Terms & Conditions

1. Definitions

1.1 “Customer” means the person/s, entities or any person acting on behalf of and with the authority of the customer requesting Tauranga Landscaping to provide the works as specified in any proposal, estimate, quotation, order, invoice or other documentation, and:

1. if there is more than one customer, is a reference to each customer jointly and severally; and
2. if the customer is a partnership, it shall bind each partner jointly and severally; and
3. if the customer is a part of a Trust, shall be bound in their capacity as a trustee; and
4. includes the customer’s executors, administrators, successors and permitted assigns.

1.2 “Contract” means the terms and conditions contained herein, together with any estimate, quotation, order, invoice or other document or amendments expressed to be supplemental to this contract. 

1.3 “Cookies” means small files which are stored on a user’s computer.  They are designed to hold a modest amount of data (including personal information) specific to a particular customer and website and can be accessed either by the web server or the customer’s computer. If the customer does not wish to allow cookies to operate in the background when using Tauranga Landscaping’s website, then the customer shall have the right to enable / disable the cookies first by selecting the option to enable / disable provided on the website, prior to making enquiries via the website.

1.4 “Intended Use” means a product and the use thereof, for which the product is intended to be, or is reasonably likely to be, associated with the works.

1.5 “Non-Conforming Building Product” means building products that are regarded as non-conforming for an intended use if, when associated with a building:

1. the product is not, or will not be, safe; or 
2. does not, or will not, comply with the relevant regulatory provisions; or 
3. the product does not perform, or is not capable of performing, for the use to the standard it is represented to conform by or for a person in the chain of responsibility for the product.

1.6 “Price” means the price payable (plus any Goods and Services Tax (“GST”) where applicable) for the works as agreed between Tauranga Landscaping and the customer in accordance with clause 6 below.

1.7 “Tauranga Landscaping” means Tauranga Landscaping (2024) Limited, its successors and assigns.

1.8 “Works” means all works (including consultation, design, manufacturing, construction, installation and/or maintenance services) or materials supplied by Tauranga Landscaping to the customer at the customer’s request from time to time (where the context so permits the terms ‘works’ or ‘materials’ shall be interchangeable for the other).

1.9 “Worksite” means the address nominated by the customer to which the materials are to be supplied, constructed and/or installed by Tauranga Landscaping.

2. Acceptance

2.1 The parties acknowledge and agree that:

1. they have read and understood the terms and conditions contained in this contract; and
2. the parties are taken to have exclusively accepted and are immediately bound, jointly and severally, by these terms and conditions if the customer places an order for or accepts delivery of any works.

2.2 In the event of any inconsistency between the terms and conditions of this contract and any other prior document or schedule that the parties have entered into, the terms of this contract shall prevail.

2.3 Tauranga Landscaping may amend these terms & conditions from time to time. The customer shall in respect of the supply of any particular works or materials by Tauranga Landscaping be bound by the terms and conditions applicable at the time of sale of those works or materials. A copy of the latest terms and conditions of trade contained herein will be available on Tauranga Landscaping’s website.

2.4 The customer acknowledges that the supply of works on credit is at the sole and absolute discretion of Tauranga Landscaping. A completed a credit application may be requested By Tauranga Landscaping and subject to a credit check may be approved with a credit limit established for the customer’s account.

2.5 In the event that the supply of works requested exceeds the customer’s credit limit and/or the account exceeds the payment terms, Tauranga Landscaping reserves the right to refuse delivery.

2.6 Any advice, recommendation, information, assistance, or service provided by Tauranga Landscaping in relation to works or materials supplied is given in good faith to the customer, or the customer’s agent and is based on Tauranga Landscaping’s own knowledge and experience and shall be accepted without liability on the part of Tauranga Landscaping. Where such advice or recommendations are not acted upon then Tauranga Landscaping shall require the customer or their agent to authorise commencement of the works in writing. Tauranga Landscaping shall not be liable in any way whatsoever for any damages or losses that occur after any subsequent commencement of the works.

2.7 The customer acknowledges and accepts that the supply of materials for accepted orders may be subject to availability and if, for any reason, materials are not or cease to be available, Tauranga Landscaping reserves the right to vary the price with alternative materials as per clause 6.2, subject to prior confirmation and agreement of both parties. Tauranga Landscaping also reserves the right to halt all works until such time as Tauranga Landscaping and the customer agree to such changes. Tauranga Landscaping shall not be liable to the customer for any loss or damage the customer suffers due to Tauranga Landscaping exercising its rights under this clause.

2.8 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 226 of the Contract and Commercial Law Act 2017 or any other applicable provisions of that Act or any Regulations referred to in that Act.

3. Authorised Representatives

3.1 Unless otherwise limited as per clause 3.2, the customer agrees that should the customer introduce any third party to Tauranga Landscaping as the customer’s duly authorised representative, that once introduced that person shall have the full authority of the customer to order any works, and/or any variation thereto, on the customer’s behalf (such authority to continue until all requested works have been completed or the customer otherwise notifies Tauranga Landscaping in writing that said person is no longer the customer’s duly authorised representative).

