Terms and conditions
The Contractor Obligations
1. The Contractor will:
(a) Diligently and with reasonable care and skill perform the contract works as set out in Schedule 2 in accordance with these terms and conditions and meet any obligations as set out in Schedule 3;
(b) Provide the labour and materials required for the contract works except as expressly provided in Schedule 1 clause 5 which sets out any materials to be provided by the Client.
The Client’s Obligations
2. The Client will:
(a) Accept the works as set out in Schedule 2 and meet all payment and other obligations in accordance with these terms and conditions.
(b) Ensure that if other contractors are to be allowed access to the Site during the term of this contract, this will be by agreement with the Contractor, and the Client will ensure that such other contractors are co-ordinated to allow maximum continuity of the works by the Contractor and cause as little inconvenience or delay as possible.
(c) To provide such materials and/or assistance to, the Contractor as is specified in Schedule 1, clause 5.
(d) At the Contractor’s request point out and mark the boundaries of the Project Site and acknowledges that where he/she does so, the Contractor will rely on his/her representation as to the boundaries of the Project Site. The Client will indemnify the Contractor and will keep him/her fully and effectively indemnified against any cost, claim, charge, loss, liability, damage or expense which the Contractor may suffer or incur as a result of the Contractor’s reliance on the Client’s representation as to the boundaries of the Project Site.
(e) Ensure that soil preparation and soil conditions are suitable for any planting and that sufficient drainage is installed for the proper functioning of the garden. All such work is to be done by the client in accordance with accepted trade practice and to comply with all legislative, regulatory and Council requirements and NZ Standards and NZ Building Code.
3. The Client warrants that:
(a) He/she is the owner of the Site or is authorised by the owner of the Site to carry out the works on the Site; and
(b) The Contractor will have free and unimpeded access to the Site for the purpose of carrying out the works, and that (except as expressly set out in Schedule 1 Clause 7) the Site will be cleared of all debris prior to commencement of the works.
Commencement and Completion
(a) The Client will give the Contractor access to the Site on start of the works. The Contractor will use all reasonable endeavours to ensure that the works commence within 5 days of access being granted and will give the client an indication on the duration of the project. To this end, the Contractor will advise the Client of any decision or instruction which needs to be made or given prior to the Contractor being able to proceed with the works.
(b) The Client will grant an extension of time for completion of the works if the Contractor is fairly entitled to an extension by reason of a variation or additional work in accordance with clause 8 or wet weather or industrial action or the late supply of materials, or a breach of this contract by the Client or unfavourable soil conditions which may affect the quality of the work, or any other circumstances not due to the fault of the Contractor.
(a) The deposit, as detailed in the Payment Schedule of Schedule 1, forms part of the Contract Price. It is payable by the Client to the Contractor on the signing of the contract.
(b) Notwithstanding clause 4(a), the Contractor has no obligation to commence work until the deposit has been paid.
(c) The deposit must be paid into the Contractor’s bank account and will be held by the Contractor on trust for the Client until work commences, in order to meet the obligations under clause 5(d). Once work commences, the deposit becomes the sole property of the Contractor and is no longer held on trust for the client.
d) If the parties agree, for whatever reason, not to proceed with the contract work before work commences, and after the deposit has been paid then;
(i) the deposit is refundable in full to the Client if the Contractor has not incurred any costs, expenses or time expended in relation to the Project; and
(ii) to the extent any costs, expenses or time has been expended by the Contractor, that total will be deducted from the deposit and any balance remaining (if any) will be refunded to the Client.
(e) Nothing in this clause shall prevent the Contractor for seeking damages and/ or costs in excess of the deposit paid for a wrongful cancellation of these terms and conditions.
(a) The Client will pay the Contractor in full without deductions of any kind (whether by way of set off, counterclaim or other equitable or lawful claim or otherwise) the amount at the times and in the manner set out in Schedule 1.
