Terms & Conditions of Trade
1. Definitions
1.1 “Contract” means the terms and conditions contained herein, together with any quotation, order, invoice or other document or amendments expressed to be supplemental to this Contract.
1.2 “Cookies” means small files which are stored on a user’s computer. They are designed to hold a modest amount of data (including Personal Information) specific to a particular client and website and can be accessed either by the web server or the client’s computer. If the Customer does not wish to allow Cookies to operate in the background when using the Service Provider’s website, then the Customer shall have the right to enable / disable the Cookies first by selecting the option to enable / disable provided on the website, prior to making enquiries via the website.
1.3 “Customer” means the person/s, entities or any person acting on behalf of and with the authority of the Customer requesting the Service Provider to provide the Works as specified in any proposal, quotation, order, invoice, or other documentation, and:
a) if there is more than one Customer, is a reference to each Customer jointly and severally;
b)and if the Customer is a partnership, it shall bind each partner jointly and severally;
c)and if the Customer is a part of a Trust, shall be bound in their capacity as a trustee;
d)and includes the Customer’s executors, administrators, successors and permitted assigns.
1.4 “Intended Use” means a product and the use thereof, for which the product is intended to be, or is reasonably likely to be, associated with the Works.
1.5 “Non-Conforming Building Product” means building products that are regarded as Non-Conforming for an Intended Use if, when associated with a building:
a)the product is not, or will not be, safe; or
b) does not, or will not, comply with the relevant regulatory provisions;
c) or the product does not perform, or is not capable of performing, for the use to the standard it is represented to conform by or for a person in the chain of responsibility for the product.
1.6 “Price” means the Price payable (plus any Goods and Services Tax (“GST”) where applicable) for the Works as agreed between the Service Provider and the Customer in accordance with clause 5 below.
1.7 “Service Provider” means Lawn & Turf Contracting Limited, its successors and assigns.
1.8 “Works” means all Works (including consultation, manufacturing and/or installation services) or Materials supplied by the Service Provider to the Customer at the Customer’s request from time to time (where the context so permits the terms ‘Works’ or ‘Materials’ shall be interchangeable for the other).
1.9 “Worksite” means the address nominated by the Customer to which the Materials are to be supplied by the Service Provider.
2. Acceptance
2.1 The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for or accepts delivery of any Works.
2.2 In the event of any inconsistency between the terms and conditions of this Contract and any other prior document or schedule that the parties have entered into, the terms of this Contract shall prevail.
2.3 Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.
2.4 The Customer acknowledges that the supply of Works on credit shall not take effect until the Customer has completed a credit application with the Service Provider and it has been approved with a credit limit established for the account.
2.5 In the event that the supply of Works requested exceeds the Customer’s credit limit and/or the account exceeds the payment terms, the Service Provider reserves the right to refuse delivery.
2.6 Any advice, recommendation, information, assistance, aftercare instructions for lawns or services provided by the Service Provider in relation to Materials or Works supplied is given in good faith to the Customer, or the Customer’s agent and is based on the Service Provider’s own knowledge and experience and shall be accepted without liability on the part of the Service Provider.
Where such advice or recommendations are not acted upon then the Service Provider shall require the Customer or their agent to authorise commencement of the Works in writing. The Service Provider shall not be liable in any way whatsoever for any damages or losses that occur after any subsequent commencement of the Works.
2.7 Where the Customer requesting or organising the Service Provider to provide the Works is acting on behalf of any third party (including, but not limited to, multiple property owners and/or contributors to any driveway, fence, retaining wall), and that third party is intended to be responsible for either the full or partial payment of the Price, then in the event that third party does not pay for the Works when due, the Customer acknowledges that they shall be liable for the full payment of the Price as if they had contracted the Works on their own behalf.
2.8 The Customer acknowledges and agrees that in the event the Service Provider requires access in order to undertake the Works to an adjoining or adjacent property or land to the nominated Worksite, that is not owned by the Customer, then it is the Customer’s responsibility to gain permission from the landowner to use the above-mentioned property throughout the process or delivering the Works. In the event the landowner denies access or use of the land or property, the Customer shall be liable for all costs incurred by the Service Provider in gaining permission to access and/or use the property through any legal process that may be deemed necessary.
2.9 These terms and conditions may be meant to be read in conjunction with the Service Provider’s Hire Form, and where the context so permits, the terms ‘Works’ or ‘Materials’ shall include any supply of Equipment, as defined therein.
2.10 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 226 of the Contract and Commercial Law Act 2017 or any other applicable provisions of that Act or any Regulations referred to in that Act.