3.2 In the event that the customer’s duly authorised representative as per clause 3.1 is to have only limited authority to act on the customer’s behalf then the customer must specifically and clearly advise Tauranga Landscaping in writing of the parameters of the limited authority granted to their representative.

3.3 The customer specifically acknowledges and accepts that they will be solely liable to Tauranga Landscaping for all additional costs incurred by Tauranga Landscaping (including Tauranga Landscaping’s profit margin) in providing any works, or variation/s thereto, requested by the customer’s duly authorised representative (subject always to the limitations imposed under clause 3.2 (if any)).

4. Errors and Omissions

4.1 The customer acknowledges and accepts that Tauranga Landscaping shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):

1. resulting from an inadvertent mistake made by Tauranga Landscaping in the formation and/or administration of this contract; and/or
2. contained in/omitted from any literature (hard copy and/or electronic) supplied by Tauranga Landscaping in respect of the works.

4.2 If such an error and/or omission occurs in accordance with clause 4.1, and is not attributable to the negligence and/or wilful misconduct of Tauranga Landscaping; the customer:

1. shall not be entitled to treat this contract as repudiated nor render it invalid; but
2. shall not be responsible for any additional costs incurred by Tauranga Landscaping arising from the error or omission.

5. Change in Control

5.1 The customer shall give Tauranga Landscaping not less than fourteen (14) days prior written notice of any proposed change of ownership of the customer and/or any other change in the customer’s details (including but not limited to, changes in the customer’s name, address, email, contact phone or fax number/s, change of trustees, or business practice). The customer shall be liable for any loss incurred by Tauranga Landscaping as a result of the customer’s failure to comply with this clause.

6. Price and Payment

6.1 At Tauranga Landscaping’s sole discretion, the price shall be either:

1. as indicated on invoices provided by Tauranga Landscaping to the customer in respect of works performed or materials supplied; or
2. Tauranga Landscaping’s price at the date of delivery of the works according to Tauranga Landscaping’s current price list and/or labour rates; or
3. Tauranga Landscaping’s estimated or quoted price (subject to clause 6.2) which shall be binding upon Tauranga Landscaping provided that the customer shall accept Tauranga Landscaping’s quotation in writing within fourteen (14) days if the date of estimation or quotation.

6.2 Tauranga Landscaping reserves the right to change the price:

1. if a variation to the materials which are to be supplied is requested; or
2. if a variation to the works originally scheduled (including any applicable plans or specifications) is requested; or
3. where additional works are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, poor weather, limitations to accessing the worksite, obscured building/worksite defects which require remedial work, as a result of delays from third party suppliers, safety considerations and health hazards, prerequisite work by any third party not being completed, remedial work required due to existing workmanship being of a poor quality or non-compliant to the building code, hidden or obscured substructures such as concrete/paving etc., hidden services such as pipes and wiring/cabling, etc.) which are only discovered on commencement of the works; or
4. in the event of increases to Tauranga Landscaping in the cost of labour or materials (including, but not limited to, any variation as a result of fluctuations in currency exchange rates or increases to Tauranga Landscaping in the cost of taxes, levies, freight and insurance charges, or delays in shipment etc.) which are beyond Tauranga Landscaping’s control.

6.3 Variations will be charged for on the basis of Tauranga Landscaping’s quotation, and will be detailed in writing, and shown as variations on Tauranga Landscaping’s invoice. The customer shall be required to respond to any variation submitted by Tauranga Landscaping within three (3) working days. Failure to do so will entitle Tauranga Landscaping to add the cost of the variation to the price. Payment for all variations must be made in full at the time of their completion.

6.4 The customer acknowledges and accepts that no variations to the works (including, but not limited to, an extension of time) will be made without written instructions from the customer.

6.5 Upon written, digital and/or verbal advice from a customer that they accept a written estimate or quote for works, Tauranga Landscaping will have deemed an order to be placed and reserves the right to:

1. invoice the customer a proportion of the value of works estimated or quoted as a deposit to confirm a scheduled time for works to be completed;
2. invoice a proportion of the value of works to cover the cost of ordering materials for delivery to the worksite prior to works being scheduled to commence.
3. invoice by way of progress payments in accordance with Tauranga Landscaping’s specified progress payment schedule. Such progress payment claims may include the reasonable value of authorised variations and the value of any materials delivered to the worksite but not yet installed
4. advise the customer of the proportional and/or progress payment terms on the estimate or quote; and
5. not refund payment/s received for a deposit and/or materials invoice in accordance with clause 22.3.

6.6 Time for payment for the works being of the essence, the price will be payable by the customer on the date/s determined by Tauranga Landscaping, which may be:

1. the date which an invoice is due for payment is the date of any invoice delivered via email to the customer by Tauranga Landscaping; or
2. failing any notice to the contrary, five (5) days from the date of invoice as being the date for payment.