(b) Where this Agreement has been entered by an agent (or a person purporting to act as agent) on behalf of the Client, the agent and Client will be jointly and severally liable for payment of all accounts due to the Contractor under this contract.
(c) The Client will pay the account in full on, or before, the due date. Late payment will constitute a default and the Client will pay default interest on overdue amounts from the date payment falls due to the date of payment at the rate set out in Schedule 1. In addition, the Client will pay all costs (including legal costs on a solicitor/client basis) incurred by the Contractor to recover the debt.
(d) The Contractor may charge and the Client will pay any additional costs as set out in Schedule 1. The Contractor will maintain records that clearly identify time and expenses incurred.
(e) If the Site is sold or in any way disposed of prior to all payments being made to the Contractor the Client will hold the proceeds of such sale or disposition in trust for the Contractor to the extent that any monies remain owing under this contract.
Ownership and Risk
(a) Ownership of the materials supplied by the Contractor will remain with the Contractor and will not pass to the Client until all amounts owing by the Client to the Contractor in respect of the materials or otherwise have been paid for in full and all of the Client’s other obligations in respect of the materials or otherwise have been met. Until ownership of the materials passes to the Client, the client agrees to:
(i) hold the materials on trust for the Contractor as his/her bailee.
(ii) store the materials safely at the Client’s cost so that they can be readily identified as belonging to the Contractor and will not relinquish possession or remove the materials from his/her premises.
(iii) immediately inform the Contractor of any attempt by any third party to exercise remedies against the materials or of any circumstances that might jeopardize the Contractor’s rights or interest in the materials.
(iv) give the Contractor the right to inspect the materials or any part of them at all reasonable times.
(v) not do or allow to be done anything that might contribute to a deterioration in the value of the materials or otherwise adversely affect the Contractor’s rights or interest in the materials.
(vi) return the materials if requested to do so by the Contractor following non-payment of any amount owing by the Client to the Contractor or non-fulfilment of any of the Client’s other obligations to the Contractor, without limiting any other right the Contractor may have.
(b) If the materials have not been paid for in full by the due payment date or are at risk (as defined in PPSA), the Contractor may (in addition to any other rights but subject to the Credit (Repossession) Act 1997 enter the Client’s premises (or other premises to which the Client has access and where the materials are stored or where the Contractor reasonably believes the materials are stored) at any time, without notice, and search for and recover the materials and may resell the materials or retain the materials for the Contractor’s own benefit, without incurring any liability to the Client or any person claiming through the Client. The Client may not revoke the permission granted in this sub-clause.
(c) Notwithstanding that ownership of any materials may remain with the Contractor, all risk in respect of such materials will pass to the Client upon delivery. Delivery will be deemed to have occurred when the materials arrive at the Site. The Client will insure (and keep insured) the materials for full replacement value against all risks of loss or damage in the Client’s and Contractor’s name for their respective interests. The Contractor may, at any time, request a copy of the policy of insurance and the Client will promptly provide the same to the Contractor.
(d) The Client will remain liable for all materials which have been ordered for the purposes of the works notwithstanding that the Client has not taken delivery of the materials and/or the contract has been terminated for any reason whatsoever.
8. If the Client requires additional works outside and/or variations to, the scope of work as set out in Schedule 2 then;
(a) The Contractor will provide an hourly rate or fixed price for the variation and/or additional work;
(b) The Contractor will advise of any time extension required for the completion of the works;
(c) If the Client accepts the price and the time extension, then the variation and/or additional works and the agreed price and time extension will be recorded in writing and signed by the Client and the Contractor;
(d) Payment for the variation and/or additional service will be in accordance with Schedule 1;
(e) Where any such variations are made to and/or additional works are added to the works by the agreement of the parties in accordance with clause 8(a) – (d) of this contract they will be deemed to be incorporated into and be subject to the terms and conditions of this contract.
