TERMS OF TRADE
1. How these Terms Apply You are taken to have exclusively accepted and are immediately bound, jointly and severally (where there is more than one purchaser), by these terms of trade when any one of the following occurs:
a. place an order for any Goods and Services from us; and/or
b. accept delivery of any Goods from us; and/or
c. accept our Services by permitting entry by us to your premises to perform Services or install any Goods; and/or
d. issue a purchase order to us following receipt of a Quote/Cost Estimate,
and together these terms apply in conjunction with any specific exclusions or additional terms specified in any Quote/Cost Estimate
2. Our Contract Your acceptance of the Quote/Cost Estimate and these general terms together constitute our agreement with you (this Contract). This Contract governs the agreement between CHRISTOPHER HERBERT TRADING AS LAWN CARE + (NZBN 9429050153916) (“us”, “our” or “we”) and you, the named customer in the Quote/Cost Estimate, in respect of the Goods and Services.
3. “Business Days” Any reference to ‘Business Days’ in these terms means a day on which banks are ordinarily open and excludes a Saturday, a Sunday or a public holiday. Any other reference to a ‘day’ shall mean a calendar day.
4. “You” Means the purchaser buying the Goods and Services as specified in any invoice, order, Quote/Cost Estimate or any other document. If the purchaser comprises more than one person, each of those persons’ liability and agreement is joint and several.
5. Any reference to “Us, “Our,” or We” in these terms includes any contractor, employee, assignee, agent, transferees or approved subcontractor that we use.
OUR SERVICES AND OBLIGATIONS
6. Goods and Services Our Services include:
a. any works performed including lawn mowing, lawn care, gardening, exterior clearance and exterior property maintenance services, and any other services described in our Quote/Cost Estimate where the context requires; and
b. supply of Goods and materials required in connection with Services described in the Quote/Cost Estimate; and
c. supply of service under a Service Plan for repeat supply of Services as described in the Quote/Cost Estimate
together these are the Services or the Goods in these terms as the context requires.
7. Performance We will perform our Services with due skill and care and in a competent manner. All Goods and materials supplied as part of the delivery of the Services will be fit for purpose for the proposed use and unless agreed with you, will be new.
8. Equipment We shall provide our own equipment unless specifically agreed otherwise with you.
9. Service Plans Where we offer a Service Plan, we will perform the number of tasks and activities listed in the selected Plan.
10. Exclusions All job specific or activity limitations to a selected Service are listed in our Quote/Cost Estimate and are incorporated into these terms.
11. Updates on Timing We will advise you of any anticipated delay to provide a Service.
HOURLY AND ONE-OFF SERVICES
12. Hourly and One Off Services Where you have selected to purchase Services from us on an hourly basis or as a fixed price one-off Service, including but not limited to, property clearances, the following shall apply:
a. Tasks to be agreed in advance hourly Services shall be subject to a specified list of tasks and activities agreed with you in advance and shall not exceed these tasks unless expressly agreed by us in advance and subject to additional charges at our published hourly rate; and
b. Minimum Service Period a minimum service period shall apply as stated in your Quote/Cost Estimate or otherwise published by us; and
c. Services Provided for Hours Purchased you will receive the Services for the hours agreed and we are under no obligation to exceed these hours; and
d. Sufficiency of time to perform services we will use our reasonable judgement to advise you of the estimated time to complete the tasks you have requested at the time of booking. However, we make no warranty that the number of lawn care tasks requested shall be performed or completed in the number of hours purchased where the condition of the Premises affects this or where we have previously advised you that the number of tasks requested exceeds the purchased hours.