6.7 Payment may be made by electronic/on-line banking, credit card (a surcharge may apply per transaction), or by any other method as agreed to between the customer and Tauranga Landscaping.

6.8 Tauranga Landscaping may in its discretion allocate any payment received from the customer towards any invoice that Tauranga Landscaping determines and may do so at the time of receipt or at any time afterwards. On any default by the customer Tauranga Landscaping may re-allocate any payments previously received and allocated. In the absence of any payment allocation by Tauranga Landscaping, payment will be deemed to be allocated in such manner as preserves the maximum value of Tauranga Landscaping’s Purchase Money Security Interest (as defined in the PPSA) in the materials.

6.9 The customer shall not be entitled to set off against, or deduct from the price, any sums owed or claimed to be owed to the customer by Tauranga Landscaping nor to withhold payment of any invoice because part of that invoice is in dispute, unless the request for payment by Tauranga Landscaping is a claim made under the Construction Contracts Act 2002. Nothing in this clause 6.10 prevents the customer from the ability to dispute any invoice.

6.10 Unless otherwise stated the price does not include GST. In addition to the price, the customer must pay to Tauranga Landscaping an amount equal to any GST Tauranga Landscaping must pay for any supply by Tauranga Landscaping under this or any other agreement for supply of works and/or materials. The customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the customer pays the Price. In addition, the customer must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.

7. Provision of the Works

7.1 Subject to clause 7.2 it is Tauranga Landscaping’s responsibility to ensure that the works start as soon as it is reasonably possible.

7.2 The works’ commencement date will be put back and the completion date extended by whatever time is reasonable in the event that Tauranga Landscaping claims an extension of time (by giving the customer written notice) where completion is delayed by an event beyond Tauranga Landscaping’s control, including but not limited to any failure by the customer to:

1. make a selection; or
2. ensure cleared payment of any deposit and/or materials invoice; or
3. have the worksite ready for the works; or
4. notify Tauranga Landscaping that the worksite is ready.

7.3 Tauranga Landscaping may deliver the works by separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.

7.4 Any time specified by Tauranga Landscaping for delivery of the works is an estimate only and Tauranga Landscaping will not be liable for any loss or damage incurred by the customer as a result of delivery being late. However, both parties agree that they shall make every endeavour to enable the works to be supplied at the time and place as was arranged between both parties. In the event that Tauranga Landscaping is unable to supply the works as agreed solely due to any action or inaction of the customer, then Tauranga Landscaping shall be entitled to charge a reasonable fee for re-supplying the works at a later time and date, and/or for storage of the materials.

8. Risk

8.1 If Tauranga Landscaping retains ownership of the materials under clause 14 then where Tauranga Landscaping is supplying, and/or constructing, and/or installing materials, all risk for the materials shall immediately pass to the customer on delivery. The customer must insure the materials on or before delivery unless otherwise agreed. The cost of delivery is either included in the price or is in addition to the price as agreed between the parties. Delivery of the materials shall be deemed to have taken place immediately at the time that the materials are delivered by Tauranga Landscaping or Tauranga Landscaping’s nominated carrier to the customer’s nominated delivery address (even if the customer is not present at the address).

8.2 Notwithstanding the provisions of clause 8.1 if the customer specifically requests Tauranga Landscaping to leave materials outside Tauranga Landscaping’s premises for collection or to deliver the materials to an unattended location then such materials shall always be left at sole risk of the customer and it shall be the customer’s responsibility to ensure the materials are insured adequately or at all. In the event that such materials are lost, damaged or destroyed then replacement of the materials shall be at the customer’s expense.

8.3 The customer warrants that the structure of the premises or equipment in or upon which the materials are to be installed or erected is sound and will sustain the installation and works incidental thereto and Tauranga Landscaping shall not be liable for any claims, demands, losses, damages, costs, and expenses howsoever caused or arising should the premises or equipment be unable to accommodate the installation.

8.4 The customer acknowledges and agrees that weather conditions may affect progress of the works and may cause damage to work. Tauranga Landscaping reserves the right to postpone any works where the weather is deemed to be unsuitable for such works. Tauranga Landscaping shall not be liable for any claim, loss or damage as a result of this clause.

8.5 The customer acknowledges it is their sole responsibility to obtain and provide to Tauranga Landscaping sub-surface mapping plans showing all amenities below the surface before excavation and/or digging commences if there is any possibility of underground utilities, substructures or services in the area designated for works.

8.6 Where it is deemed that sub-surface mapping is necessary and has not been provided by the customer then Tauranga Landscaping reserves the right to halt and/or reschedule any works, and can charge the customer the necessary costs in obtaining such plans. The customer also agrees to indemnify Tauranga Landscaping from any claim, loss or damage whatsoever arising from a delay in works commencing and/or concluding caused by ordering sub-surface plans.

