AIMER Terms and Conditions

ACCEPTANCE
1.1 By ticking ‘I Accept’ in relation to the Subscription, Subscription Term and Subscription Price, Terms and Conditions and Privacy Policy ‘Agreement’ you, the Customer, agrees to be bound by these Terms and Conditions, and Privacy Policy.

INTERPRETATION
1.2 Definitions: In this Agreement, background recitals, and any schedules to it, the following words will, unless the context otherwise admits or requires, have (with or without the definite article) the following meanings:
Aimer means Aimer Development Limited.
Aimer System means Aimer’s cloud and mobile-based platform, (including software modules, if any) that hosts the Aimer operating system and digital assistant for pastoral farming that relates to the Subscription. The Aimer System includes any maintenance, amendments, or improvements
Commencement Date means the date identified as such in the Particulars.
Confidential Information means any information, whether verbal, written or otherwise including documents, plans, sketches, drawings, software, marketing strategies, market research data, product literature, trade secrets, processes, technical information, know-how, projections, inventions, Customer lists, techniques, methodologies, correspondence, writing, analysis, compilations, studies and/or business information which relates to a party and which is marked or stated to be confidential, or by its nature is reasonably intended to be confidential, but does not include such information which:
(i) was known to a party on the date of its receipt from the other party;
(ii) was in the public domain on the date of its receipt from the other party; or
(iii) had entered the public domain after the date of its receipt from the other party other than by unauthorised disclosure.
Data means all Customer data and other data that the Customer uploads or inputs into the Aimer System (or that Aimer uploads or inputs on the Customer’s behalf).
Farm Area means the agreed farm map and information provided to Aimer by the Customer to be uploaded to the Aimer System, the agreed Farm Area to which the Licence applies is specified in the Particulars.
Intellectual Property means all or any of the following which a party owns or is authorised to use: trade marks and applications for registration of trade marks, trade name(s), patents and applications for patents, know-how, being technical and other information or experience or trade secrets, copyright in any written material, plans, software (both source code and object code) or any other work, designs, whether or not registered or protected by copyright, and any other intellectual property.
Maintenance means those standard patches, bug fixes and updates that Aimer may install on the Aimer System.
Materials means all setup, configuration, user guides and other materials (if any), which may be amended from time to time by Aimer, provided by or otherwise made available by Aimer to the Customer in relation to the Aimer System.
Purpose means providing a digital assistance tool for Customer’s use in relation to the agreed Farm Area to assist with the optimisation and measurement of pasture use.
Software means source code, object code, algorithms, business rules, executable object code, sub-routines, diagnostic routines, control software and other programming components used within the software, together with any updates or upgrades made from time to time.
Specifications means the specifications of the Aimer System as described in the Materials.
Subscription means the subscription type as selected by the Customer.
Subscription Fee means Aimer’s subscription fees as applicable to the Aimer System which may include a calculation based on per hectare of the Farm Area, which may be updated from time to time both in terms of calculation methodology and specific amounts by Aimer notifying the Customer with at least 30 days’ notice in writing prior to the renewal of any Subscription Term. The Subscription Fees.
Subscription Term means the period of the subscription and all renewal terms having effect pursuant to clause 1.4.
Support means the Support set out in clause 1.14
Upgrades means any major upgrades to the Aimer System, including without limitation addition of new features or functionality, modules, upgrades and new versions, but excludes Maintenance.
Website means https://www.aimer-farming.com/
Working Days has the meaning set out in the Companies Act 1993, applicable for the Waikato region.
Working Hours are between the hours of 9am and 5pm on Working Days.

SUBSCRIPTION TERM
1.3 Subscription term: Subject to earlier termination, this Agreement will remain in effect for the Subscription Term.
1.4 Subscription renewal: Subject to earlier termination, the Subscription Term shall automatically, and without notice, renew and continue to renew unless a party notifies the other party in writing that the then current Subscription Term shall not renew at least 30 days prior to the then current expiry of the Subscription Term.

