1. APPLICATION OF TERMS
1.1 These Terms apply to your use of AirShare (as that term is defined below). By accessing and using AirShare:
- 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 AirShare, and you must immediately stop doing so.
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. Unless stated otherwise, any change takes effect from the date set out in the notice. You are responsible for ensuring you are familiar with the latest Terms. By continuing to access and use AirShare from the date on which the Terms are changed, you agree to be bound by the changed Terms.
2.2 These Terms were last updated on 20 May 2019.
In these Terms:
AirShare means the service having the core functionality described on the Website, as the Website is updated from time to time.
AirShare Software means the software owned by us (and our licensors) that is used to provide AirShare.
Airways means Airways Corporation of New Zealand Limited.
Authority Rights means special rights to access and use AirShare that apply to territorial local authorities or public safety agencies, such as Fire and Emergency New Zealand.
Authority User means a user of AirShare with Authority Rights as allocated by us.
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 AirShare. Our Confidential Information includes Intellectual Property owned by us (or our licensors), including the AirShare 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, AirShare.
Fees means the applicable fees (if any) (including the MarketPlace subscription fees) set out on our pricing page on the Website at https://www.airshare.co.nz/list-airshare-marketplace or as agreed otherwise in writing between you and us, as may be updated from time to time in accordance with clause 9.6.
Force Majeure means an event that is beyond the reasonable control of a party, excluding:
- an event to the extent that it could have been avoided by a party taking reasonable steps or reasonable care; or
- a lack of funds for any reason.
including and similar words do not imply any limit.
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.
MarketPlace means the marketplace for businesses made available on the Website as part of AirShare.
Objectionable includes being objectionable, defamatory, obscene, harassing, threatening, harmful, or unlawful in any way.
a party includes that party’s permitted assigns.
a person includes an individual, a body corporate, an association of persons (whether corporate or not), a trust, a government department, or any other entity.
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.
Privacy Statement means our privacy statement available at www.airshare.co.nz as amended from time to time.
Start Date means the date that you first access or use AirShare.
Underlying Systems means the AirShare Software, IT solutions, systems and networks (including software and hardware) used to provide AirShare, including any third party solutions, systems and networks.
We, us or our means AirShare Limited, New Zealand company number 7131274.
Website means the internet site at www.airshare.co.nz, or such other site notified to you by us.
Year means a 12-month period starting on the Start Date or the anniversary of that date.
You or your means you or, if clause 1.1b applies, both you and the other person on whose behalf you are acting.
Words in the singular include the plural and vice versa.
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 AIRSHARE
4.1 AirShare is provided at your risk, and we shall have no liability for any loss, liability, actions, proceedings, costs, expenses, claims and damages incurred or suffered by you arising from your access to, use of, and/or reliance on AirShare and/or the Website and/or any Data.
4.2 Our provision of AirShare to you is non-exclusive. Nothing in these Terms prevents us from providing AirShare to any other person.
4.3 Subject to clause 4.4, we must use reasonable efforts to ensure AirShare is available during normal business hours in New Zealand, typically 8am to 5pm (New Zealand time) on days other than Saturdays, Sundays and public holidays. However, it is possible that on occasion AirShare may be unavailable to permit maintenance or other development activity to take place, or in the event of Force Majeure. We must use reasonable efforts to publish on the Website or notify you by email advance details of any unavailability.
4.4 Through the use of web services and APIs, AirShare 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.
4.5 We may issue and you must comply immediately and to the best of your ability with any direction we consider necessary to ensure public safety.