8.7 The customer agrees to indemnify Tauranga Landscaping from any claim as a result of accidental damage to sub-surface amenities, structures, services or utilities where the customer has not informed Tauranga Landscaping of the possibility of these existing.

8.8 Tauranga Landscaping shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the customer. The customer acknowledges and agrees that in the event that any of this information provided by the customer is inaccurate, Tauranga Landscaping accepts no responsibility for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information.

8.9 Any faults with underlying surfaces or structures may affect the finish of the completed works. The customer accepts that where Tauranga Landscaping is requested to perform remedial work on damaged structures, evidence of repairs may be apparent after the completion of the works.

8.10 Where Tauranga Landscaping is contracted to remove existing materials from a structure and discovers any issue that require other tradespeople or insurance assessment, Tauranga Landscaping reserves the right to halt the works, and invoice the customer for works already completed, until the time that Tauranga Landscaping is satisfied that remedial work is completed to a standard suitable for the works to be completed to a reasonable standard.

8.11 In the event that during the course of the works Tauranga Landscaping discovers any undisclosed waste and/or hazardous materials then Tauranga Landscaping reserves the right to halt all works and immediately notify the customer. It shall be the responsibility of the customer to arrange the removal of all such materials. In the event that Tauranga Landscaping agrees to remove such materials for the customer then this shall be treated as a variation in accordance with clause 6.2 and shall be in addition to the Price. Tauranga Landscaping under no circumstances shall undertake the removal of asbestos.

8.12 Materials supplied may exhibit variations in shade, colour, texture, surface, and finish, and may fade or change colour over time. Tauranga Landscaping will make every effort to match batches of product supplied in order to minimise such variations but shall not be liable in any way whatsoever where such variations occur.

8.13 The customer acknowledges that any finished materials applied may:

1. fade or change colour over time; and
2. expand, contract, or distort as a result of exposure to heat, cold, weather; and
3. mark or stain if exposed to certain substances; and
4. be damaged or disfigured by impact or scratching.

9. Customer Responsibilities

9.1 It is the intention of Tauranga Landscaping and agreed by the customer that it is the responsibility of the customer to:

1. obtain any consents or permits required by governing bodies unless otherwise agreed to by acceptance of an estimate or quote detailing such services; and
2. remove any furniture, equipment, or personal goods from the vicinity of the works and agrees that Tauranga Landscaping shall not be liable for any damage caused to those items through the customer’s failure to comply with this clause; and
3. remove, extinguish or relocate all hazardous risks located in the area of works prior to works commencing including but not limited to fuel sources, gas bottles, hazardous chemicals, pilot lights heaters etc.; and
4. provide Tauranga Landscaping with adequate access to available water, electricity, toilet and washing facilities, if so required.

9.2 The customer acknowledges that they shall:

1. be wholly responsible for animals and/or children on the worksite; and
2. be wholly responsible for the removal of rubbish, green waste and/or unused materials from or clean-up of the worksite, unless otherwise agreed to by acceptance of an estimate or quote detailing such services.

10. Worksite Access

10.1 The customer shall ensure that Tauranga Landscaping has always clear and free access to the worksite to enable them to undertake the works (including carrying out worksite inspections, gain signatures for required documents, and for the delivery and installation of the materials). Tauranga Landscaping shall not be liable for any loss or damage to the worksite (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of Tauranga Landscaping.

10.2 Worksite Inductions

1. in the event the customer requires an employee or sub-contractor of Tauranga Landscaping to undertake a worksite induction during working hours, the customer will be liable to pay the hourly charges for that period. If any induction needs to be undertaken prior to the commencement date then the customer shall be liable to pay Tauranga Landscaping’s standard (and/or overtime, if applicable) hourly labour rate; or
2. where Tauranga Landscaping is in control of the worksite, the customer and/or the customer’s third-party contractors must initially carry out Tauranga Landscaping’s Health & Safety induction course before access to the worksite will be granted. Inspection of the worksite during the course of the works will be by appointment only and unless otherwise agreed, in such an event the customer and/or third party acting on behalf of the customer must at all times be accompanied by Tauranga Landscaping.

11. Service Locations

11.1 Prior to Tauranga Landscaping commencing any work the customer must advise Tauranga Landscaping of the precise location of all services on the worksite and clearly mark the same. The mains and services the customer must identify include, but are not limited to, electrical services, gas services, sewer services, pumping services, sewer connections, sewer sludge mains, water mains, irrigation pipes, telephone cables, fibre optic cables, oil pumping mains, and any other services that may be on the worksite.

11.2 Whilst Tauranga Landscaping will take all care to avoid damage to any services the customer agrees to indemnify Tauranga Landscaping in respect of all and any liability claims, loss, damage, costs and fines as a result of damage to services not precisely located and notified as per clause 11.1.

12. Compliance with Laws

12.1 The customer and Tauranga Landscaping shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the works, including any WorkSafe health and safety laws relating or any other relevant safety standards or legislation pertaining to the works.

