Servicing Auckland's North Shore & Hibiscus Coast

TERMS OF TRADE

ACE OF SPADES LIMITED TERMS OF TRADE

Terms of Trade

OUR SERVICES AND OBILGATIONS

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 or nominated site to perform Services, works 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 ACE OF SPADES LIMITED (“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 client engaging us for the purchase of 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. “Us, “Our,” or We” in these terms includes any contractor, employee, assignee, agent, transferees or approved subcontractor that we use.

5. “Us, “Our,” or We” in these terms includes any contractor, employee, assignee, agent, transferees or approved subcontractor that we use.

6. Goods and Services Our Services include:

a. landscaping works including planting, construction, paving, concreting, retaining, fencing, and any other services described in our Quote/Cost Estimate where the context requires; and b. any works performed relating to tree removal, tree pruning, tree management, stump grinding, firewood preparation; and c. design and planning services including landscape architecture planning and design consultation, design services, and project management service; and d. lawn care, gardening, exterior clearance and exterior property maintenance services; and e. any works performed relating to drainage system design, maintenance, installation, cartage, civil works services; and/or f. the supply of Goods and materials required in connection with any of the Services described in the Quote/Cost Estimate,

and together these are the Services or the Goods in these terms as the context requires.

7. Subcontractors Either we or our approved subcontractors will perform the Services for you.

8. 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.

9. Plans, Drawings and Specifications All plans, drawings and specifications accompanying these terms, including any variations to such plans, drawings and specifications, form part of this Contract.

10. Updates on Timing We will advise you of any anticipated delay to provide a Service or procure Goods.

11. Certificate of Completion and Record of Work If required by law, we will give you any certificate or similar document as needed to confirm the design Services are completed.

12. Work May be Performed in Instalments We may perform the Services and related works in instalments on different dates.

EXCLUSIONS

SEPERATE CONTRACTORS

13. Customer Supplied Materials Where you supply any fittings, structures or materials for your Services, these are not guaranteed by us and we shall not be liable for any delays or additional costs and expenses incurred by you due to incorrect dimensions, colours, finishes, or any other reason that results in your customer supplied materials not being suitable or fit for purpose. To avoid doubt, customer supplied materials are not ‘Goods’ under this Contract.

14. Exclusions We may list job specific exclusions in our Quote/Cost Estimate and such exclusions are incorporated into these terms.

15. Separate Contractor Engagement and Fees You must engage the applicable contractor independently and meet all their fees, costs and expenses directly unless we expressly agree to engage them as our subcontractor as part of our Services.

16. Co-Ordination with Separate Contractors We shall co-operate with any separate contractors you engage to assist with your project subject to an hourly rate for project co-ordination. These include, but are not limited to: a. Builders; and/or b. Other tradespersons; and/or c. Architects

CUSTOMER OBLIGATIONS

17. 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 details and basis on which approval or instructions can be accepted by us. 18. Boundary Access and Consent Where our Services require an adjacent property owner boundary to be crossed or utilised for access, you must obtain consent from the adjacent landowner and boundary markings must be clearly visible and present.

19. Other access where any other specific method of access if required, you must arrange this and communicate this to us in advance.

20. Consents You must make your own enquiries relating to the requirement of any consents required to enable us to perform the Services. You must arrange for all such consents to be obtained at your sole cost unless we have expressly agreed to perform this as your agent in our scope of works.

21. Certifications You are responsible for arranging all and any applicable compliance certification for the works and Services at your sole cost unless we have expressly agreed to perform this as your agent in our scope of works.

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.

23. Development Plans Where you are a developer, you must supply us with complete and accurate plans for the development or subdivisions and ensure we are supplied with revised and updated plans as soon as they are updated.

24. Traffic Management You are responsible for submitting and arranging all traffic management plans required by any authority and managing the timeframe for such approvals to align with the commencement of our Services where we agree traffic management is a requirement to perform our Services.

