms creates a relationship of agency, partnership, or joint venture between the parties (including with us, or with the landowner and buyer). You do not have authority to make or accept any offers or representations on our behalf. We may, however, need to act on your behalf as an agent to perform some of our Services in relation to the Platform.
15.2 Notices and Written Communications: You can notify, contact or email us at help@mynativeforest.com. If we need to contact you, we may do so by email or by posting a notice on the Website and Platform. You agree that this satisfies all legal requirements in relation to written communications.
15.3 Governing law: These Terms, and any dispute relating to these Terms, the Platform or the Website 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 connected with these Terms, the Platform or the Website.
15.4 Waiver: A failure for us to enforce any provision of these Terms shall not constitute a waiver for such provision. For us to waive a right under these Terms, the waiver must be in writing.
15.5 Force majeure: We are not liable for any delay in performing, failing to perform, or breach of these Terms and any Service due to any circumstance or event beyond our reasonable control (including the availability of the Platform and Website). We will aim to use reasonable efforts to perform its obligations as soon as practicable following the cessation of these events.
15.6 Survival clauses: Clauses which, by their nature, are intended to survive termination of these Terms, including clauses 4.2, 6, 7, 10, 15.2, continue in force.
15.7 Assignment: You must not transfer, novate or assign your rights and obligations under these Terms without our prior written consent (such consent not to unreasonably withheld or delayed). We may transfer, novate or assign any rights and obligations under these Terms at any time.
15.8 Severability: 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 a 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 in full force and effect and binding on you.
15.9 Entire agreement: These Terms set out everything agreed by the parties relating to your use of the Platform and Website, and supersede and cancel anything discussed, exchanged or agreed prior to you agreeing to these Terms. The parties have not relied on any representation, warranty or agreement relating to the Platform and Website that is not expressly set out in the Terms, and no such representation, warranty or agreement has any effect from the date you agreed to these Terms.