12.2 Both parties acknowledge and agree:

1. to comply with the Building Act 2004 (including any subsequent Amendments) and Code of Ethics, in respect of all workmanship and building products to be supplied during the course of the works; and
2. that works will be provided in accordance with any current relevant Australian/New Zealand Standards applicable.

12.3 Where the customer has supplied products for Tauranga Landscaping to complete the works, the customer acknowledges that it accepts responsibility for the suitability of purpose and use for their products and the intended use and any faults inherent in those products. However, if in Tauranga Landscaping’s opinion, it is believed that the materials supplied are non-conforming products and will not conform with New Zealand regulations, then Tauranga Landscaping shall be entitled, without prejudice, to halt the works until the appropriate conforming products are sourced and all costs associated with such a change to the plans and design will be invoiced in accordance with clause 6.2.

12.4 The customer shall obtain (at the expense of the customer) all licenses and approvals that may be required for the works.

12.5 Notwithstanding clause 12.1 and pursuant to the Health & Safety at Work Act 2015 (the “HSW Act”), Tauranga Landscaping agrees at all times to comply with sections 28 and 34 of the “HSW Act” with meeting their obligations for health and safety laws in the workplace regardless of whether they may be the party in control of the worksite or where they may be acting as a sub-contractor for the customer who has engaged a third party head contractor.

13. Insurance

13.1 Tauranga Landscaping shall have public liability insurance cover whilst carrying out works. It is the customer’s responsibility to ensure that they are similarly insured.

14. Title

14.1 Tauranga Landscaping and the customer agree that ownership of the materials shall not pass until:

1. the customer has paid Tauranga Landscaping all amounts owing to Tauranga Landscaping; and
2. the customer has met all of its other obligations to Tauranga Landscaping.

14.2 Receipt by Tauranga Landscaping of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.

14.3 It is further agreed that:

1. until ownership of the materials passes to the customer in accordance with clause 14.1 that the customer is only a bailee of the materials and unless the materials have become fixtures must return the materials to Tauranga Landscaping on request;
2. the customer holds the benefit of the customer’s insurance of the materials on trust for Tauranga Landscaping and must pay to Tauranga Landscaping the proceeds of any insurance in the event of the materials being lost, damaged or destroyed;
3. the production of these terms and conditions by Tauranga Landscaping shall be sufficient evidence of Tauranga Landscaping’s rights to receive the insurance proceeds direct from the insurer without the need for any person dealing with Tauranga Landscaping to make further enquiries;
4. the customer must not sell, dispose, or otherwise part with possession of the materials other than in the ordinary course of business and for market value. If the customer sells, disposes or parts with possession of the materials then the customer must hold the proceeds of any such act on trust for Tauranga Landscaping and must pay or deliver the proceeds to Tauranga Landscaping on demand;
5. the customer should not convert or process the materials or intermix them with other goods but if the customer does so then the customer holds the resulting product on trust for the benefit of Tauranga Landscaping and must sell, dispose of or return the resulting product to Tauranga Landscaping as it so directs;
6. unless the materials have become fixtures the customer irrevocably authorises Tauranga Landscaping to enter any premises where Tauranga Landscaping believes the materials are kept and recover possession of the materials;
7. Tauranga Landscaping may recover possession of any materials in transit whether or not delivery has occurred;
8. the customer shall not charge or grant an encumbrance over the materials nor grant nor otherwise give away any interest in the materials while they remain the property of Tauranga Landscaping; and
9. Tauranga Landscaping may commence proceedings to recover the price of the materials sold notwithstanding that ownership of the materials has not passed to the customer.

15. Personal Property Securities Act 1999 (“PPSA”)

15.1 Upon assenting to these terms and conditions in writing the customer acknowledges and agrees that:

1. these terms and conditions constitute a security agreement for the purposes of the PPSA; and
2. a security interest is taken in all materials that have previously been supplied and that will be supplied in the future by Tauranga Landscaping to the customer and the proceeds from such materials as listed by Tauranga Landscaping to the customer in invoices rendered from time to time.

15.2 The customer undertakes to:

1. sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which Tauranga Landscaping may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
2. indemnify, and upon demand reimburse, Tauranga Landscaping for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any materials charged thereby;
3. not register, or permit to be registered, a financing statement or a financing change statement in relation to the materials or the proceeds of such materials in favour of a third party without the prior written consent of Tauranga Landscaping; and
4. immediately advise Tauranga Landscaping of any material change in its business practices of selling materials which would result in a change in the nature of proceeds derived from such sales.

15.3 Unless otherwise agreed to in writing by Tauranga Landscaping, the customer waives its right to receive a verification statement in accordance with section 148 of the PPSA.

15.4 The customer shall unconditionally ratify any actions taken by Tauranga Landscaping under clauses 15.1 to 15.3.

15.5 Subject to any express provisions to the contrary (including those contained in this clause 15), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.