(f) Where the parties do not reach agreement in accordance with clause 8(a) – (d) of this contract, this contract will remain unchanged and will continue to be binding on both parties.
(a) Where the Contractor encounters unforeseen difficulties in respect of the Site, including such matters as hidden rock, underground services, fill or toxic materials (which could not previously have been detected by the Contractor by a visual inspection of the Site), the Contractor shall immediately consult the Client and;
(i) the parties may negotiate to determine the extent of the additional work required, and any resultant amendments to the price and completion date of the works directly resulting from additional costs incurred and such agreed amendments are to be treated as variations and recorded and paid for in accordance with Clause 8; or
(ii) either party may immediately terminate the contract, whereupon the Client will pay to the Contractor the value of all works undertaken and materials ordered at such date.
Underground and Overground Services
(a) The Client will arrange for the searching of records to determine the existence and position of pipes, cables and other utilities on or about the Site, and the position of such utilities will be indicated in the Contract Documents as accurately as the information available permits. For the purposes of this clause, the term “utilities” will include any legal survey marks, as defined in the Regulations made under the Surveyors Act 1966, and which at any time have been set in or on the ground for the purposes of survey.
(b) The Contractor will be responsible for physically locating the position of such utilities and will arrange with the controlling authorities for any necessary exploratory work, location, protection, isolation, offsetting, reinstatement or alteration required. The Contractor shall record any alteration which it makes to such utilities.
(c) The Contractor will be responsible for protecting all utilities whether indicated or not and for arranging their reinstatement or the repair of any damage resulting from his/her operations.
(d) Where a utility is not indicated or is not substantially in the position indicated in the Contract Documents, any extra work in physically locating its position or altering or protecting or offsetting or reinstating it will be paid for by the Client.
(a) The Contractor will remain public liability insurance for the amount specified in Schedule 1 Clause 9.
Compliance with applicable laws and site regulations
(a) The Client is to obtain all relevant permits and is to pay for such permits.
(b) If the Client is unsuccessful in obtaining any permit due to circumstances beyond the control of the Client:
(i) the parties may negotiate to determine any modifications required, and any amendments to the price and completion date directly resulting from any additional costs incurred or additional time taken; or
(ii) either party may immediately terminate the contract, whereupon the Client will pay to the Contractor the value of all works undertaken and materials ordered at such date.
(c) Unless expressly stated otherwise in Schedule 1 Clause 10, all Local Body consent and application fees and other Local Body costs, charges and deposits are the responsibility of the Client. The Client shall comply with all requirements as specified in the documents approved and stamped by the Local Body.
(d) The Contractor has not and will not, during the term of this contract or at any time after it, assume any obligations as the Client’s agent or otherwise, pursuant to the Health and Safety in Employment Act 2016.
Privacy Act 1993
(a) The Client agrees that from time to time, the Contractor may collect and use information that he/she collects and holds for purposes relating to the works, the application for credit, the provision of credit, credit assessment and debt recovery (including collecting information from, and disclosing information to, credit reporting agencies, debt collection agencies, trade referees, potential and existing clients of the Contractor and other third parties), to register any security interest, to provide marketing materials to the Client and to provide examples of the Contractor’s work to potential and existing clients. Information disclosed by the Contractor to credit reporting agencies will be disclosed by the Contractor on the basis that it will be held and used by such agencies to provide credit reporting services (including supplying the information to other customers who use their services). Under the Privacy Act, individuals have access to, and correction of, their personal information. Personal information collected by the Contractor will be held by him/her at the address specified in this contract. To request access to your personal information email the Contractor at the contact details in this contract.
(b) The Client authorises the Contractor to collect and use information from any person or entity for any of the above purposes, and such person or entity to disclose information to the Contractor, and the Client also authorises the Contractor to disclose information to any person or entity for any of the above purposes and such person or entity to collect and use information from the Contractor.