SERVICE PLANS
13. Where you have selected to purchase a service plan from us for repeat, scheduled lawn care Services (Service Plan), the following terms shall apply:
a. Services limited to plan selection any Services delivered under a Service Plan will be limited to delivery of a specific number of lawn care tasks and activities as described in our Quote/Cost Estimate for the Service Plan type selected; and
b. Additional services charged at hourly rates any additional lawn care tasks or activities requested to be performed by us which exceed a Service Plan inclusion will be invoiced in addition to the agreed Service Plan fee at our standard hourly rates; and
c. Service Plan upgrade where you requested additional lawn care tasks to be performed on more than two occasions, we reserve our right to move you to the next Service Plan tier which includes such tasks or activities as standard (as applicable); and
d. Service Plan frequency Service Plan Services will be performed at the frequency agreed with you subject to payment of your Service Plan Fees at the agreed frequency; and
e. Cancellation of a Service Plan you may cancel your Service Plan at any time by emailing us with at least thirty (30) Business Days’ notice in writing by email; and
f. Final cancellation payment where we have agreed that your Service Plan fee may be paid in instalments, you remain liable to pay the balance of your Service Plan fees up to the end of the cancellation notice period; and
g. Service Plan renewal any renewal will be on the current, published Plan price for your chosen service as at the date of renewal; and
h. Suspension of Service Plan if your applicable Service Plan fee is not paid when it becomes due and payable, or a recurring payment method is rejected or fails, we reserve our rights to suspend delivery of Service Plan Services in accordance with these terms; and
CUSTOMER OBLIGATIONS
14. Lawn and Grounds Clearance You must complete the following in advance of us commencing the Services to avoid extra charges and to enable us to perform the Services when scheduled:
a. Removal of obstructions and debris from lawns you must remove obstructions and debris from the lawns in advance, including:
b. Toys and sports equipment; and
c. Sticks and branches; and
d. Dog Faeces; and
e. Parked Vehicles; and
f. Any other items, equipment or debris that may obstruct the mowing.
15. Access you must arrange access to the Premises including, where applicable, gate access.
16. Securing of dogs you must ensure dogs are adequately restrained, crated or located in a closed environment (e.g. a garage, kennel) while the Services are being performed.
17. Specialist lawn care instructions where you require specific instructions to be followed, you must provide details in writing in advance of commencement of our Services.
18. Relocation or untethering of trampolines you must either relocate trampolines or, where agreed that we will relocate as part of the Services, untether them in readiness.
19. Other preparatory works any other preparatory work that you have expressly agreed you will perform in advance of the Services.
20. Authority for Approval Decisions You must nominate a single individual with authority to give instructions or approval to us, and where you are working with a professional consultant that you wish to delegate approval and authority to, you must provide us with written confirmation of their contact name, status and basis on which approval or instructions can be accepted by us.
21. Consents You must make your own enquiries relating to the requirement of any consents required to enable us to perform the Services including, but not limited to,
a. landlord consent where you are a residential tenant; or
b. building owner consent where you are a commercial tenant; or
c. any other consent from a third party in connection with the Premises,
and you must arrange for all such consents to be obtained at your sole cost.
22. Electricity and Water Supply You must provide an adequate electricity and water supply to us at the Premises where this is required for our Services.
PAYMENTS AND INVOICING
23. Amounts Owing Payable on Due Date All amounts specified in an invoice will require payment on the due date specified in the invoice (Amounts Owing).
24. Invoices We will invoice for the Services on the following basis as specified in your Quote/Cost Estimate:
a. For hourly services on a specific frequency (e.g. fortnightly or monthly) for actual hours incurred; or
b. For one off services at the completion of the Services subject to a deposit where our Quote/Cost Estimate states this shall apply; or
c. Service Plan fees at the agreed recurring fee and frequency as specified in your applicable Quote/Cost Estimate.
25. Service Plan Payment Method Where you have selected a Service Plan, the following applies:
a. the Service Plan fees are payable in advance unless expressly agreed otherwise by us; and
b. the Service Plan payment method may be updated or altered to be automatic payment, recurring invoice or direct debit plan at any time at our sole discretion provided we give you thirty (30) Business Days’ notice of such change; and
c. the Service Plan fees shall continue to accrue and be payable until your cancellation period has expired.
26. Missed Appointment Fees Where we attend your Premises on the agreed date and time, and you fail to make the necessary arrangements or meet your Customer Obligations to enable us to perform our Services, the following charges shall apply:
a. For Service Plans, we will charge the full Service Plan fee for the missed appointment and no make-up appointment will be available; and
b. For Hourly Services, we will charge the hourly rates for the Minimum Service Period that applies; and
c. For One-Off Services, we may charge up to 50% of the fixed price quoted.