16. Security and Charge

16.1 In consideration of Tauranga Landscaping agreeing to supply the works, the customer charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the customer either now or in the future, and the customer grants a security interest in all of its present and after-acquired property, to secure the performance by the customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money). The terms of the charge and security interest are the terms of Memorandum 2018/4344 registered pursuant to s.209 of the Land Transfer Act 2017.

16.2 The customer indemnifies Tauranga Landscaping from and against all Tauranga Landscaping’s costs and disbursements including legal costs on a solicitor and own customer basis incurred in exercising Tauranga Landscaping’s rights under this clause.

16.3 The customer irrevocably appoints Tauranga Landscaping and each director of Tauranga Landscaping as the customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 16 including, but not limited to, signing any document on the customer’s behalf.

17. Defects and Returns

17.1 The customer shall inspect the materials on delivery and shall within five (5) days of delivery (time being of the essence) notify Tauranga Landscaping of any alleged defect, shortage in quantity, damage, or failure to comply with the description or quote. The customer shall afford Tauranga Landscaping an opportunity to inspect the materials within a reasonable time following delivery if the customer believes the materials are defective in any way. If the customer shall fail to comply with these provisions the materials shall be presumed to be free from any defect or damage. For defective materials, which Tauranga Landscaping has agreed in writing that the customer is entitled to reject, Tauranga Landscaping’s liability is limited to either (at Tauranga Landscaping’s discretion) replacing the materials or repairing the materials.

17.2 Returns will only be accepted provided that:

1. the customer has complied with the provisions of clause 17.1; and
2. Tauranga Landscaping has agreed in writing to accept the return of the materials; and
3. the materials are returned at the customer’s cost within seven (7) days of the delivery date; and
4. Tauranga Landscaping will not be liable for materials which have not been stored, used and/or maintained in a proper manner; and
5. the materials are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonably possible in the circumstances.

17.3 Tauranga Landscaping will not accept the return of materials for credit.

17.4 Returns will not be accepted for materials where a customer has failed to follow and/or adhere to any communicated care advice provided either verbally or non-verbally by Tauranga Landscaping or it’s associated suppliers, contractors, partners’ and/or agents.

17.5 Any defects or damage requiring remedial work as a result of a customer failing to follow care advice will be solely at the customer’s expense.

17.6 Tauranga Landscaping shall be entitled to invoice and receive payment from the customer at the normal hourly rate in the event that Tauranga Landscaping is called out to the work-site to assess defects, damage or remedial work as a result of the customer not following such care advice.

18. Warranties

18.1 Subject to clause 19, Tauranga Landscaping’s liability for any defect or damage in the materials shall be:

1. limited to the value of any express warranty or warranty documentation provided to the customer by Tauranga Landscaping at the time of practical completion and/or upon final payment due under this Contract, unless otherwise agreed;
2. limited to any warranty to which Tauranga Landscaping is entitled, if Tauranga Landscaping did not manufacture the materials and Tauranga Landscaping shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the materials;
3. otherwise negated absolutely.

18.2 Overdue and/or outstanding monies owed to Tauranga Landscaping for works and/or materials performed by Tauranga Landscaping under this Contract may render any warranty and guarantee (where applicable) that is provided at the time of practical completion and/or upon final payment, null and void.

19. Consumer Guarantees Act 1993 and the Fair Trading Act 1986

19.1 If the customer is acquiring materials for the purposes of a trade or business, the customer acknowledges that the provisions of the Consumer Guarantees Act 1993 (“CGA”) do not apply to the supply of materials by Tauranga Landscaping to the customer.

19.2 Tauranga Landscaping agrees to abide by the provisions of the Fair Trading Act 1986 (“FTA”).

20. Intellectual Property

20.1 Where Tauranga Landscaping has designed, drawn, written plans or a schedule of works, or created any products for the customer, then the copyright in all such designs, drawings, documents, plans, schedules, and products shall remain vested in Tauranga Landscaping, and shall only be used by the customer at Tauranga Landscaping’s discretion. Under no circumstances may such designs, drawings and documents be used without the express written approval of Tauranga Landscaping.

20.2 The customer warrants that all designs, specifications, or instructions given to Tauranga Landscaping will not cause Tauranga Landscaping to infringe any patent, registered design or trademark in the execution of the customer’s order and the customer agrees to indemnify Tauranga Landscaping against any action taken by a third party against Tauranga Landscaping in respect of any such infringement.

20.3 The customer agrees that Tauranga Landscaping may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings, plans or products which Tauranga Landscaping has created for the customer.

21. Default and Consequences of Default

21.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at Tauranga Landscaping’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.

21.2 If the customer owes Tauranga Landscaping any money the customer shall indemnify Tauranga Landscaping from and against all costs and disbursements incurred by Tauranga Landscaping in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own customer basis, Tauranga Landscaping’s collection agency costs, and bank dishonour fees).