14. The Contractor will retain intellectual property/copyright in all drawings, specifications and other documents prepared by the Contractor. The Client shall be entitled to use them or copy them only for the works and the purpose for which they are intended. The ownership of data and factual information collected by the Contractor and paid for by the Client shall, after payment, lie with the Client. The Client may reproduce drawings, specifications and other documents in which the Contractor has copyright, as reasonably required in connection with the project but not otherwise. The Client shall have no right to use any of these documents where any or all of the fees and expenses remain payable to the Contractor.
(a) To the fullest extent permitted by law, the Contractor will not be liable for:
(i) loss caused by any factor beyond the Contractor’s control;
(ii) failure to deliver any materials by any specified dates and/or failure to complete the works by the Completion Date (including any extensions of time);
(iii) the loss of or damage to materials while in transit (whether such loss or damage results from the Contractor’s negligence or default or otherwise howsoever);
(iv) deterioration of materials as a result of exposure to the elements, after delivery;
(v) any act or omission by the Client’s subcontractor or any third party;
(vi) materials that have been tampered with or modified by the Client;
(vii) materials that have been stored in an improper manner by the Client.
(b) To the fullest extent permitted by law the Contractor will have no liability (whether statutory, in contract or tort (including negligence), or howsoever) to the Client or any of the Client’s agents or employees for any physical, or special damage, direct loss, incidental loss, loss of profits (whether direct or indirect) economic loss of any kind (including loss of profits and expectation loss), or any other loss or costs (including legal costs on a solicitor/client basis) caused or contributed to by the or any of his/her agents or employees in respect of any works or materials supplied.
(c) To the fullest extent permitted by law the Contractor excludes liability for business to business transactions under the Consumer Guarantees Act, Fair Trading Act and any other applicable consumer law. Where the Client is a “consumer” under the provisions of the Consumer Guarantees Act, the Consumer Guarantees Act is to apply.
(d) Subject to the above and to any express warranties given by the Contractor or any manufacturer of the materials in writing, all conditions, warranties, descriptions, representations and statements as to fitness or suitability for purpose, workmanship, tolerance to any conditions, merchantability or otherwise, advice recommendation or information express or implied are expressly excluded to the fullest extent permitted by law.
(e) To the fullest extent permitted by law, the Contractor has no responsibility or liability for any dangerous good(s) or any contaminant, ozone depleting or hazardous substance in or emitted by any materials.
(f) The Contractor’s liability for shortages in quantity and loss consequential to shortages in quantity is, subject to the application of the Consumer Guarantees Act, limited to making up shortages.
(g) Subject to any limitation on the Contractor’s liability within these terms and conditions or which may be permitted by operation of the law and except as expressly provided in clause 17 the Contractor’s total liability whether in tort (including negligence), contract or otherwise for any loss or damage or injury arising directly or indirectly from any breach of the Contractor’s obligations, is limited to, at the Contractor’s option:
(i) refunding the contract price; or
(ii) paying the actual loss or damage suffered by the Client.
(h) Except as expressly provided in clause 17, no claim will be allowed unless the claim is notified to the Contractor within 7 days of completion of the works as set out in Schedule 2.
(i) No failure or omission by either party to carry out his/her obligations under this contract (except in relation to obligations to make payments) will be a breach of this contract or give rise to any claim against the party in question if such failure or omission arises from any cause reasonably beyond the control of that party.
(a) The Client acknowledges and agrees that the materials (including, without limitation, paving tiles, laid insitu concrete, coloured concrete, and exposed concrete) may vary in colour from batch to batch, which means that there may be a variation in colour between any sample, description, photo or specification and the materials provided. Accordingly, the Client acknowledges and agrees that, to the fullest extent permitted by law, any such variation in colour in any materials will not constitute a failure of the materials to correspond with the sample, description, photo or specification and that the Client may not reject the materials and/or withhold payment of the price solely because of any such variation in colour.