25. Underground Services Detection Where our design, works or Services may be performed in and around underground services, you must arrange the following at your own cost and expense: a. plans of underground services locations to be ordered; and b. cable locations and mark-out to be performed; and c. mark-outs of all recommended clearances between detected services; and

d. arrange and meet costs (if applicable) of a stand-over service where we identify the Site as high-risk of underground cable or services strikes in relation to the identification and location of all underground services.

26. Site Preparation Works Where our Services include physical works at your nominated site or premises, you must complete the following customer works at your cost in advance of us commencing the Services unless we have specifically included these in our scope of Services: a. Removal of obstructions this includes the removal of obstructions to access to the Site; and/or b. Interior clearance where our Services require access through the interior of a dwelling or structure, the area is made clear for performance of the Services; and/or c. Boundary Markings where our Services require boundaries to be followed, all survey pegs and boundary markings must be clearly visible and present; and/or d. Ground levels all ground levels must be at the required levels indicated in our plans or to our specific instructions to enable the Services to be performed; and/or e. Services trenching all service trenches must have been closed with appropriate compacted backfill where necessary for the performance of the Services; and/or f. Excavation works all excavation, site scraping, downpipes, drainage and other necessary works have been completed and performed; and/or g. Roading surfaces all roading surfaces under your ownership (excluding those vested in local authorities) meet adequate strength ratings to support loads including vibration, weight and depth checks related to methods we may use in the performance of the Services.

LAWN CARE AND PROPERTY MAINTENANCE SERVICES

ABORIST SERVICES

27. Lawn and Grounds Clearance You must remove obstructions and debris in advance of us commencing the Services to avoid extra charges and to enable us to perform the Services when scheduled, including but not limited to: • Toys and sports equipment; and • Sticks and branches; and • Dog Faeces; and • Parked Vehicles; and • Any other items, equipment or debris that may obstruct the Services.

28. Securing 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.

29. Tree Ownership You warrant that all trees to be worked on are owned by you or, where owned by a third party you can supply us with evidence of consent of the tree owner to the proposed works or Services. You indemnify us for any damages or costs incurred from any mistaken ownership.

30. Neighbour or Adjacent Landowner Liaison You are responsible for notifying and liaising with all neighbours and adjacent landowners or occupiers of intended works. We will not be responsible for neighbour disputes arising for lack of notice.

31. Tree Removal Consents You must make your own enquiries relating to the requirement of any consents required to enable us to perform the Services. This includes consent where the trees are on a boundary, are co-owned, are subject to any local authority protection or you are a leaseholder of the land. You must arrange for all such consents to be obtained at your sole cost.

32. Electricity Lines Close Approach Consents Where requested, you must obtain and supply any close approach consent from an electricity lines distribution company where power lines are near the area we will work in or around unless we have expressly agreed to perform this as your agent in our scope of works.

33. Disposal of Stump Grinding and Debris Unless specifically included in our scope of Services, all stump grindings and debris shall be left at your Site and you shall be responsible for its disposal at your cost and expense.

DESIGN SERVICES

FEES AND DEPOSITS

34. Consultation Appointments We operate a booking system for our design consultation appointments. We may limit consultations to specific dates and times and will notify these to you.

35. Re-scheduling Appointments We require 48 hours’ notice of a re-scheduled appointment. You may re-schedule directly or via any online booking or scheduling tool we offer to you.

36. Missed Consultation Appointments Where you have not re-scheduled or cancelled an appointment within 48 hours prior, a Missed Appointment Fee may apply.

37. Maximum Consultation Visits Our design services may be subject to a maximum number of consultation visits. This is detailed in our Quote/Cost Estimate. Where you require additional visits that exceed this maximum, an additional consultation fee may apply.

38. Design Approver We require you to nominate a single individual who has authority to give instructions or approval to us. You understand and accept that we will not consider another person to have provided final approval.

39. Alternative Approver If you wish to nominate an alternative person to give us instructions or approval on your behalf, you must provide us with written confirmation of their contact name, status and basis on which approval or instructions can be accepted by us.