SUBSCRIPTION LICENSE
1.5 Subscription License: In consideration for the payment of the Subscription Fee, Aimer grants to the Customer, a worldwide, non-exclusive, non-transferable, license to use the Aimer System for the Purpose during the Subscription Term, subject to the terms and conditions set out in this Agreement.
1.6 Variation of Farm Area: Should the Customer require the Farm Area to be varied, the Customer shall contact Aimer to discuss the amendment to the Subscription License and the increase of the Subscription Fee based on Aimer’s per hectare pricing. Any variation shall at all times be at Aimer’s sole discretion.
1.7 Customer restrictions: Except as set out in this Agreement, the Customer agrees:
(a) not to rent, lease, lend, sell, redistribute or sublicense the Aimer System;
(b) not to copy, decompile, reverse engineer, disassemble, reproduce, translate, adapt, vary or modify, attempt to derive the source code of, decrypt, or create derivative works of the Aimer System;
(c) not to access or use the Aimer System for a purpose other than the Purpose, for anything other than the Customer’s internal business purposes, or in any manner other than as described in the Materials;
(d) not to grant access to, or otherwise make available, the Aimer System to any third party;
(e) ensure that any usernames, passwords, or other user credentials are only used by the Customer, are not shared by the Customer and are kept secure and confidential;
(f) not access any part of the Aimer System that the Customer is not permitted to access;
(g) not upload any data to the Aimer System that is, or links to any content that is, unlawful, hateful, abusive, defamatory, obscene, discriminatory, or malicious (including any executable code), or that incites the same; and
(h) not develop or use any software that works in conjunction with the Aimer System, for example a bot, screen scraper or similar, unless provided by Aimer.
1.8 Removal: Aimer may delete or quarantine any Data, or other data, uploaded to the Aimer System in breach of this Agreement, and Aimer will not be liable to the Customer for any such actions.
1.9 Data license: The Customer grants Aimer a worldwide, non-exclusive, royalty free license to use, modify, store, disclose and sublicense the Data, including any personal information, to the extent necessary to provide the Aimer System, comply with its obligations, and to enforce its rights, pursuant to this Agreement and as otherwise contemplated by this Agreement.
1.10 Notice: The Customer must immediately notify Aimer in writing if it becomes aware of any unauthorised use of the Aimer System or breach of this Agreement.

MAINTENANCE AND SUPPORT
1.11 Maintenance: Aimer may perform Maintenance on or to the Aimer System from time to time. Such Maintenance may alter the functionality or operation of the Aimer System. The Aimer System may be unavailable while Maintenance is being performed. All Maintenance undertaken on the Aimer System will be performed by Aimer or its service provider(s)/subcontractors. Aimer will use reasonable endeavours to:
(a) perform scheduled Maintenance on the System outside of Working Hours; and
(b) provide a reasonable period of notice to the Customer of any scheduled Maintenance required to be undertaken during Working Hours.
For the avoidance of doubt, Maintenance, whether scheduled or emergency, may be undertaken by Aimer at any time without notice.
1.12 Upgrades: Aimer may but is not obliged to offer Upgrades to the Customer from time to time. These Upgrades may be offered to the Customer as part of the Subscription Fee or any such Upgrade may be subject to the Customer’s payment of additional upgrade license fees and other terms and conditions.
1.13 Access: For the avoidance of doubt, the Customer is responsible to ensure a high speed, robust and reliable internet connection, with sufficient bandwidth, is available to connect to the Aimer System, at the Customer’s cost, and shall ensure that it is using hardware and internet browser software that is sufficient to comply with the Materials.
1.14 Support: Aimer will use reasonable endeavours to provide Support which can be accessed by the Customer by phone and email, during Working Hours, using the contact information set out on the Website.
1.15 Unauthorised System amendments: The Customer is not permitted to perform any maintenance, repairs or otherwise modify the Aimer System (Unauthorised System Amendments). If the Customer attempts any Unauthorised System Amendments, the warranty set out in clause 1.16(a) shall no longer apply, and repairs required to be carried out by Aimer shall be charged to the Customer. Aimer shall have no liability for any loss or corruption of the Aimer System or any Data, where Unauthorised System Amendments are carried out by any party other than Aimer or its nominated representative, or where such loss or corruption could have been avoided or corrected if the Customer had retained backup copies.