3. Errors and Omissions
3.1 The Customer acknowledges and accepts that the Service Provider shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
a) resulting from an inadvertent mistake made by the Service Provider in the formation and/or administration of this Contract; and/or
b) contained in/omitted from any literature (hard copy and/or electronic) supplied by the Service Provider in respect of the Works.
3.2 In the event such an error and/or omission occurs in accordance with clause 3.1, and is not attributable to the negligence and/or wilful misconduct of the Service Provider; the Customer shall not be entitled to treat this Contract as repudiated nor render it invalid.
4. Change in Control
4.1 The Customer shall give the Service Provider not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s name, address, contact phone or fax number/s, change of trustees, or business practice). The Customer shall be liable for any loss incurred by the Service Provider as a result of the Customer’s failure to comply with this clause.
5. Price and Payment
5.1 At the Service Provider’s sole discretion, the Price shall be either:
a) as indicated on invoices provided by the Service Provider to the Customer in respect of Works performed or Materials supplied; or
b) the Service Provider’s quoted Price (subject to clause 5.2) which shall be binding upon the Service Provider provided that the Customer shall accept the Service Provider’s quotation in writing within thirty (30) days.
5.2 The Service Provider reserves the right to change the Price:
a) if a variation to the Materials which are to be supplied is requested; or
b) if a variation to the Works originally scheduled (including any applicable plans or specifications) is requested; or
c) where additional Works are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, poor weather, limitations to accessing the Worksite, variation in time frames, obscured Worksite defects which require remedial work, incorrect measurements, plans and/or specifications provided by the Customer, as a result of delays from third party Service Providers, availability of machinery, safety considerations/ health hazards (such as the discovery of asbestos or other foreign materials), prerequisite work by any third party not being completed, lack of required utilities, remedial work required due to existing workmanship being of a poor quality or non-compliant to the building code, hard rock barriers below the surface, latent soil conditions, iron reinforcing rods in concrete or hidden pipes, wiring and cabling, etc.) which are only discovered on commencement of the Works; or
d) in the event of increases to the Service Provider in the cost of labour or Materials which are beyond the Service Provider’s control.
5.3 Variations will be charged for on the basis of the Service Provider’s quotation, and will be detailed in writing, and shown as variations on the Service Provider’s invoice. The Customer shall be required to respond to any variation submitted by the Service Provider within ten (10) working days. Failure to do so will entitle the Service Provider to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion.
5.4 At the Service Provider’s sole discretion, a deposit of fifty percent (50%) may be required or payment of the cost of Materials in advance.
5.5 Time for payment for the Works being of the essence, the Price will be payable by the Customer on the date/s determined by the Service Provider, which may be:
a) on completion of the Works;
b)by way of progress payments in accordance with the Service Provider’s specified progress payment schedule. Such progress payment claims may include the reasonable value of authorised variations and the value of any Materials delivered to the Worksite but not yet installed;
c) for certain approved Customers, due twenty (20) days following the end of the month in which a statement is posted to the Customer’s address or address for notices;
d) the date specified on any invoice or other form as being the date for payment; or
e) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Customer by the Service Provider.
5.6 At the agreement of both parties, payment of the Price may be subject to retention by the Customer of an amount (hereafter called the “Retention Money”), being a set amount or equal to a percentage of the Price. The Customer shall hold the Retention Money for the agreed period following completion of the Works during which time all Works are to be completed and/or all defects are to be remedied. Any Retention Money applicable to this Contract is to be dealt with in accordance with Subpart 2A – sections 18(a) to 18(i) of the Construction Contracts Amendment Act 2015 and as such no Retention Money shall be use other than to remedy defects in the performance of the Service Provider’s obligations under the Contract.
5.7 Payment may be made by electronic/on-line banking, or by any other method as agreed to between the Customer and the Service Provider.
5.8 The Service Provider may in its discretion allocate any payment received from the Customer towards any invoice that the Service Provider determines and may do so at the time of receipt or at any time afterwards. On any default by the Customer the Service Provider may re- allocate any payments previously received and allocated. In the absence of any payment allocation by the Service Provider, payment will be deemed to be allocated in such manner as preserves the maximum value of the Service Provider’s Purchase Money Security Interest (as defined in the PPSA) in the Materials.
5.9 The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by the Service Provider nor to withhold payment of any invoice because part of that invoice is in dispute, unless the request for payment by the Service Provider is a claim made under the Construction Contracts Act 2002. Nothing in this clause 5.9 prevents the Customer from the ability to dispute any invoice.