40. Maximum Client Reviews Your Quote/Cost Estimate will specify the number of client review opportunities of a Concept or Detailed Design (Working Concept). We reserve the right to decline any additional client review input or feedback after this maximum number has been reached.

41.Client Response Times You agree to respond to us within 5 (five) Business Days of us seeking a request for your feedback on a Working Concept (Client Feedback).

42. Deemed Acceptance In the event we have not received any response from you at the expiry of the 5 (five) Business Day period, we will deem that you have accepted the Working Concept and have no further feedback or input. In this event, no further revisions or late edits will be accepted (except at our sole discretion).

44. All Quote/Cost Estimates Supplied as a Cost Estimate by Default Unless our Quote/Cost Estimate specifically states that we offer a fixed price for the Services, all of our Quote/Cost Estimates are issued as an estimate of the costs for the specific scope.

45. Deposit and Time for Payment of Deposit Our Quote/Cost Estimate will state if a Deposit is required to confirm the booking of our any of our Services.

46. Design Services Fees Commencement Fee We may charge a commencement fee to confirm acceptance of our design Services prior to commencing detailed design and sourcing.

47. Repeat Scheduled Services These services are performed on request and are subject to the following terms: a. Minimum Rates Apply these services are subject to a minimum fee with any additional time over the agreed minimum fee chargeable at our hourly rate (which may be in increments of 30 minutes); and b. Rates May Vary our call out rates may vary depending on the service and its complexity; and c. Higher Rates May Apply where a service is requested, out-of-hours, weekend or public holiday rates may apply and will incur a higher rate than our standard hourly rate; and

d. Materials are Charged Separately materials may be charged in addition to your call-out fee.

48. Standdown Fees Where we plan to attend your premises and have supplied reasonable notice in advance, and you fail to make the necessary arrangements to enable us to perform our Services, we reserve the right to apply a fee for us or our personnel to be stood down.

49. Pricing Validity for Goods and Materials Any quote for Goods and/or materials is valid for the period we state in our Quote/Cost Estimate or any communication relating to your selections (Materials Pricing Validity Period). After the expiry of the Materials Pricing Validity Period, we may need to re-quote for the most up-to-date price. Any increased costs for Goods and/or materials after the expiry of the Materials Pricing Validity Period shall be passed onto you.

INVOICING

VARIATIONS

50. Final Invoiced Amounts May Vary from Estimate Where the cost to perform the Services are estimated, you shall be invoiced for the actual hours incurred to perform the Services up to the date of the applicable invoice. 51. 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).

52. Invoices May Be Progress Payments We may invoice on one or more of the following bases depending on the nature of the Services:

a. Specific Frequency we may invoice for actual hours and materials incurred on a set frequency such as weekly, fortnightly or monthly; or b. Stages We may invoice you at various stages of the project, including but not limited to:

• concept design; and • working concept; and • final detailed design; and • drawings release; and • construction; and • planting; and

• materials ordering; and/or • such other agreed frequency or interval for specified milestones or stages of the Services; or c. Percentages We may invoice you in specified percentages at specific dates.

53. Retentions No retentions shall apply on Services performed under these terms.

54.No Deferment of Final Balance You confirm and acknowledge that you cannot defer the payment of the final balance to be later than the Due Date stated in an invoice unless we agree to this as a Variation.

55. 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.

56. Invoices as Payment Claims Where this is a “construction contract’ as defined in the Construction Contracts Act 2002 (CCA), invoices may be issued as a payment claim in accordance with Part 2 of the CCA.

57. 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.

58. 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.

59. Overdue Amounts Owing If you do not pay an Amount Owing by the Due Date and you have not issued us with any valid payment schedule or any later date we have agreed in writing, this becomes an Overdue Amount Owing. After a period of 5 (five) Business Days, we shall have the right to apply late payment interest at 5% (or any higher rate published on our invoices 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).

60.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 full solicitor-client legal fees on an indemnity basis, debt collection fees and internal administration fees.