(b) In respect of materials which are defective or are not in compliance with the Specification in Schedule 2 the Contractor excludes his/her liability to the fullest extent permitted by law and to the extent that liability cannot be excluded the Contractor’s liability for materials is limited to the amount if any he/she receives from the Manufacturer/Supplier.
17. Plants and Lawns
(a) The Contractor will plant in accordance with accepted horticultural practice and will provide instructions to the Client on how to maintain any planting carried out.
(b) Any relocation of the Client’s existing plants is undertaken on a best endeavours basis and the Contractor has no liability for the continued health and viability of such plants.
(c) Subject to the exclusions in clause 17(d) the Contractor will;
(i) Replace any evergreen trees supplied and planted by the Contractor if they are found dead or dying within 3 months of planting;
(ii) Replace any deciduous trees supplied and planted by the Contractor that have not come into leaf during the first growing season;
(iii) In the event of any shrub or lawn death, assess the shrub or lawn and at the Contractor’s sole discretion, may replace the shrub or replace the lawn, in whole or in part, at the Contractor’s cost
(d) The obligations in clause 17(c) are subject to the following exclusions;
(i) The Contractor will have no liability for any plant death resulting from exposure to drought conditions, high winds, abnormal winter conditions, under-watering, over-watering, adverse soil conditions, over-fertilising, pest or stock damage, theft, general damage, vandalism or any other condition or act over which the Contractor has no control.
General Security Interest
(a) To secure payment, first, of the purchase price for materials until such amount is paid in full, and secondly, of all the other Secured Money, and to secure the performance of all other obligations owing by the Client to the Contractor the Client grants a Security Interest in all of its personal property (as defined in the PPSA), which includes, without limitation, the materials supplied to the Client, and a fixed charge over all of its real property, wherever situated (such personal property and real property is, together, the “Secured Property”).
(b) The Client must not consent to or enter into any agreement which permits any supplier or other person to register a Security Interest in respect of any collateral subject to the Contractor’s Security Interest, including, without limitation, the materials (whether an accession or otherwise), which ranks in priority to the Contractor’s rights as first ranking security holder.
(c) The Client acknowledges that it has received value as at the date of first delivery of materials under these terms and conditions of contract and that nothing in these terms and conditions of contract is an agreement that a Security Interest created herein attaches at a later time than the time specified in section 40(1) of the PPSA, or an agreement to subordinate a Security Interest under these terms and conditions of contract in favour of any person.
(d) The Client must not change its name, address or contact details without providing the Contractor with at least 30 days prior written notice. The Client must immediately notify the Contractor if it intends to, or become aware of any steps to, appoint an administrator or liquidator.
(e) The Client waives its rights under the PPSA to receive a copy of any verification statement, financing statement or financing change statement and unconditionally and irrevocably agrees that;
(i) to the maximum extent permitted, the Client will have no rights under or by reference to sections 114(1)(a), 116, 120(2), 121 125, 129, 131 133 and 134 of the PPSA;
(ii) where the Contractor has rights in addition to, or existing separately from, those in Part 9 of the PPSA, those rights will continue to apply and, in particular, those rights will not be limited by section 109; and
(iii) the Client will not consent to or enter into any agreement to which permits any supplier or other person to register a Security Interest in respect of the materials (whether an accession or otherwise).
(f) The Client must not:
(i) give to the Contractor a written demand, or allow any other person to give to the Contractor a written demand, requiring the Contractor to register a financing change statement; or
(ii) lodge a change demand or allow any other person to lodge a change demand, in each case in relation to a financing statement registered by the Contractor under the PPSA.
(g) The Client must not allow any other person to enter into or accept, and the Client must not enter into or accept, a financing change statement in relation to a financing statement registered by reference to such other person under the PPSA.
(h) The Client will upon demand pay all of the Contractor’s expenses and legal costs (including costs on a solicitor client basis) in relation to or in connection with the registration and maintenance of the Contractor’s Security Interest.