5.10 Unless otherwise stated the Price does not include GST. In addition to the Price, the Customer must pay to the Service Provider an amount equal to any GST the Service Provider must pay for any supply by the Service Provider under this or any other agreement for the sale of the Materials. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition, the Customer must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
6. Provision of the Works
6.1 Subject to clause 6.2 it is the Service Provider’s responsibility to ensure that the Works start as soon as it is reasonably possible.
6.2 The Works’ commencement date will be put back and the completion date extended by whatever time is reasonable in the event that the Service Provider claims an extension of time (by giving the Customer written notice) where completion is delayed by an event beyond the Service Provider’s control, including but not limited to any failure by the Customer to:
a) make a selection; or
b) have the Worksite ready for the Works; or
c) notify the Service Provider that the Worksite is ready.
6.3 At the Service Provider’s sole discretion, the cost of delivery is included in the Price.
6.4 The Service Provider may deliver the Works by separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
6.5 The Customer shall take delivery of the Materials tendered notwithstanding that the quantity so delivered shall be either greater or lesser than the quantity purchased provided that:
a) such discrepancy in quantity shall not exceed five percent (5%); and
b) The price shall be adjusted pro rata to the discrepancy.
6.6 Any time specified by the Service Provider for delivery of the Works is an estimate only and the Service Provider will not be liable for any loss or damage incurred by the Customer as a result of delivery being late. However, both parties agree that they shall make every endeavour to enable the Works to be supplied at the time and place as was arranged between both parties. In the event that the Service Provider is unable to supply the Works as agreed solely due to any action or inaction of the Customer, then the Service Provider shall be entitled to charge a reasonable fee for re-supplying the Works at a later time and date, and/or for storage of the Materials.
7. Worksite Access
7.1 The Customer shall ensure that the Worksite is made available, and that the Service Provider has clear and free access to the Worksite (and that such access is suitable to accept the weight of laden trucks, front end loaders or other earth moving equipment as may be deemed necessary by the Service Provider), at the agreed date/s and time/s, to enable the Service Provider to provide the Works, and:
a) the Service Provider shall not be liable for any loss or damage to the Worksite (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of the Service Provider; and
b) if the Works are interrupted by the failure of the Customer to adhere to the work schedule agreed to between the Service Provider and the Customer, any additional costs will be invoiced to the Customer as a variation in accordance with clause 5.2.
8. Risk
8.1 If the Service Provider retains ownership of the Materials under clause 11 then:
a) where the Service Provider is supplying Materials only, all risk for the Materials shall immediately pass to the Customer on delivery and the Customer must insure the Materials on or before delivery. Delivery of the Materials shall be deemed to have taken place immediately at the time that the Materials are delivered by the Service Provider or the Service Provider’s nominated carrier to the Customer’s nominated delivery address (even if the Customer is not present at the address); or
b) unless otherwise agreed, where the Service Provider is to both supply and install Materials then the Service Provider shall maintain a Contract works insurance policy until the Works are completed. Upon completion of the Works all risk for the Works shall immediately pass to the Customer.
8.2 Notwithstanding the provisions of clause 8.1 if the Customer specifically requests the Service Provider to leave Materials outside the Service Provider’s premises for collection or to deliver the Materials to an unattended location then such Materials shall always be left at sole risk of the Customer and it shall be the Customer’s responsibility to ensure the Materials are insured adequately or at all. In the event that such Materials are lost, damaged or destroyed then replacement of the Materials shall be at the Customer’s expense.
8.3 The Service Provider shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Customer. The Customer acknowledges and agrees that in the event that any of this information provided by the Customer is inaccurate, the Service Provider accepts no responsibility for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information.
8.4 Where the Customer has provided instructions or specifications for the Service Provider to complete the Works (including, but not limited to, any requested variation to the original design), then the Service Provider shall accept no liability whatsoever for the finished Works being deemed as unsatisfactory to the Customer.
8.5 The Customer warrants that the structure of the premises or equipment in or upon which these Materials are to be installed or erected is sound and will sustain the installation and work incidental thereto and the Service Provider shall not be liable for any claims, demands, losses, damages, costs and expenses howsoever caused or arising should the premises or equipment be unable to accommodate the installation. If for any reason (including the discovery of asbestos or other foreign/toxic materials, dangerous access, or risk etc.), the Service Provider reasonably forms the opinion that the Customer’s premises is not safe for the Works to proceed then the Service Provider shall be entitled to suspend the Works (in accordance with clause 6.2), until the Service Provider is satisfied that it is safe for the Works to proceed.
8.6 In the event asbestos or any other toxic substances are discovered at the Worksite, that it is the Customer’s responsibility to ensure the safe removal of the same. The Customer further agrees to indemnify the Service Provider against any costs incurred by the Service Provider as a consequence of such discovery. Under no circumstances will the Service Provider handle removal of asbestos product.