61. 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.

62. 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. Accuracy of plans where any additional measurements are required to be obtained by us to verify the accuracy and suitability of any plans or drawings supplied to us by you (or any representative) after you have supplied us with consented or approved plans; and/or b. Revisions to plans where a change to the plans or specifications is made by you or any representative authorised by you (including architects, structural engineers, or other contractor you direct us to take instructions from); and/or c. Materials changes where a change to selection of materials, is required or requested after you have accepted our Quote/Cost Estimate whether or not the Services have commenced; and/or d. Site extension where an extension to the Site area is requested that extends the sqm on which we have provided our Quote/Cost Estimate; and/or e. Unsuitable ground encountering unsuitable ground or overhead obstructions that prevent works; and/or f. Dewartering any mains, ducts or other conduits or channels that may flood or allow water ingress as a result of the works; and/or

g. Co-ordination Separate Contractors where our scope of Services has not included project management services for the construction phase of your project, and we are required to perform co-ordination with your Separate Contractors; and/or h. Change to commencement date where a change to the date for commencement agreed upon in our Quote/Cost Estimate is requested; and/or i. Costs fluctuations where the cost of materials proposed as part of our design 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 j. Materials substitutions where there is a requirement for us to substitute one or more materials or fixtures selections forming part of our design due to supply chain and/or procurement issues and the substitute material or selection agreed upon is a higher cost to the price indicated or estimated in our Quote/Cost Estimate; and/or k. 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.

63. All Rights Reserved to Decline a Variation Where a Variation has been requested by you directly to extend scope or decrease a timeframe, 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.

64. 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.

WARRANTIES

INTELLECTUAL PROPERTY

65. Consumer Guarantees Act The provisions of the Consumer Guarantees Act 1993 (CGA) shall apply to the Goods and Services, unless you are a customer in trade or business and the Services acquired from us under this Contract are for business purposes in which case the CGA shall not apply.

66. Delay Fees Unless permitted by law, you are not entitled to claim any delay fees, liquidated damages or other costs or expenses related to any delay in the performance of our Services.

67. Defective Goods or Services The following shall apply subject to any exclusions or limitations in these terms or permitted at law: a. For Goods where you inform us within three (3) Business Days of delivery or installation (time being of the essence), we will, at our sole election, inspect the Goods to assess if a defect is present and either replace or repair the defective Goods or liaise with the manufacturer where a third-party manufacturing or product warranty applies; and b. For Workmanship Where following practical completion of the Services of any alleged defect, error, omission, shortage in quantity, damage or failure to comply with our scope or plans or description, please inform us within five (5) Business Days following which we shall inspect or review the Services and where a defect is present, we shall remedy any defective workmanship by a rectification or re-performance of the Services at no cost.

68. Guarantees at Law These guarantees are in addition to and does not affect any implied warranties under ss 362l to 362k of the Building Act 2004 (only where that Act applies to the applicable customer type) and under the Consumer Guarantees Act 1993 and is subject to the exceptions in each act.

69. Manufacturer Warranty Claims After the completion of the Services and where there is a manufacturer product warranty still available for any component part of the Goods included as part of the Services, you must liaise with the manufacturer for the duration of any guarantee period offered by them.

70. Exclusion of Warranties Any warranty or guarantee owed by us to you under relevant laws or under this Contract will not apply where:

a. accepted industry tolerances are present; and/or b. a fault or defect is not notified to us within the applicable notice period; and/or c. a fault or defect is a result of: (i) something done by you or someone else, and not by us or our approved secondary consultants; and/or (ii) you or your representatives not maintaining any resulting landscape structure or dwelling (where applicable) in a sound and reasonable condition in such a way that it caused the defect; and/or (iii) something beyond human control that occurred after completion of our Services or works, for example an extreme weather event or natural disaster or natural event such as an earthquake, lahar or tsunami that 3causes the defect; and/or (iv) any part of the Goods installed as part of the design Services being misused, abused, neglected, or damaged after installation; and/or (v) the Goods not being maintained in accordance with any care or guarantee documents supplied by us to you; and/or (vi) the Goods being repaired, modified, reinstalled, or repositioned by anyone other than us or our approved contractors. (vii) where you supply any fittings or materials for your Services, these are not guaranteed by us and we shall not be liable for any delays or additional costs and expenses incurred by you due to incorrect dimensions, colours, finishes or any other reason that results in your customer supplied materials not being suitable or fit for purpose. To avoid doubt, customer supplied materials are not ‘Goods’ under this Contract.