4.6 All user submitted content is deemed to be provided to AirShare on a non-confidential basis. If you post content to AirShare, you understand and agree that we may publish your content in its entirety, as an edited version, or not at all, in our sole discretion. We may remove, alter, or otherwise edit content that we deem inappropriate for any reason, in our sole discretion. Without limiting the foregoing, we reserve the right, but are not obligated, to monitor all submissions to AirShare and exercise editorial control over all such submissions, including the right to edit, not publish, take down or remove any content. We are not responsible or liable for any failure to monitor, review, edit and/or delete any content submitted to AirShare in any way. If you would like to make a complaint or have any questions about user submitted content then please contact us at: firstname.lastname@example.org
5. YOUR OBLIGATIONS
5.1 You and your personnel must:
- a. use AirShare in accordance with these Terms solely for:
- i. your own internal business or personal and domestic purposes as applicable;
- ii. lawful purposes, including complying with all applicable Civil Aviation Rules;
- b. not resell or make available AirShare to any third party, or otherwise commercially exploit AirShare; and
- c. comply with all applicable laws including local authority by-laws and Civil Aviation Rules when operating any unmanned aerial vehicle, an unmanned aerial system, a drone or a remotely piloted aircraft system.
5.2 You acknowledge that:
- a. your access to, use of, and/or reliance on AirShare and/or the Website and/or any Data is at your own risk;
- b. any positions of other aircraft or other unmanned aerial vehicles is provided for information purposes only and is not to be relied upon as a complete and accurate representation of other aircraft positions. At all times, it is your responsibility to ensure you maintain observation of the surrounding airspace in which your aircraft is operating for other aircraft;
- c. you must undertake your own checks of the airspace in which your aircraft is operating, and that any data, content, and/or information provided by AirShare is not to be relied upon as definitively capturing all potential hazards or other matters that could impact on the safety of your aircraft’s flight path. We do not assume any responsibility or liability for any health and safety matters arising from your use of aircraft.
5.3 When accessing AirShare, you and your personnel must:
- a. if you are an Authority User, comply with our reasonable requirements issued from time to time relating to Authority Rights;
- b. comply with any code of conduct we issue from time to time for AirShare;
- c. not exercise or attempt to exercise Authority Rights unless you are an Authority User;
- d. not impersonate another person or misrepresent authorisation to act on behalf of others or us;
- e. correctly identify the sender of all electronic transmissions;
- f. not attempt to undermine the security or integrity of the Underlying Systems;
- g. not use, or misuse, AirShare in any way which may impair the functionality of the Underlying Systems or impair the ability of any other user to use AirShare;
- h. not attempt to view, access or copy any material or data other than:
- i. that which you are authorised to access; and
- ii. to the extent necessary for you to use AirShare in accordance with these Terms; and
- i. neither use AirShare in a manner, nor transmit, input or store any Data (including user generated content), that breaches any third party right (including Intellectual Property Rights and privacy rights) or is Objectionable, incorrect or misleading.
5.4 A breach of any of these Terms by your personnel is deemed to be a breach of these Terms by you.
5.5 You are responsible for procuring all licences, authorisations and consents required for you and your personnel to use AirShare, including to use, store and input Data into, and process and distribute Data through, AirShare.
5.6 You must hold at all times adequate insurance cover for the activities you carry out in connection with AirShare or these Terms (including any Trial). You must promptly provide us with proof of such insurance if we ask for it. You are solely liable for determining the level of insurance cover you establish and maintain under this clause.
6. TRIAL TERMS
6.1 If we are making AirShare available to you on a trial basis (this will be indicated on the Website) (Trial), the following additional terms apply despite anything else to the contrary in these Terms:
- a. we will carry out the Trial in a fair and transparent manner and we will not favour on participant over another;
- b. we may change, suspend, discontinue, or restrict access to, the Trial or AirShare without notice or liability;
- c. we provide no warranties or guarantees whatsoever relating to the Trial or AirShare as part of the Trial;
- d. neither party is obliged to provide feedback on the Trial to the other. However, if one party provides feedback on the Trial to the other (the Recipient), the Recipient may use the feedback in any way (including for commercial purposes) without further permission and without paying any form of compensation;
- e. you agree we may share with the Civil Aviation Authority any information we receive from you relating to AirShare or the Trial, or that arises from the conduct or assessment of the Trial or AirShare;
- f. neither party commits to proceeding with any project, initiative or arrangement after or beyond the scope of the Trial;
- g. if we decide to operationalise the subject matter of the Trial, the parties each acknowledge that your participation in the Trial does not commit either party to work with the other, whether as part of operationalising the Trial or otherwise; and
- h. either party may terminate these Terms or your participation in the Trial at any time by written notice to the other.