8.7 The Customer acknowledges that:
a) the Service Provider is only responsible for Materials that are supplied by the Service Provider, and in the event that other items, subsequently fail, the Customer agrees to indemnify the Service Provider against any loss or damage to the Materials, or caused by the Materials, or any part thereof howsoever arising; and
b) all shrubs, plants, natural turf and any other flora, foliage become the responsibility of the Customer once planted, and that no maintenance thereof by the Service Provider is included unless instructed by the Customer and agreed to in writing between the parties; and
c) the Service Provider shall take due care in spraying the specified area; however, the Customer accepts that in some circumstances that spray drift of chemicals due to wind or application methods may result in some damage to peripheral areas (including, but not limited to, plants, shrubs, vegetable gardens, specimen trees, ponds, or waterways etc.) the Service Provider shall not be responsible or liable for such damage that may result; and
d) instant turf is sourced by the Service Provider’s third-party suppliers therefore the Service Provider has no control and shall not be liable for any subsequent defects or apparent weeds and/or insects that become present during and/or after the installation of the Materials;
e) an excerpt noting that tall and fine Fescue seeds are difficult to establish and will need maintenance and reseeding during the first twelve to eighteen (12-18) months at the Customers expense. Should the Customer use a straight Fescue seed it shall be at the Customer’s own risk and the Service Provider strongly advises that the Customer should take up the annual lawncare maintenance programme. This option requires more input than the Service Provider’s standard seed blend and shall require regular watering, and correct mowing practices; and
f) Materials (including, but not limited to, lawn, turf, concrete, etc.) supplied by the Service Provider and/or any third-party contractor may:
(i)exhibit variations in texture, shade, colour, surface, finish, and may fade or change colour over time. The Service Provider will make every effort to match batches/sales samples to Materials supplied in order to minimise such variations, but shall not be liable in any way whatsoever where such variations occur; and
(ii)expand, contract, or distort as a result of exposure to heat, cold, weather; and
(iii)mark or stain if exposed to certain substances; and
(iv)be damaged or disfigured by impact or scratching
8.8 The Customer shall:
a) organise traffic management to enable the Works to be undertaken (where in the Service Provider ‘s opinion it is deemed necessary). Failure of the Customer to adhere to this clause and the responsibility falls on the Service Provider, all cost involved in organising traffic management will be on-charged to the Customer as per clause 5.2; and
b) remove any furniture, furnishings, crockery, pot plants, ornaments, or personal goods from the vicinity of the Works and agrees that the Service Provider shall not be liable for any damage caused to those items through the Customer’s failure to comply with this clause; and
c) supply access to a suitable free power source, running water, eating, toilet and first aid facilities, if required.
8.9 Upon completion of the Works, the Service Provider will carry out a reasonable clean-up of the Customers property and shall remove all major debris, however, the Customer acknowledges and accepts that the Service Provider will not be liable to restore the Customers property to its original condition (i.e., as it was) prior to the commencement of any Works. Clearance of any minor debris remaining after the Service Provider clean-up will be the Customer’s responsibility.
8.10 The Service Provider shall not be liable for any defect or damage resulting from incorrect or faulty installation (including, but not limited to, irrigation install, laying of turf, lawn sprayed and concrete works, etc.) carried out by any other third party.
9. Underground Locations
9.1 Prior to the Service Provider commencing any work the Customer must advise the Service Provider of the precise location of all underground services on the Worksite and clearly mark the same. The underground mains and services the Customer must identify include, but are not limited to, electrical services, gas services, sewer services, pumping services, sewer connections, sewer sludge mains, water mains, irrigation pipes, telephone cables, fibre optic cables, oil pumping mains, and any other services that may be on the Worksite.
9.2 If the Customer requests the Service Provider to engage a service locator, then this shall be in addition to the Price and “Before You Dig” must be consulted and any potential underground services marked on the Worksite.
9.3 Whilst the Service Provider will take all care to avoid damage to any underground services the Customer agrees to indemnify the Service Provider in respect of all and any liability claims, loss, damage, costs and fines as a result of damage to services not precisely located and notified as per clause 9.1.
10. Compliance with Laws
10.1 The Customer and the Service Provider shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Works, including any WorkSafe health and safety laws relating or any other relevant safety standards or legislation pertaining to the Works.
10.2 Both parties acknowledge and agree:
a) to comply with the Building Act 2004 (including any subsequent Amendments) and Code of Ethics, in respect of all workmanship and building products to be supplied during the course of the Works; and
b) that Works will be provided in accordance with any current relevant Australian/New Zealand Standards applicable.