WARRANTIES
1.16 Limited warranty: Subject to clause 1.17 and subject to the Customer’s payment of all Subscription Fees and other amounts payable pursuant to this Agreement, Aimer warrants that:
(a) the Aimer System will operate materially in accordance with the Specifications for the Subscription Term; and
(b) the Materials will contain sufficient instruction and detail to enable the Customer to make reasonable use of the System during the Subscription Term.
1.17 Warranty exclusions: Aimer does not warrant that:
(a) any information, recommendations, measurements or advice obtained from the Aimer System is true, complete, correct or accurate or that it will provide any particular outcome for the Customer;
(b) the Aimer System is bug or error free. The existence of any bugs or errors will not constitute a breach of this Agreement;
(c) the Aimer System will be compatible with other software;
(d) any defects, whether notified or not, in the Aimer System will be corrected by Aimer;
(e) the Aimer System will always be available, or be uninterrupted;
(f) the Aimer System will be secure, or free from viruses or other malicious software; or
(g) the Aimer System will comply or continue to comply with applicable law.
1.18 Implied warranties: The Customer agrees that it is in trade and is entering into this Agreement for a business purpose, and the parties agree that:
(a) except as expressly set out in clause 1.16, the Aimer System, and any other goods and services provided by Aimer are supplied on an “as is” and “as available” basis, without any guarantee, warranty, condition or representations (whether express, implied by law, statute, trade custom or otherwise) including without limitation in relation to quality, that any particular  outcome will be achieved, merchantability, suitability or fitness for a particular purpose, ownership, title, non-infringement, or otherwise;
(b) the Customer acknowledges that by entering into this Agreement, it is relying on its own expertise, skill and judgement and that it is not relying on the expertise, skill, judgement or pre-contractual representation of Aimer; and
(c) the implied terms, guarantees, covenants, and conditions in the Consumer Guarantees Act 1993 and sections 9, 12A, 13 and 14(1) of the Fair Trading Act 1993, do not apply, and are excluded to the fullest extent permitted by applicable law.

SYSTEM AND DATA LOCATION, DISASTER RECOVERY AND BACKUP
1.19 Security: Aimer will implement IT security measures regarding the Aimer System and the Data that are substantially in accordance with industry standard practice
1.20 Backup policy: Aimer will use reasonable endeavours to backup  data, however, Aimer provides no guarantee that the data will be backed up or retrievable. The Customer shall be responsible for the backup of any Data.
1.21 Disaster Recovery: Aimer will use reasonable endeavours to ensure any third party hosting the Aimer System and Data have robust disaster recovery and business continuity processes in place.  
1.22 System location: The Aimer System, may be hosted, leased or otherwise made available for use, by Aimer, and may be located anywhere in the world, as determined by Aimer from time to time.

INTELLECTUAL PROPERTY
1.23 System Ownership: The parties agree that all Intellectual Property rights in and to the Aimer System and Materials remain owned by Aimer and its licensors.
1.24 Data ownership: The parties agree that the Customer owns all of the Data.
1.25 Restrictions: The Customer shall not, except with Aimer’s prior written consent:
(a) use, modify or otherwise alter Aimer’s Intellectual Property, except as expressly set out in this Agreement;
(b) tamper with or remove any markings, patent numbers or other indication of the source of origin of Aimer System placed on the Aimer System; or
(c) damage or otherwise endanger Aimer’s Intellectual Property rights.
1.26 Infringement: The Customer agrees:
(a) not to cause or permit anything that may damage or endanger Aimer’s, or its licensors’, Intellectual Property, or ownership thereof;
(b) to notify Aimer of any suspected infringement of Aimer’s, or its licensors’, Intellectual Property;
(c) to take such reasonable action as Aimer may direct at the expense of Aimer in relation to such infringement;
(d) to compensate Aimer for any use of Aimer’s, or its licensors’, Intellectual Property by the Customer or any person associated with the Customer or by any person through the instrumentality of the Customer otherwise than in accordance with this Agreement; and
(e) not to use Aimer’s, or its licensors’, Intellectual Property otherwise than as permitted by this Agreement.
1.27 Indemnity: The Customer shall defend, indemnify and hold Aimer harmless from any and all liabilities, costs (including full costs between solicitor and Customer), claims and demands, made by any third party, arising out of or incidental to an allegation that the Data, or its incorporation or use within the Aimer System, misappropriates or infringes a third party’s intellectual property or privacy rights.