71. Accepted Industry Tolerances You agree that the following are accepted tolerances within our industry sector and will not constitute a breach of any quality guarantee we offer to you under this Contract or at law:

a. alteration of colour, texture, size or content of individual rocks, stones, barks, shells or soil types contained within a batch or volume order; and/or b. broken or misshaped variations among any batch or volume order of materials; and/or c. product variations and changes in aggregate due to weathering, seasons or different quarry seams; and/or d. timber grain variances in timber-based product varnishes, staining or other timber-based finishes; and/or e. shrinkage, swelling, cracking and warping of timber-based goods or structures due to moisture, temperature fluctuations and weathering; and/or f. cracking of concrete surfaces due to standard industry accepted tolerances; and/or g. hairline cracking of paving and grout; and/or h. transplanting shock to plants, trees and shrubs caused by extreme temperatures; and/or i. any other tolerances stated in any industry standard issued in connection with the Services.

72. Definitions The following terms shall have the following meanings in this section: “Pre-Existing Intellectual Property” This means Intellectual Property rights owned by either of use prior to our engagement and contained in any documents, drawings, designs, or other materials provided to us for the purposes of providing the Services.

This includes, but is not limited to, concept drawings supplied as examples, design methodologies, processes, templates, or other materials that have not been prepared exclusively for your use.

“New Intellectual Property” This means all Intellectual Property rights collated, collected, prepared or created by us (or persons acting on behalf of us) in providing the Services. This includes all site-specific drawings, designs, documents, planting plans and other materials or documents in any form (electronic, hard copy, print, computer automated design). This excludes Pre-Existing Intellectual Property which remain under the ownership of their original owner(s).

73. Ownership of Intellectual Property The following shall apply in relation to the intellectual property:

a. All New Intellectual Property is Owned by Us All New Intellectual Property held in any medium, whether electronic or otherwise, and forming part of the Services, shall be owned by us. We shall retain the right to commercialise, exploit or use in any manner the New Intellectual Property that we own. b. Pre-Existing Intellectual Property This shall remain the property of its owner.

74. Warranty Relating to Third Party Infringement You confirm that any Pre-Existing Intellectual Property you supply to us in the form of drawings, planting plans, designs or other documentation will not infringe any Intellectual Property or other rights of any third party.

75. Licence to Use New Intellectual Property We grant you a non-exclusive, non- transferable licence to use the New Intellectual Property for the specified site to which the New Intellectual Property relates. This licence remains valid subject to you complying with all of your obligations under these Terms, including those in respect of payment of fees and other expenses.

76. No Commercial Use, Sharing or Re-Use of Our Pre-Existing Intellectual Property or New Intellectual Property You agree and accept that the following restrictions apply in respect of our Pre-Existing Intellectual Property or New Intellectual Property: a. you may not share it with other landscape designers; and/or b. you may not replicate it for other sites; and/or

c. You may not use it for your own commercial purposes; and/or d. You may not alter it for alternative purposes.

77. Copies of Design and Drawings Upon termination or completion of the Services, and subject to payment of any fees, we will provide you with one copy of any planting plans, design plan or drawing prepared as part of the Services, in hard copy or non-editable (e.g., PDF) electronic format. We will not be required to provide the plans or drawings in an editable electronic format.

78. Where Services are Terminated Prior to Completion If the Services are terminated prior to their completion, you shall only be entitled to use the New Intellectual Property that has been created as at the time of termination. We shall be under no obligation to complete any design Services where this Contract is terminated prior to completion of a detailed or final design.