10.3 Where the Customer has supplied products for the Service Provider to complete the Works, the Customer acknowledges that it accepts responsibility for the suitability of purpose and use for their products and the Intended Use and any faults inherent in those products. However, if in the Service Provider’s opinion, it is believed that the materials supplied are Non-Conforming products and will not conform with New Zealand regulations, then the Service Provider shall be entitled, without prejudice, to halt the Works until the appropriate conforming products are sourced and all costs associated with such a change to the plans and design will be invoiced in accordance with clause 5.2.
10.4 The Customer shall obtain (at the expense of the Customer) all licenses and approvals that may be required for the Works.
10.5 Notwithstanding clause 10.1 and pursuant to the Health & Safety at Work Act 2015 (the “HSW Act”), the Service Provider agrees at all times to comply with sections 28 and 34 of the “HSW Act” with meeting their obligations for health and safety laws in the workplace regardless of whether they may be the party in control of the Worksite or where they may be acting as a sub-contractor for the Customer who has engaged a third-party head contractor.
11. Title
11.1 The Service Provider and the Customer agree that ownership of the Materials shall not pass until:
a) the Customer has paid the Service Provider all amounts owing to the Service Provider; and
b) the Customer has met all of its other obligations to the Service Provider.
11.2 Receipt by the Service Provider of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.
11.3 It is further agreed that:
a) until ownership of the Materials passes to the Customer in accordance with clause 11.1 that the Customer is only a bailee of the Materials and unless the Materials have become fixtures must return the Materials to the Service Provider on request;
b) the Customer holds the benefit of the Customer’s insurance of the Materials on trust for the Service Provider and must pay to the Service Provider the proceeds of any insurance in the event of the Materials being lost, damaged or destroyed;
c) the production of these terms and conditions by the Service Provider shall be sufficient evidence of the Service Provider’s rights to receive the insurance proceeds direct from the insurer without the need for any person dealing with the Service Provider to make further enquiries;
d) the Customer must not sell, dispose, or otherwise part with possession of the Materials other than in the ordinary course of business and for market value. If the Customer sells, disposes or parts with possession of the Materials then the Customer must hold the proceeds of any such act on trust for the Service Provider and must pay or deliver the proceeds to the Service Provider on demand;
e) the Customer should not convert or process the Materials or intermix them with other goods but if the Customer does so then the Customer holds the resulting product on trust for the benefit of the Service Provider and must sell, dispose of or return the resulting product to the Service Provider as it so directs;
f) unless the Materials have become fixtures the Customer irrevocably authorises the Service Provider to enter any premises where the Service Provider believes the Materials are kept and recover possession of the Materials;
g) the Service Provider may recover possession of any Materials in transit whether or not delivery has occurred;
h) the Customer shall not charge or grant an encumbrance over the Materials nor grant nor otherwise give away any interest in the Materials while they remain the property of the Service Provider; and
i) the Service Provider may commence proceedings to recover the Price of the Materials sold notwithstanding that ownership of the Materials has not passed to the Customer.
12. Personal Property Securities Act 1999 (“PPSA”)
12.1 Upon assenting to these terms and conditions in writing the Customer acknowledges and agrees that:
a) these terms and conditions constitute a security agreement for the purposes of the PPSA; and
b) a security interest is taken in all Materials that have previously been supplied and that will be supplied in the future by the Service Provider to the Customer and the proceeds from such Materials as listed by the Service Provider to the Customer in invoices rendered from time to time.
12.2 The Customer undertakes to:
a) sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which the Service Provider may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
b) indemnify, and upon demand reimburse, the Service Provider for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Materials charged thereby;
c) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Materials or the proceeds of such Materials in favour of a third party without the prior written consent of the Service Provider; and
d) immediately advise the Service Provider of any material change in its business practices of selling Materials which would result in a change in the nature of proceeds derived from such sales.
12.3 The Service Provider and the Customer agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
12.4 The Customer waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, and 131 of the PPSA.
12.5 Unless otherwise agreed to in writing by the Service Provider, the Customer waives its right to receive a verification statement in accordance with section 148 of the PPSA.
12.6 The Customer shall unconditionally ratify any actions taken by the Service Provider under clauses 12.1 to 12.5.
12.7 Subject to any express provisions to the contrary (including those contained in this clause 12), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
13. Security and Charge
13.1 In consideration of the Service Provider agreeing to supply the Works, the Customer charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Customer either now or in the future, and the Customer grants a security interest in all of its present and after-acquired property, to secure the performance by the Customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money). The terms of the charge and security interest are the terms of Memorandum 2018/4344 registered pursuant to s.209 of the Land Transfer Act 2017.