7.1 Our provision of MarketPlace for your use is governed by these Terms and Conditions. MarketPlace is not an ‘Airways service’ within the meaning of that term in our Standard Terms and Conditions for the Provision of Airways Services. When you subscribe to MarketPlace on the Website, the following additional terms and conditions apply:
7.2 The subscription fee payable by you for listing your business on MarketPlace is an annual fee and will be confirmed to you when you subscribe (subscription fee). The subscription fee is in New Zealand dollars and excludes GST.
7.3 The subscription fee entitles you to 12 months’ subscription for MarketPlace from the date of your payment of the subscription fee, meaning your listing will be displayed on MarketPlace for 12 months from payment of that fee (subscription period).
7.4 Your subscription to MarketPlace will expire at the end of your subscription period and your listing will be automatically removed from MarketPlace. If you wish to maintain your listing on MarketPlace, it is your responsibility to ensure you renew your subscription.
7.5 We can change the subscription fee at any time and will give 30 days’ notice before we do that. Where you have already paid the subscription fee, any change will become effective if you renew your subscription at the commencement of the next subscription period.
7.6 You may only post listings for businesses that provide UAV related products or services.
7.7 You may remove your listing from MarketPlace at any time. In such a case, we will not refund the subscription fee and should you subsequently wish to re-list your business with MarketPlace, a new subscription fee will be payable.
7.8 Without limiting our other rights and remedies, we may stop or hold your subscription to MarketPlace with immediate effect and without liability for any reason including where you breach these terms and conditions. Unless we have stopped your subscription because you have breached these terms and conditions, we may at our discretion provide you with a pro-rata refund of any subscription fee paid in advance.
7.9 You may upgrade your subscription at any time from a “Standard” subscription to a “Premium” subscription. Upgrading from a “Standard” subscription to a “Premium” subscription will extend your subscription for a full subscription period (12 months) from the date of your payment of the new subscription fee. The new subscription fee payable will be for a “Premium” subscription but you will be credited for the remaining period of your “Standard” subscription. Credits will be calculated and credited on a calendar month basis.
7.10 You may add additional categories to your MarketPlace subscription at any time. Additional categories will apply to your subscription from the date of your payment of the additional fee for those categories until the expiry of your then current subscription period. Fees for additional categories will be calculated on a pro-rata basis according to the number of months remaining on your subscription.
8.1 You acknowledge that:
- a. we may require access to the Data to exercise our rights and perform our obligations under these Terms; and
- b. to the extent that this is necessary but subject to clause 11, we may authorise a member or members of our personnel to access the Data for this purpose.
8.2 You must arrange all consents and approvals that are necessary for us to access the Data as described in clause 8.1.
8.3 You acknowledge and agree that:
- a. we may:
- i. use Data and information about your and your end users’ use of AirShare to generate anonymised and aggregated statistical and analytical data (Analytical Data); and
- ii. use Analytical Data for our internal research and product development purposes and to conduct statistical analysis and identify trends and insights;
- b. our rights under clause 8.3a above will survive termination of expiry of these Terms; and
- c. title to, and all Intellectual Property Rights in, Analytical Data is and remains our property.
8.4 You acknowledge and agree that to the extent Data contains personal information, in collecting, holding and processing that information through AirShare, we are acting as your agent for the purposes of the Privacy Act 1993 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.
8.5 When dealing with personal information we will comply with the Privacy Statement and the Privacy Act 1993.
8.6 While we will take standard industry measures to back up all Data stored using AirShare, you agree to keep a separate back-up copy of all Data uploaded by you onto AirShare.