LICENCE FEES AND ADJUSTMENTS
1.28 Invoicing: Aimer will invoice the Customer for the Subscription Fee in advance on a monthly basis or annual basis (as selected by the Customer) during the Subscription Term.
1.29 Payment of Subscription: Where the Customer has selected monthly payments the Customer shall pay each invoice on the 1st of the month in advance. Where the Customer has selected the annual payment option the Customer shall pay the invoice on or before the Commencement Date and each yearly anniversary of the Commencement Date for the Subscription Term.  All payments shall be in cleared funds without deduction or setoff to Aimer’s nominated bank account.
1.30 GST: All Subscription Fees and other amounts payable pursuant to this Agreement are stated exclusive of GST. Where applicable, GST will be added to all Subscription Fees invoiced.
1.31 Disputed invoices: Notwithstanding clause 1.29, if the Customer disputes any invoice, whether in full or in part, issued by Aimer, the Customer shall pay any undisputed portion, and notify Aimer as to the nature of the dispute regarding the balance. If the parties cannot reach resolution within 10 Working Days, either party may refer the matter for resolution pursuant to clause 0.
1.32 Default: If the Customer fails to pay any amounts pursuant to this Agreement on or prior to the due date, or is otherwise in breach of this Agreement, Aimer may, in its sole discretion, without prejudice to and in addition to any other rights and remedies, do any one or more of the following:
(a) suspend the Customer’s access to, and delivery of, the Aimer System (with the effect that the Customer’s licences and other rights set out in clause 1.5 are suspended), cancel any order, and/or terminate (in whole or in part) this Agreement by providing notice to the Customer;
(b) charge interest at a rate of 1.5% per month on all amounts due but unpaid, calculated on a daily basis from the due date until Aimer receives payment in full including any interest so charged;
(c) sue for infringement of Aimer’s Intellectual Property rights as a result of unlicensed use of the Aimer System; and/or
(d) take legal action to recover the amounts owing, appoint a collections agent, receiver or other third party to collect the amounts owing,
and all costs and expenses associated with such (including legal costs as between solicitor and Customer), shall be paid by the Customer in addition to any amount owing.
1.33 Non-refundable fees: Except where expressly specified in this Agreement, or as agreed by Aimer in writing, any Subscription Fees paid to Aimer are non-refundable, including without limitation on termination or expiry of this Agreement.

CONFIDENTIALITY AND PRIVACY
1.34 Confidentiality: All Intellectual Property, Data and other information belonging to the parties (including but not limited to, the Aimer System and its operation and the Materials) which by designation or by its nature is intended to be treated as confidential will be confidential information for the purposes of this Agreement (Confidential Information).
1.35 Disclosure: No party will, without the prior written consent of the other party, make use of or disclose any Confidential Information to any third party, except:
(a) to the extent necessary for Aimer to perform its obligations pursuant to this Agreement, including without limitation, disclosure to service providers, subcontractors, licensors, contractors and personnel;
(b) to the extent contemplated by this Agreement; or
(c) as required pursuant to law or a Court of competent jurisdiction.
1.36 Personal information: The Customer agrees that Aimer may collect and store personal information in accordance with Aimer’s Privacy Policy and the Privacy Act 2020.
1.37 Electronic messages: The Customer consents to receive electronic messages from Aimer that relate to this Agreement, goods and services offered by Aimer, direct marketing, credit checks and debt collection. The Customer may opt out of receiving electronic commercial messages by notifying Aimer in writing, or utilising any unsubscribe facility.   
1.38 Survival: The obligations set out in this clause 0 survive the expiry or the termination of this Agreement.

LIABILITY
1.39 Exclusion: Excluding the indemnity at clause 1.27, neither party shall be liable to the other party for any indirect loss, consequential loss, loss of profit, loss of bargain, loss of sales or turnover, loss of business opportunity, or exemplary damages suffered by the other party or any third party, whether resulting from any prior misrepresentation, breach of this Agreement, or other dispute arising out of this Agreement, whether contemplated by this Agreement or not, and whether actionable in contract, tort (including negligence), equity or otherwise.
1.40 Data: Without limiting clause 1.39, Aimer shall not in any circumstance be liable for any loss of Data, any other data, or be liable for any loss, cost, expense or damage suffered or incurred by the Customer as a result of loss or reconstitution of Data or any other data, whether caused by any defect, malfunction or non-performance of the Aimer System, or otherwise.
1.41 Indemnity: Subject to clause 1.39, the Customer shall indemnify Aimer in respect of all liabilities, costs (including full costs between solicitor and Customer), claims or demands made by any third party, arising out of or incidental to the Customer’s breach of this Agreement.
1.42 Liability cap: In the event that, notwithstanding clause 1.39, Aimer is found liable for any damages, loss or liability in connection with this Agreement, such damages, loss and liability will, in aggregate, be limited to the Subscription Fee paid by the Customer in the first twelve months of the Subscription Term.