21.3 Further to any other rights or remedies Tauranga Landscaping may have under this Contract, if a customer has made payment to Tauranga Landscaping, and the transaction is subsequently reversed, the customer shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by Tauranga Landscaping under this clause 21, where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the customer’s obligations under this Contract.

21.4 Without prejudice to Tauranga Landscaping’s other remedies at law Tauranga Landscaping shall be entitled to cancel all or any part of any order of the customer which remains unfulfilled and all amounts owing to Tauranga Landscaping shall, whether or not due for payment, become immediately payable if:

1. any money payable to Tauranga Landscaping becomes overdue, or in Tauranga Landscaping’s opinion the customer will be unable to make a payment when it falls due;
2. the customer has exceeded any applicable credit limit provided by Tauranga Landscaping;
3. the customer becomes insolvent or bankrupt, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
4. a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the customer or any asset of the customer.

22. Cancellation

22.1 Without prejudice to any other remedies the parties may have, if at any time either party is in breach of any obligation (including those relating to payment) under these terms and conditions the other party may suspend or terminate the supply or purchase of materials or works to the other party. Neither party will be liable for any loss or damage the other party suffers because one of the parties has exercised its rights under this clause.

22.2 If Tauranga Landscaping, due to reasons beyond Tauranga Landscaping’s reasonable control, is unable to the deliver any materials or works to the customer, Tauranga Landscaping may cancel any contract to which these terms and conditions apply or cancel delivery of materials or works at any time before the materials or works are delivered by giving written notice to the customer. On giving such notice Tauranga Landscaping shall repay to the customer any money paid by the customer for the materials or works. Tauranga Landscaping shall not be liable for any loss or damage whatsoever arising from such cancellation.

22.3 The customer may cancel scheduled works and/or delivery of the materials by written notice served within three days of placement of the order, unless work has already commenced. Outside of this period any monies paid towards a deposit and/or materials invoice will not be refundable, and the works shall be confirmed and scheduled. Failure by the customer to otherwise accept delivery of the materials and/or works shall place the customer in breach of this contract.

22.4 If works have commenced within three days of a customer placing an order for works, then no cancellation will be acceptable and any monies paid to Tauranga Landscaping will not be refunded.

22.5 Cancellation of orders for products made to the customer’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.

23. Privacy Policy

23.1 All emails, documents, images or other recorded information held or used by Tauranga Landscaping is “Personal Information” as defined and referred to in clause 23.3 and therefore considered confidential. Tauranga Landscaping acknowledges its obligation in relation to the handling, use, disclosure, and processing of Personal Information pursuant to the Privacy Act 2020 (“the Act”) including Part II of the OECD Guidelines and as set out in the Act. Tauranga Landscaping acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the customer’s Personal Information, held by Tauranga Landscaping that may result in serious harm to the customer, Tauranga Landscaping will notify the customer in accordance with the Act. Any release of such Personal Information must be in accordance with the Act and must be approved by the customer by written consent, unless subject to an operation of law.

23.2 Notwithstanding clause 23.1, privacy limitations will extend to Tauranga Landscaping in respect of Cookies where the customer utilises Tauranga Landscaping’s website to make enquiries. Tauranga Landscaping agrees to display reference to such Cookies and/or similar tracking technologies, such as pixels and web beacons (if applicable), such technology allows the collection of Personal Information such as the customer’s:

1. IP address, browser, email customer type and other similar details;
2. tracking website usage and traffic; and
3. reports are available to Tauranga Landscaping when Tauranga Landscaping sends an email to the customer, so Tauranga Landscaping may collect and review that information (“collectively Personal Information”). If the customer consents to Tauranga Landscaping’s use of Cookies on Tauranga Landscaping’s website and later wishes to withdraw that consent, the customer may manage and control Tauranga Landscaping’s privacy controls via the customer’s web browser, including removing Cookies by deleting them from the browser history when exiting the site.

23.3 The customer authorises Tauranga Landscaping or Tauranga Landscaping’s agent to:

1. access, collect, retain and use any information about the customer;
   1. (including, name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history or any overdue fines balance information held by the Ministry of Justice) for the purpose of assessing the customer’s creditworthiness; or
   2. for the purpose of marketing products and services to the customer.
2. disclose information about the customer, whether collected by Tauranga Landscaping from the customer directly or obtained by Tauranga Landscaping from any other source, to any other credit provider or any credit reporting agency for the purposes of providing or obtaining a credit reference, debt collection or notifying a default by the customer.

23.4 Where the customer is an individual the authorities under clause 23.3 are authorities or consents for the purposes of the Privacy Act 2020.

23.5 The customer shall have the right to request (by e-mail) from Tauranga Landscaping, a copy of the Personal Information about the customer retained by Tauranga Landscaping and the right to request that Tauranga Landscaping correct any incorrect Personal Information.

23.6 Tauranga Landscaping will destroy Personal Information upon the customer’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this contract or is required to be maintained and/or stored in accordance with the law.