79. Using New Intellectual Property with another Landscape Architect Designer Where you wish to use the New Intellectual Property for additions or alterations to the drawings, design or materials that shall be provided by someone other than us, you must obtain our prior written consent. We reserve all rights to use our sole discretion when deciding on consent and we may request a royalty for such re-use, at a rate to be agreed.

80. Re-Use of the New Intellectual Property Any re-use of the New Intellectual Property (for example to reproduce the project on a different site) requires our prior written consent. We reserve all rights to use our sole discretion when deciding on consent and we may request a royalty for such re-use, at a rate to be agreed.

RISK IN GOODS

82. Risk in Goods Passes to You on Completion All risk of damage or loss to any Goods procured by us on your behalf as part of the Services shall pass to you on delivery of the Goods or completion of the Services (including where Goods have been installed at your Site as part of the Services). The responsibility to insure those Goods shall pass to you immediately on delivery or installation, whichever is earlier.

TERMINATION OF SERVICES

LIMITATION OF OUR LIABILITY

82. 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 Deposit or Commencement Fee to confirm acceptance of our Services; and/or b. you fail to pay any sums that have become an Overdue Amount Owing; and/or c. 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 d. we or our approved contractors are denied access to or are unable to access the Site to carry out the Services for whatever reason. To avoid any doubt, where we or our approved contractors 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.

83. Termination for Convenience If you elect to terminate this Contract prior to commencement of the Services where there is no default by us, you must inform us in writing with no less than ten (10) Business Days’ notice prior to the scheduled date for commencement of the Services and the clauses below in relation to sums for Amounts Owing shall apply.

84. Amounts Owing for Services up to Termination Date All Amounts Owing for Goods or Services (as applicable) shall be deducted from a deposit paid or where there is a balance remaining, become immediately due and payable if either party exercises theirrights to terminate the Services, including (but not limited to):

a. Services which have commenced but have not been completed up to the date of termination; and/or b. Services already performed and completed up to the date of termination; and/or c. Custom Materials already ordered to your specifications as at the date of termination which cannot be restocked. Following receipt of the outstanding balances owing for Custom Materials, these shall be delivered to you (with any applicable delivery or freight fee added to your invoice).

85. Exclusion of Our Liability To the fullest extent permitted by law, and subject to our obligations under this Contract or under any applicable law that imposes guarantees on us, we exclude all liability to you for:

a. 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 Goods and Services; and b. the failure to perform by any Separate Contractors engaged by you directly to perform construction or other Services in respect of your project.

86. Damage to Underground Services You warrant that without limiting our other rights and remedies, you shall indemnify and hold us harmless against and from all costs and expenses (including reasonable legal costs) in relation to any claim or proceeding brought against us in respect of any damage caused to underground services during the performance of our Services.

87. 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

88. 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).

89. 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 Parties may seek mediation, adjudication or other dispute resolution options.

90. Obligations Continue If there is a Dispute, each Party will continue to perform its obligations under this Contract as far as practical given the nature of the dispute.

91. Taking court action Each Party agrees not to start any court action in relation to a dispute until it has complied with the process described in this clause, unless that Party requires urgent relief from a court.

92. You Must Still Pay Amounts Owing Not withstanding 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

GENERAL

93. 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

94. 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.

95. 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.

96. Entire Agreement This Contract sets out the entire agreement between the parties.

97. Construction Contracts Act Where the context requires, this Contract is a construction contract as defined under the Construction Contracts Act 2002.

98. Signing Not Required It is not necessary for this Contract or any Quote/Estimate document to be physically or electronically signed.

99. 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.

Proudly Serve North Shore & Hibiscus Coast For 15 Years

Your Local Landscaping Specialists

  • Ace of Spades Ltd
    29 Rata Road, Stanmore Bay, Auckland
  • Areas we service
    North Shore & Hibiscus Coast
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