Security, Right to Caveat and Register a Mortgage
(a) The Client charges in favour of the Contractor, as security for his/her obligations to the Contractor, all rights, title and interest (whether a beneficial or legal interest owned jointly or alone, and as trustee or otherwise) in any property held by the Client either alone or jointly with anyone or acquired by the Client now or in the future.
(b) For the purposes of this clause, “property” shall include property owned by the beneficiaries of any Trust where materials have been supplied to the property and may have become affixed to and/or formed part of any structure on that property (which may include above or below ground services to the property). In signing this contract the trustee(s) acknowledge that they have the express authority to bind the beneficiaries to this obligation, and that the provisions of Section 24 Property Law Act 2007 (or its amendments) are satisfied, and that the Designer is not required to make any further investigation as the Trustee(s) authorisation to bind the beneficiaries to this obligation.
(c) The creation of the charge is the creation of an agreement to mortgage which will mean that at the Contractor’s discretion he/she will be entitled to register a mortgage (“the Mortgage”), such Mortgage to be in the form of an All Obligations Auckland District Law Society Memorandum of General Terms and Conditions (or at the Contractor’s discretion any such equivalent form).
(d) The Client specifically authorises the Contractor to lodge the Mortgage for registration or a Caveat against any such property and appoints the Contractor to be the Client’s lawful attorney for this purpose to sign in his/her name and to do all things necessary to give effect to this clause.
20. The Contractor may subcontract out the performance of any or all of his/her obligations under this contract without the Client’s prior consent.
21. If the Client;
(a) fails to pay, or in the Contractor’s opinion is likely to fail any amount due in accordance with Schedule 1;
(b) ceases or threatens to cease business;
(c) is unable to pay any debts as they fall due or is declared insolvent or bankrupt;
(d) makes an arrangement or compromise with creditors;
(e) has any step taken to dissolve it;
(f) has a liquidator, manager, administrator or receiver (or any similar person) appointed to it or its property;
(g) has any analogous event occur; and/or
(h) breaches its obligations under this contract
then the Contractor may (in addition to and without prejudice to any other remedies he/she may have):
(i) suspend performance of all work;
(ii) terminate this contract immediately; and/or
(iii) require immediate payment of the total contract price.
22. The Client indemnifies and undertakes to keep the Contractor, and his/her employees and agents (“the Indemnified Party”) at all times fully and effectively indemnified against all losses (including but not limited to direct loss, indirect loss, loss of profits (whether direct or indirect), consequential loss), liabilities, penalties, damages, claims, demands, actions, costs, (including legal costs on a solicitor/client basis) charges and expenses which the Indemnified Party (or any of them) may incur or which may be made against the Indemnified Party (or any of them) as a result of or in relation to any breach by the Client of its obligations under this contract.
23. These terms and conditions (including the Schedules) constitute the contract between the parties. No variation to the terms and conditions will be binding on either party unless it is in writing (including an exchange by electronic communication).
24. If there is any conflict between the terms and conditions of contract and the Schedules, the Schedules shall prevail.
(a) Either party may submit any dispute or difference relating to this contract to mediation by giving notice in writing to the other party, requesting mediation, detailing the dispute or difference and nominating a mediator.
(b) If the other party agrees to mediation it must notify the initiating party of its agreement to mediate within 5 working days of receipt of the notice requesting mediation.
(c) If the parties cannot agree on a mediator within 10 working days of the other party’s agreement to mediate, then one will be appointed by the President, for the time being of AMINZ.
(d) If the parties do not agree to mediate the dispute or difference or the parties fail to reach a settlement at mediation then;
(i) if this contract is a Constructions Contract under the Construction Contracts Act 2002 then the Construction Contracts Act 2002 applies and the parties will, where applicable, use the adjudication process; and/or
(ii) the parties submit to the jurisdiction of the New Zealand Courts.