8.7 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.
9.1 You must pay us the Fees (if any).
9.2 We will provide you with valid GST tax invoices on a monthly basis prior to the due date for payment.
9.3 The Fees exclude GST, which you must pay on taxable supplies.
9.4 You must pay the Fees:
- a. by the 20th of the month following the date of invoice; and
- b. electronically in cleared funds without any set off or deduction.
9.5 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.
9.6 We may increase the Fees by giving at least 30 days’ notice. If you do not wish to pay the increased Fees, you may terminate these Terms and your right to access and use AirShare on no less than 10 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 AirShare in accordance with this clause, you are deemed to have accepted the increased Fees.
10. INTELLECTUAL PROPERTY
10.1 Subject to clause 10.2, title to, and all Intellectual Property Rights in, AirShare, 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.
10.2 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.
10.3 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 AirShare.
10.4 If you provide us with ideas, comments or suggestions relating to AirShare or Underlying Systems (together feedback):
- 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
- b. we may use or disclose the feedback for any purpose.
10.5 You acknowledge that AirShare may link to third party websites or feeds that are connected or relevant to AirShare. Any link from AirShare does not imply that we endorse, approve or recommend, or have responsibility for, those websites or feeds or their content or operators. To the maximum extent permitted by law, we exclude all responsibility or liability for those websites or feeds.
11.1 Each party must, unless it has the prior written consent of the other party:
- a. keep confidential at all times the Confidential Information of the other party;
- b. effect and maintain adequate security measures to safeguard the other party’s Confidential Information from unauthorised access or use; and
- 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 11.1a and 11.1b.
11.2 The obligation of confidentiality in clause 11.1 does not apply to any disclosure or use of Confidential Information:
- a. for the purpose of performing a party’s obligations, or exercising a party’s rights, under these Terms;
- b. required by law (including under the Official Information Act 1982 or the rules of any stock exchange);
- c. which is publicly available through no fault of the recipient of the Confidential Information or its personnel; or
- d. which was rightfully received by a party from a third party without restriction and without breach of any obligation of confidentiality.
12.1 Each party warrants that it has full power and authority to enter into, and perform its obligations under, these Terms.
12.2 To the maximum extent permitted by law:
- a. 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 NZD$1.00; and
- b. we make no representation concerning the quality of AirShare and do not promise that AirShare will:
- i. meet your requirements or be suitable for a particular purpose, including that the use of AirShare will fulfil or meet any statutory role or responsibility you may have; or
- ii. be secure, free of viruses or other harmful code, uninterrupted or error free.
12.3 You agree and represent that you are acquiring AirShare, and accepting these Terms, for the purpose of trade. The parties agree that:
- 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 AirShare or these Terms; and
- b. it is fair and reasonable that the parties are bound by this clause 12.3.
12.4 Where legislation or rule of law implies into these Terms a condition or warranty that cannot be excluded or modified by contract, the condition or warranty is deemed to be included in these Terms. However, our liability for any breach of that condition or warranty is limited, at our option, to:
- a. supplying AirShare again; and/or
- b. paying the costs of having AirShare supplied again.
13.1 Our maximum aggregate liability under or in connection with these Terms or relating to AirShare, whether in contract, tort (including negligence), breach of statutory duty or otherwise, shall not exceed NZD$1.00. The cap in this clause 13.1 includes the cap set out in clause 12.2a.
13.2 Neither party is liable to the other under or in connection with these Terms or AirShare for any:
- a. loss of profit, revenue, savings, business, use, data (including Data), and/or goodwill; or
- b. consequential, indirect, incidental or special damage or loss of any kind.
13.3 Clauses 13.1 and 13.2 do not apply to limit our liability under or in connection with these Terms for:
- a. fraud or wilful misconduct; or
- b. a breach of clause 11.