27. Additional Costs due to Failure to Clear Grounds and Lawns Where we have attended your Premises and you have failed to adequately clear the grounds and lawns in readiness for our visit, the following may apply:
a. We will mow around obstructions and this may result in an uneven lawn height; and/or
b. We may not perform Services due to significant obstructions that prevent us from performing the mowing;
In each case this may result in a Missed Appointment Fee (as stated in the clause above) and additional charges may apply to the next scheduled Service due to increased growing time if lawns between appointments resulting in more time to complete the Services.
28. No Set Off or Deduction Payment of Amounts Owing Amounts Owing which are due and payable must be made without set-off or deduction of any kind.
29. If You Dispute the Amount Owing If you receive an invoice and you consider you owe us a lesser amount than the sum stated as the Amount Owing, you must us within five (5) Business Days of receiving our invoice
30. Duty to Pay Undisputed Amounts Owing You acknowledge and agree that you will not be entitled to withhold payment in respect of any undisputed Amount Owing.
31. Overdue Amounts Owing If you do not pay an Amount Owing by the Due Date or any later date we have agreed in writing, this becomes an Overdue Amount Owing. After a period of 7 (seven) Business Days, we shall have the right to apply late payment interest at a rate of 2.5% above the standard BNZ bank rate at the time. This shall be calculated daily and compound monthly at that rate if we elect to do this. This applies before and after any judgment (if applicable).
32. Debt Collection or Recovery Costs If an Overdue Amount Owing remains unpaid for 14 (fourteen) Business Days or more, we reserve our rights to engage the services of a debt collection agency or solicitor to take proceedings to recover the Overdue Amount Owing. You will be liable for the costs incurred by us in the collection of any unpaid amounts including but not limited to legal costs, debt collection fees and internal administration fees.
33. Administration Fees In the event we are obliged to perform any additional actions to recover any monies owed by you, we reserve the right to apply reasonable administrative fees for phone calls, texts, emails and in-person visits to follow up and recover any Overdue Amount Owing in addition to any costs or expenses stated in any clauses above.
VARIATIONS
34. Variations to Price or Time We reserve the right to issue a Variation Order to change the total price or extend the time to complete the Services in the following circumstances:
a. Services extension where an extension to the area to be serviced is requested that extends the sqm or number of tasks and activities on which we have provided our Quote/Cost Estimate; and/or
b. Premises preparation works incomplete where we are delayed or where we have to perform additional works to manage, assist with or co-ordinate any preparation works which form your Customer Obligations; and/or
c. Undetected or unforeseen Issues where the Services are required to be suspended or extended due to the discovery of hidden or unidentifiable difficulties (noting that we reserve our right to exercise our reasonable judgment as to what constitutes “hidden or unidentifiable difficulties” based on our industry expertise). These include, by way of example:
(i) failure by you to perform any of the Customer Obligations (as applicable to your Premises); and/or
(ii) limitations to accessing the Premises to perform the Services; and/or
(iii) encountering obstructions or ground conditions that were not previously advised to us; and/or
(iv) encountering hazardous waste or contaminated ground, soil, materials, waste or another surface; and/or
d. Costs fluctuations where the cost of products, materials or other costs or expenses relating to supply of materials increases beyond our control from the date of issue or acceptance of our Quote/Cost Estimate; and/or
e. Any other impacts where there is a requirement for us to extend the time or cost it takes to complete the works due to the impact of any other changes which are not listed above but which we deem in our reasonable opinion are a Variation.
35. All Rights Reserved to Decline a Variation Where a Variation has been requested by you directly to extend scope, decrease a timeframe, or increase labour units, we reserve our right to decline to treat this as a Variation. In some circumstances, we may elect to treat the request as a new scope of Services and will advise you if a new Quote/Cost Estimate is to be supplied.
36. How We Will Confirm a Variation We shall supply you with a written Variation Order stating the changes to the Quote/Cost Estimate, how the price change has been or will be calculated and state any additional costs to accommodate the Variation. This will be supplemental and in addition to the Quote/Cost Estimate attached to these terms.