13.2 The Customer indemnifies the Service Provider from and against all the Service Provider’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising the Service Provider’s rights under this clause.
13.3 The Customer irrevocably appoints the Service Provider and each director of the Service Provider as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 13 including, but not limited to, signing any document on the Customer’s behalf.
14. Defects and Returns
14.1 The Customer shall inspect the Materials on delivery and shall within seven (7) days of delivery (time being of the essence) notify the Service Provider of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer shall afford the Service Provider an opportunity to inspect the Materials within a reasonable time following delivery if the Customer believes the Materials are defective in any way. If the Customer shall fail to comply with these provisions the Materials shall be presumed to be free from any defect or damage. For defective Materials, which the Service Provider has agreed in writing that the Customer is entitled to reject, the Service Provider’s liability is limited to either (at the Service Provider’s discretion) replacing the Materials or repairing the Materials.
14.2 Materials will not be accepted for return other than in accordance with 14.1 above.
14.3 Non-stocklist items, instant turf or Materials made to the Customer’s specifications are under no circumstances acceptable for credit or return.
15. Warranties
15.1 Subject to the conditions of warranty set out in clause 15.2 the Service Provider warrants that if any defect in any workmanship provided by the Service Provider becomes apparent and is reported to the Service Provider within three (3) months of the date of delivery (time being of the essence) and up to six (6) weeks for lack of germination in seeding or hydroseeding then the Service Provider will either (at the Service Provider’s sole discretion) replace irrigation parts or remedy the lawn.
15.2 The conditions applicable to the warranty given by clause 15.1 are:
a) the warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
i) failure on the part of the Customer to properly maintain any Materials or serviced item; or
ii) failure on the part of the Customer to follow any instructions or guidelines provided by the Service Provider; or
iii) any use of any Materials or serviced item otherwise than for any application specified on a quote or order form; or
iv) the continued use of any Materials or serviced item after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or
v) fair wear and tear, any accident, act of God and climatic conditions, particularly over summer and winter.
b) the warranty shall cease and the Service Provider shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without the Service Provider’s consent.
c) in respect of all claims the Service Provider shall not be liable to compensate the Customer for any delay in either replacing or remedying the workmanship or in properly assessing the Customer’s claim.
15.3 For Materials not manufactured by the Service Provider, the warranty shall be the current warranty provided by the manufacturer of the Materials. The Service Provider shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Materials.
16. Consumer Guarantees Act 1993
16.1 If the Customer is acquiring Materials for the purposes of a trade or business, the Customer acknowledges that the provisions of the Consumer Guarantees Act 1993 (“CGA”) do not apply to the supply of Materials by the Service Provider to the Customer.
17. Intellectual Property
17.1 Where the Service Provider has designed, drawn, written plans or a schedule of Works, or created any products for the Customer, then the copyright in all such designs, drawings, documents, plans, schedules and products shall remain vested in the Service Provider, and shall only be used by the Customer at the Service Provider’s discretion. Under no circumstances may such designs, drawings and documents be used without the express written approval of the Service Provider.
17.2 The Customer warrants that all designs, specifications or instructions given to the Service Provider will not cause the Service Provider to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify the Service Provider against any action taken by a third party against the Service Provider in respect of any such infringement.
17.3 The Customer agrees that the Service Provider may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings, plans or products which the Service Provider has created for the Customer.
18. Default and Consequences of Default
18.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at the Service Provider’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
18.2 If the Customer owes the Service Provider any money the Customer shall indemnify the Service Provider from and against all costs and disbursements incurred by the Service Provider in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, the Service Provider’s collection agency costs, and bank dishonour fees).
18.3 Further to any other rights or remedies the Service Provider may have under this Contract, if a Customer has made payment to the Service Provider, and the transaction is subsequently reversed, the Customer shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by the Service Provider under this clause 18, where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Customer’s obligations under this Contract.
18.4 Without prejudice to the Service Provider’s other remedies at law the Service Provider shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to the Service Provider shall, whether or not due for payment, become immediately payable if:
a) any money payable to the Service Provider becomes overdue, or in the Service Provider’s opinion the Customer will be unable to make a payment when it falls due;
b) the Customer has exceeded any applicable credit limit provided by the Service Provider;
c) the Customer becomes insolvent or bankrupt, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
19. Cancellation
19.1 Without prejudice to any other rights or remedies the Service Provider may have, if at any time the Customer is in breach of any obligation (including those relating to payment and/or failure to remedy any breach in respect of this Contract within ten (10) working days of receipt by the Customer of such notice/s) then the Service Provider may suspend or terminate the supply of the Works. The Service Provider will not be liable to the Customer for any loss or damage the Customer suffers because the Service Provider has exercised its rights under this clause.