DEFAULT AND TERMINATION
1.43 Termination without cause: Either party may terminate this Agreement without cause, by providing thirty (30) days’ notice in writing to the other party.
1.44 Termination with cause: A party may immediately terminate this Agreement by providing notice in writing to the other party if:
(a) the other party commits a material breach of this Agreement that is capable of remedy, and such breach is not remedied to the satisfaction of the notifying party within 30 days of receipt by the breaching party of written notice of such breach from the notifying party;
(b) the other party commits a material breach of this Agreement, which is not reasonably capable of remedy; or
(c) the other party enters into bankruptcy, administration, receivership or liquidation, has a statutory manager appointed, reasonably appears to be insolvent or is unable to pay its due debts.
1.45 Effect of expiry or termination: Termination of this Agreement shall be without prejudice to any rights and/or obligations of the parties existing at the time of termination. Upon the termination or expiry of this Agreement:
(a) Aimer shall immediately terminate the Customer’s access to the Aimer System, and the Customer shall immediately cease use of the Aimer System. For the avoidance of doubt, the licences and rights set out in clause 0 shall not survive termination or expiry;
(b) all rights of the Customer to use the Materials, and Aimer’s (and its licensors) Intellectual Property rights shall immediately cease;
(c) the Customer shall immediately pay all outstanding monies due and payable, including without limitation pursuant to any Final Invoice;
(d) each party shall return any property in its possession or control that is owned by the other party to the other party;
(e) Aimer shall make the Data available for collection or download by the Customer, for a period of 30 days after the termination or expiry date, and after such date, Aimer shall be permitted to permanently delete the Data;
(f) subject to subclause (e) above, each party will cease to use any other party’s Intellectual Property and Confidential Information; and
(g) subject to subclause (e) above, each party shall permanently destroy any electronic copies of the other party’s Intellectual Property or Confidential Information, except those that have been previously captured by an automatic electronic back up system that is generally inaccessible to that party’s personnel or as are required to be retained for statutory or compliance purposes.  

DISPUTE RESOLUTION
1.46 In the event of any dispute between the parties in relation to this Agreement, the parties shall first seek to resolve such dispute by promptly giving notice of the dispute to the other party and co-operatively endeavouring to resolve such dispute. If the dispute remains unresolved the parties may then seek a resolution through the use of mediation prior to seeking resolution through the Courts. The parties acknowledge that an actual or threatened breach of this Agreement may cause damage to the other that is unable to be adequately compensated for by monetary damages. In such circumstances a party may seek urgent injunctive relief from the Court, without the requirement to progress mediation first.

MISCELLANEOUS
1.47 Variation: Except as expressly set out in this Agreement, any modification to or variation of this Agreement must be in writing and signed by each party.
1.48 Survival: Clauses 0 and 0 shall survive termination or expiry this Agreement.
1.49 Notices: Notices, communication documents or demands required to be made or served pursuant to this Agreement shall be in writing signed by the party giving the notice.  Any notice or document shall be deemed to be duly given or made if delivered by hand, when so delivered; if sent by post, on the third working day following posting; if communicated by email, when transmitted with no indication of incomplete to the recipient's last known facsimile number and/or email address.
1.50 Relationship: This Agreement does not create a joint venture, partnership, agency, or employer/employee relationship between the parties.
1.51 Force majeure: No failure or omission by any party to carry out or observe this Agreement will be deemed a breach of this Agreement if such failure or omission arises from any cause reasonably beyond the control of a party.
1.52 Assignment: The Customer shall not assign, novate or otherwise transfer their rights or obligations pursuant to this Agreement, without the prior written consent of Aimer. Aimer may assign, novate, or otherwise transfer their rights and/or obligations pursuant to this Agreement, without any requirement to obtain consent from, or give notice to the Customer.
1.53 Governing law: This Agreement shall be governed and interpreted in accordance with New Zealand law, and subject to clause 0 any dispute arising out of the subject matter of this Agreement shall be determined by the New Zealand courts.
1.54 Entire Agreement: This Agreement constitutes the entire agreement and understanding between the parties and supersedes all prior discussions and agreements covering the subject matter of this Agreement.

AIMER Satellite
1.55 Frequency of satellite pasture measurements: For the AIMER Satellite subscription, availability of satellite-based pasture measurements is affected by weather conditions and satellite positioning.  Aimer makes no representation as to how frequently you will receive satellite-based pasture measurements as this is subject to the satellite capturing a clear image of your farm.