TERMINATION OF SERVICES
37. Termination of Services for Default Without prejudice to our other remedies at law, we reserve our rights to terminate this Contract (which includes any part the Services that remain unfulfilled) and shall not be liable to you for any delay, loss or damage suffered by you due to us exercising our rights under this clause, if one or more of the circumstances listed below occurs:
a. you fail to pay any sums that have become an Overdue Amount Owing; and/or
b. you become insolvent or bankrupt, convene a meeting with your creditors or make an assignment for the benefit of your creditors or a receiver, manager, or liquidator (provisional or otherwise) or similar person is appointed in respect of you or your business or its assets; and/or
c. we or our approved personnel are denied access to or are unable to access the Premises to carry out the Services for whatever reason. To avoid any doubt, where we or our approved personnel assess that the means of access to the premises is unsafe and would breach the relevant safety requirements under applicable health and safety legislation, this is a valid reason for termination if it cannot or will not be remedied by you.
38. Termination for Convenience If you elect to terminate this Contract where there is no default by us, you must inform us in writing with no less than ten (10) Business Days’ notice.
39. Amounts Owing for up to Termination Date All Amounts Owing for Goods or Services (as applicable) shall become immediately due and payable if either party exercises their rights to terminate the Services, including (but not limited to Services already performed and completed up to the date of termination.
WARRANTIES
40. Consumer Guarantees Act If you are a customer in trade or business and the Services acquired from us under this Contract are for business purposes, the provisions of the Consumer Guarantees Act 1993 (CGA) shall not apply. Otherwise, the provisions of the CGA shall apply.
41. Health and Safety We will perform the Services to accepted industry standards and in accordance with the Health and Safety at Work Act 2015.
42. Remedies for Defective Services If any defective workmanship is discovered and none of the limitations or exceptions listed in this section apply, you must inform us within twenty four (24) hours of performance of our Services and time is of the essence due to the nature of our service, and the following shall apply:
a. your sole remedy will be a reperformance of the Services; and
b. no refunds shall be offered for Services performed.
43. Exclusion of Warranties Any warranty or guarantee owed by us to you under relevant laws or under this Contract will not apply where:
a. you have failed to comply with one or more of the Customer Obligations; and/or
b. the fault or defect is not notified to us within the applicable Warranty Notice Period; and/or
c. the fault or defect is a result of:
(i) something done by you or someone else, and not by us or our approved contractors; and/or
(ii) something beyond human control that occurred after completion of our Services or works that causes the defect.
COMPLAINTS
44. Notification of Complaint If you are not satisfied with the Services provided, we require you to notify us in writing of your concerns to the email stated on your latest invoice.
45. Resolution of Complaint We shall acknowledge receipt of your complaint and arrange a suitable time and location to discuss your concerns with a view to resolving the complaint.
46. Personnel Selection You acknowledge that you may not select your own preferred personnel for the performance of the Services and you agree to allow the personnel to be returned to your Premises.
RISK
47. Risk in Goods Passes to You on Completion All risk of damage or loss to any Goods shall pass to you on delivery of the Goods or completion of the Services (including where Goods have been installed at your Premises as part of the Services). The responsibility to insure those Goods shall pass to you
LIMITATION OF OUR LIABILITY
48. Delays to Performance of Services Subject to the clause below, if the Services cannot proceed on the scheduled date and time for any reason, we will discuss this with you, and this will be a Variation. We exclude liability to you for any claims, losses, damages, and costs (direct, indirect, or anticipated) incurred by you for the Services not taking place as planned. In the event that the Services are not completed by the anticipated or proposed date advised by us, you acknowledge and agree that you shall not be entitled to any damages (liquidated damages, or any other type of damages or costs) in respect of the delay.
49. Delays or Suspension of Services due to COVID-19 Where the novel coronavirus disease (COVID-19) remains at a pandemic status, our Services are subject to the following:
a. any overriding government directive or laws that are applicable under the Governing Law at the time the Services are being performed, including any directives that order the shutdown of our Services or limits our ability to travel (COVID-19 Related Delay); and
b. in the event there is a COVID-19 Related Delay, the performance of our Services will be extended without liability for the period of the delay or our inability to perform due to such delay; and
c. we will use reasonable commercial endeavours to keep you updated during such delays and resume Services once the COVID-19 Related Delay period is over; and
d. notwithstanding any other clause in this Contract, we reserve the right to refuse to perform Services should we reasonably believe that there is a risk of us or any one of our personnel becoming infected with COVID-19 in doing so; and
e. we reserve all rights to request information or evidence of vaccination of residents of or other visitors to your Premises prior to commencing the Services and shall be entitled to refuse to enter the Premises if no such evidence is provided.