19.2 The Service Provider may cancel any Contract to which these terms and conditions apply or cancel delivery of Works at any time before the Works are commenced by giving written notice to the Customer. On giving such notice the Service Provider shall repay to the Customer any sums paid in respect of the Price, less any amounts owing by the Customer to the Service Provider for Works already performed. The Service Provider shall not be liable for any loss or damage whatsoever arising from such cancellation.
19.3 In the event that the Customer cancels the delivery of Works the Customer shall be liable for any and all loss incurred (whether direct or indirect) by the Service Provider as a direct result of the cancellation (including, but not limited to, any loss of profits).
19.4 Cancellation of orders for products made to the Customer’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
20. Privacy Policy
20.1 All emails, documents, images or other recorded information held or used by the Service Provider is “Personal Information” as defined and referred to in clause 20.3 and therefore considered confidential. The Service Provider acknowledges its obligation in relation to the handling, use, disclosure and processing of Personal Information pursuant to the Privacy Act 2020 (“the Act”) including Part II of the OECD Guidelines and as set out in the Act. The Service Provider acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Customer’s Personal Information, held by the Service Provider that may result in serious harm to the Customer, the Service Provider will notify the Customer in accordance with the Act. Any release of such Personal Information must be in accordance with the Act and must be approved by the Customer by written consent, unless subject to an operation of law.
20.2 Notwithstanding clause 20.1, privacy limitations will extend to the Service Provider in respect of Cookies where the Customer utilises the Service Provider’s website to make enquiries. The Service Provider agrees to display reference to such Cookies and/or similar tracking technologies, such as pixels and web beacons (if applicable), such technology allows the collection of Personal Information such as the Customer’s:
a) IP address, browser, email client type and other similar details;
b) tracking website usage and traffic; and
c) reports are available to the Service Provider when the Service Provider sends an email to the Customer, so the Service Provider may collect and review that information (“collectively Personal Information”) If the Customer consents to the Service Provider’s use of Cookies on the Service Provider’s website and later wishes to withdraw that consent, the Customer may manage and control the Service Provider’s privacy controls via the Customer’s web browser, including removing Cookies by deleting them from the browser history when exiting the site.
20.3 The Customer authorises the Service Provider or the Service Provider’s agent to:
a) access, collect, retain and use any information about the Customer;
i) (including, name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history or any overdue fines balance information held by the Ministry of Justice) for the purpose of assessing the Customer’s creditworthiness; or
ii) for the purpose of marketing products and services to the Customer.
b) disclose information about the Customer, whether collected by the Service Provider from the Customer directly or obtained by the Service Provider from any other source, to any other credit provider or any credit reporting agency for the purposes of providing or obtaining a credit reference, debt collection or notifying a default by the Customer.
20.4 Where the Customer is an individual the authorities under clause 20.3 are authorities or consents for the purposes of the Privacy Act 2020.
20.5 The Customer shall have the right to request (by e-mail) from the Service Provider, a copy of the Personal Information about the Customer retained by the Service Provider and the right to request that the Service Provider correct any incorrect Personal Information.
20.6 The Service Provider will destroy Personal Information upon the Customer’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this Contract or is required to be maintained and/or stored in accordance with the law.
20.7 The Customer can make a privacy complaint by contacting the Service Provider via e-mail. The Service Provider will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within twenty (20) days of receipt of the complaint. In the event that the Customer is not satisfied with the resolution provided, the Customer can make a complaint to the Privacy Commissioner at http://www.privacy.org.nz.
21. Suspension of Works
21.1 Where the Contract is subject to section 24A of the Construction Contracts Act 2002, the Customer hereby expressly acknowledges that:
a) the Service Provider has the right to suspend work within five (5) working days of written notice of its intent to do so if a payment claim is served on the Customer, and:
i) the payment is not paid in full by the due date for payment in accordance with clause 5.5 and/or any subsequent amendments or new legislation and no payment schedule has been given by the Customer; or
ii) a scheduled amount stated in a payment schedule issued by the Customer in relation to the payment claim is not paid in full by the due date for its payment; or
iii) the Customer has not complied with an adjudicator’s notice that the Customer must pay an amount to the Service Provider by a particular date; and
iv) the Service Provider has given written notice to the Customer of its intention to suspend the carrying out of construction work under the construction Contract.