13.4 Clause 13.2 does not apply to limit your liability:
- a. to pay the Fees;
- b. under the indemnities in clauses 8.7 or 13.5; or
- c. for personal injury or death;
- d. for fraud or wilful misconduct; or
- e. for a breach of clause 11.
13.5 You indemnify and hold us (including our subsidiary companies, officers, employees and agents) harmless and keep us indemnified, from and against all loss, liability, actions, proceedings, costs, expenses (including legal fees), claims and damages incurred or suffered by us arising from your access to and/or use of AirShare and/or the Website, and/or breach of these Terms.
13.6 Neither party will be responsible, liable, or held to be in breach of these Terms for any failure to perform its obligations under these Terms or otherwise, to the extent that the failure is caused by the other party failing to comply with its obligations under these Terms, or by the negligence or misconduct of the other party or its personnel.
13.7 Each party must take reasonable steps to mitigate any loss or damage, cost or expense it may suffer or incur arising out of anything done or not done by the other party under or in connection with these Terms or AirShare.
14. TERM, TERMINATION AND SUSPENSION
14.1 Unless terminated under this clause 14, these Terms and your right to access and use AirShare:
- a. starts on the Start Date; and
- b. continues until a party gives at least 30 days’ notice that these Terms and your access to and use of AirShare will terminate on the expiry of that notice.
14.2 Either party may, by notice to the other party, immediately terminate these Terms and your right to access and use AirShare if the other party:
- a. breaches any material provision of these Terms and the breach is not:
- i. remedied within 10 days of the receipt of a notice from the first party requiring it to remedy the breach; or
- ii. capable of being remedied; or
- b. becomes insolvent, liquidated or bankrupt, has an administrator, receiver, liquidator, statutory manager, mortgagee’s or chargee’s agent appointed, becomes subject to any form of insolvency action or external administration, or ceases to continue business for any reason.
14.3 You may terminate these Terms and your right to access and use AirShare in accordance with clause 9.6.
14.4 Termination of these Terms does not affect either party’s rights and obligations that accrued before that termination.
14.5 On termination of these Terms, you must pay all Fees for the provision of AirShare prior to that termination.
14.6 No compensation is payable by us to you as a result of termination of these Terms for whatever reason, and you will not be entitled to a refund of any Fees that you have already paid.
14.7 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 14.8, 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.
14.8 At any time prior to one month after the date of termination, you may request:
- a. a copy of any Data stored using AirShare, 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; and/or
- b. deletion of the Data stored using AirShare, in which case we must use reasonable efforts to promptly delete that Data.
To avoid doubt, we are not required to comply with clause 14.8a to the extent that you have previously requested deletion of the Data.
14.9 Without limiting any other right or remedy available to us, we may restrict or suspend your access to and use of AirShare and/or delete, edit or remove the relevant Data if we consider that you or any of your personnel have:
- a. undermined, or attempted to undermine, the security or integrity of AirShare or any Underlying Systems;
- b. used, or attempted to use, AirShare:
- i. for improper purposes; or
- ii. in a manner, other than for normal operational purposes, that materially reduces the operational performance of AirShare;
- 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
- d. otherwise materially breached these Terms.
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 8.4, 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 email@example.com.
15.6 These Terms, and any dispute relating to these Terms or AirShare, 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 or AirShare.
15.7 Clauses which, by their nature, are intended to survive termination of these Terms, including clauses 4.1, 8.7, 10, 11, 13, 14.4 to 14.8 and 15.6, 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 9.6, 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 AirShare, and supersede and cancel anything discussed, exchanged or agreed prior to the Start Date. The parties have not relied on any representation, warranty or agreement relating to AirShare 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 the previous sentence, 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 15.10.
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 despite any approved assignment, subcontracting or transfer.
For the avoidance of doubt, Airways’ standard terms continue to apply to certain activities (for example, aeronautical activities in controlled airspace). You agree that nothing in these Terms affects the application to you of those standard terms and that you must comply with those standard terms as applicable.