50. Force Majeure Neither party will be liable for any non-performance of its obligations under this Contract due to a force majeure event. For the purposes of these terms, “force majeure” means an event or circumstance which leads to a default of either party under this Contract due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm, port closure or border closure plus any national or global pandemic effects, including, for the avoidance of doubt, any default due to any implementation of any regulation, directive, rule or measure by any government, state or other authority under the governing law of this Contract. This clause does not apply to a default by you to pay Amounts Owing.
51. Limit of Liability Our total aggregate liability to you arising out of or in connection with the Services whether in contract, any indemnity, tort (including negligence) by statute or otherwise at law or in equity is limited to the total price of the Goods or Services or the actual direct costs incurred by you (whichever is the lower amount).
52. Exclusion of Our Liability To the fullest extent permitted by law, and subject to our obligations during the Warranty Notice Period or under any applicable law that imposes guarantees on us, we exclude all liability to you for any direct or indirect claims, expenses, losses, damages and costs (including any incidental, special and/or consequential damages or loss of profits, loss of anticipated savings or loss of expenses suffered or incurred by you resulting (either directly or indirectly) in connection with the Services.
53. When Limitations of Liability Cannot Apply These clauses do not limit our liability to the extent that it cannot be limited at law; and/or arises out of or in connection with any wilful default, fraud or criminal conduct by us.
DISPUTE RESOLUTION
54. Details of the Dispute must be Supplied If you or we consider that a dispute has arisen in relation to any matter governed by this Contract, that party must give the other party written notice outlining the basis of the dispute (Dispute Notice).
55. Dispute must be Discussed The parties must then meet to resolve. If the dispute is not resolved by discussion, meeting and/or other informal means within ten (10) Business Days of the date of the Dispute Notice then the following shall apply:
a. Arbitration or Courts the parties may agree to submit the dispute to arbitration pursuant to the Arbitration Act 1996 (excluding Clauses 4 and 5 of the Second Schedule) or, failing agreement, either party may pursue resolution of the dispute through legal proceedings before the New Zealand courts or suitable tribunal or alternative forum; and
b. Interlocutory relief this clause does not affect either party’s right to seek urgent interlocutory relief.
56. You Must Still Pay Amounts Owing Notwithstanding the presence of a dispute, you must still comply with your obligations to pay us in accordance with the terms of this Contract unless the dispute specifically relates to a disputed amount on an invoice. In that case, you must pay the undisputed portion of that invoice.
NOTICES
57. Deemed Notice Any written notice given under this Contract shall be deemed to have been given and received as follows:
a. by handing the notice to the other party, in person; or
b. by leaving it at the registered address of the other party as stated in this Contract; or
c. by sending it by registered post to the address of the other party as stated in this Contract; or
d. if sent by email to the other party’s last known email address.
GENERAL
58. Governing Law This Contract shall be governed by the laws of New Zealand and the parties irrevocably submit to the exclusive jurisdiction of the courts of New Zealand.
59. Severability If and to the extent any provision or part of a provision is illegal or unenforceable, such provision or part of a provision will be severed from this Contract and will not affect the continued operation of the remaining provisions of this Contract.
60. Entire Agreement This Contract sets out the entire agreement between the parties.
61. Signing Not Required It is not necessary for this Contract to be signed unless we insist on it. You are bound by these terms if you continue to act in a way that is consistent with the arrangement and discussions you have had with us in relation to the Quote/Cost Estimate, and we have incurred time and expense in procuring materials or commenced any part of the Services or works for you, or if you have paid a Deposit.
62. Electronic Acceptance The parties agree that any legal requirement may be met by using electronic means in accordance with the Contract and Commercial Law Act 2017. In this clause the term “legal requirement” has the meaning given to it by section 219(2) of the Contract and Commercial Law Act 2017.
END OF TERMS