b) if the Service Provider suspends work, it:
i) is not in breach of Contract; and
ii) is not liable for any loss or damage whatsoever suffered, or alleged to be suffered, by the Customer or by any person claiming through the Customer; and
iii) is entitled to an extension of time to complete the Contract; and
iv) keeps its rights under the Contract including the right to terminate the Contract; and may at any time lift the suspension, even if the amount has not been paid or an adjudicator’s determination has not been complied with.
c) if the Service Provider exercises the right to suspend work, the exercise of that right does not:
i) affect any rights that would otherwise have been available to the Service Provider under the Contract and Commercial Law Act 2017; or
ii) enable the Customer to exercise any rights that may otherwise have been available to the Customer under that Act as a direct consequence of the Service Provider suspending work under this provision;
d) due to any act or omission by the Customer, the Customer effectively precludes the Service Provider from continuing the Works or performing or complying with the Service Provider’s obligations under this Contract, then without prejudice to the Service Provider’s other rights and remedies, the Service Provider may suspend the Works immediately after serving on the Customer a written notice specifying the payment default or the act, omission or default upon which the suspension of the Works is based. All costs and expenses incurred by the Service Provider as a result of such suspension and recommencement shall be payable by the Customer as if they were a variation.
21.2 If pursuant to any right conferred by this Contract, the Service Provider suspends the Works and the default that led to that suspension continues un-remedied subject to clause 19.1 for at least ten (10) working days, the Service Provider shall be entitled to terminate the Contract, in accordance with clause 19.
22. Service of Notices
22.1 Any written notice given under this Contract shall be deemed to have been given and received:
a) by handing the notice to the other party, in person;
b) by leaving it at the address of the other party as stated in this Contract;
c) by sending it by registered post to the address of the other party as stated in this Contract;
d) if sent by facsimile transmission to the fax number of the other party as stated in this Contract (if any), on receipt of confirmation of the transmission;
e) if sent by email to the other party’s last known email address.
22.2 Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.
23. Trusts
23.1 If the Customer at any time upon or subsequent to entering in to the Contract is acting in the capacity of trustee of any trust (“Trust”) then whether or not the Service Provider may have notice of the Trust, the Customer covenants with the Service Provider as follows:
a) the Contract extends to all rights of indemnity which the Customer now or subsequently may have against the Trust and the trust fund;
b) the Customer has full and complete power and authority under the Trust to enter into the Contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Customer against the Trust or the trust fund. The Customer will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity;
c) the Customer will not without consent in writing of the Service Provider (the Service Provider will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events:
i) the removal, replacement or retirement of the Customer as trustee of the Trust;
ii) any alteration to or variation of the terms of the Trust;
iii) any advancement or distribution of capital of the Trust; or
iv) any resettlement of the trust property.
24. General
24.1 Any dispute or difference arising as to the interpretation of these terms and conditions or as to any matter arising herein, shall be submitted to, and settled by, mediation before resorting to any external dispute resolution mechanisms (including arbitration or court proceedings) by notifying the other party in writing setting out the reason for the dispute. The parties shall share equally the mediator’s fees. Should mediation fail to resolve the dispute, the parties shall be free to pursue other dispute resolution avenues.
24.2 The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality, and enforceability of the remaining provisions shall not be affected, prejudiced, or impaired.
24.3 These terms and conditions and any Contract to which they apply shall be governed by the laws of New Zealand and are subject to the jurisdiction of the courts of Te Awamutu, New Zealand.
24.4 Subject to the CGA, the Service Provider shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by the Service Provider of these terms and conditions (alternatively the Service Provider’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Works).
24.5 The Service Provider may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Customer’s consent.
24.6 The Customer cannot licence or assign without the written approval of the Service Provider.
24.7 The Service Provider may elect to subcontract out any part of the Works but shall not be relieved from any liability or obligation under this Contract by so doing. Furthermore, the Customer agrees and understands that they have no authority to give any instruction to any of the Service Provider’s sub-contractors without the authority of the Service Provider.
24.8 The Customer agrees that the Service Provider may amend their general terms and conditions for subsequent future Contracts with the Customer by disclosing such to the Customer in writing. These changes shall be deemed to take effect from the date on which the Customer accepts such changes, or otherwise at such time as the Customer makes a further request for the Service Provider to provide Works to the Customer.
24.9 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm, national or global pandemics and/or the implementation of regulation, directions, rules or measures being enforced by Governments or embargo, including but not limited to, any Government imposed border lockdowns (including, worldwide destination ports), etc, (“Force Majeure”) or other event beyond the reasonable control of either party. This clause does not apply to a failure by the Customer to make a payment to the Service Provider.
24.10 Both parties warrant that they have the power to enter into this Contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this Contract creates binding and valid legal obligations on them.