23.7 The customer can make a privacy complaint by contacting Tauranga Landscaping via e-mail. Tauranga Landscaping will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within twenty (20) days of receipt of the complaint. In the event that the customer is not satisfied with the resolution provided, the customer can make a complaint to the Privacy Commissioner at http://www.privacy.org.nz.

24. Suspension of works

24.1 Where the Contract is subject to section 24A of the Construction Contracts Act 2002, the customer hereby expressly acknowledges that:

1. Tauranga Landscaping has the right to suspend work within five (5) working days of written notice of its intent to do so if a payment claim is served on the customer, and:
   1. the payment is not paid in full by the due date for payment in accordance with clause 6.6 and/or any subsequent amendments or new legislation and no payment schedule has been given by the customer; or
   2. a scheduled amount stated in a payment schedule issued by the customer in relation to the payment claim is not paid in full by the due date for its payment; or
   3. the customer has not complied with an adjudicator’s notice that the customer must pay an amount to Tauranga Landscaping by a particular date; and
   4. Tauranga Landscaping has given written notice to the customer of its intention to suspend the carrying out of construction work under the construction Contract.
2. if Tauranga Landscaping suspends work, it:
   1. is not in breach of contract; and
   2. is not liable for any loss or damage whatsoever suffered, or alleged to be suffered, by the customer or by any person claiming through the customer; and
   3. is entitled to an extension of time to complete the Contract; and
   4. keeps its rights under the Contract including the right to terminate the Contract; and may at any time lift the suspension, even if the amount has not been paid or an adjudicator’s determination has not been complied with.
3. if Tauranga Landscaping exercises the right to suspend work, the exercise of that right does not:
   1. affect any rights that would otherwise have been available to Tauranga Landscaping under the Contract and Commercial Law Act 2017; or
   2. enable the customer to exercise any rights that may otherwise have been available to the customer under that Act as a direct consequence of Tauranga Landscaping suspending work under this provision;
4. due to any act or omission by the customer, the customer effectively precludes Tauranga Landscaping from continuing the works or performing or complying with Tauranga Landscaping’s obligations under this Contract, then without prejudice to Tauranga Landscaping’s other rights and remedies, Tauranga Landscaping may suspend the works immediately after serving on the customer a written notice specifying the payment default or the act, omission or default upon which the suspension of the works is based. All costs and expenses incurred by Tauranga Landscaping as a result of such suspension and recommencement shall be payable by the customer as if they were a variation.

24.2 If pursuant to any right conferred by this Contract, Tauranga Landscaping suspends the works and the default that led to that suspension continues un-remedied subject to clause 22.1 for at least ten (10) working days, Tauranga Landscaping shall be entitled to terminate the contract, in accordance with clause 22.

25. Service of Notices

25.1 Any written notice given under this Contract shall be deemed to have been given and received:

1. by handing the notice to the other party, in person;
2. by leaving it at the address of the other party as stated in this Contract;
3. by sending it by registered post to the address of the other party as stated in this Contract;
4. if sent by facsimile transmission to the fax number of the other party as stated in this Contract (if any), on receipt of confirmation of the transmission;
5. if sent by email to the other party’s last known email address.

25.2 Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.

26. Trusts

26.1 If the customer at any time upon or subsequent to entering in to the contract is acting in the capacity of trustee of any trust or as an agent for a trust (“Trust”) then whether or not Tauranga Landscaping may have notice of the Trust, the customer covenants with Tauranga Landscaping as follows:

1. the contract extends to all rights of indemnity which the customer now or subsequently may have against the Trust, the trustees and the trust fund;
2. the customer has full and complete power and authority under the Trust or from the Trustees of the Trust as the case maybe to enter into the contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the customer against the Trust, the trustees and or the trust fund. The customer will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity;
3. the customer will not during the term of the contract without consent in writing of Tauranga Landscaping (Tauranga Landscaping will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events:
   1. the removal, replacement or retirement of the customer as trustee of the Trust;
   2. any alteration to or variation of the terms of the Trust;
   3. any advancement or distribution of capital of the Trust; or
   4. any resettlement of the trust fund or trust property.

27. General

27.1 Any dispute or difference arising as to the interpretation of these terms and conditions or as to any matter arising hereunder, shall be submitted to, and settled by, either adjudication in accordance with section 26 of the Construction Contracts Act 2002 and/or by arbitration in accordance with the Arbitration Act 1996 or its replacement(s).

27.2 The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.

27.3 These terms and conditions and any contract to which they apply shall be governed by the laws of New Zealand and are subject to the jurisdiction of the courts of Tauranga, New Zealand.

27.4 Subject to the CGA, the liability of Tauranga Landscaping and the customer under this contract shall be limited to the price.

27.5 Tauranga Landscaping may licence and/or assign all or any part of its rights and/or obligations under this Contract without the customer’s consent provided the assignment does not cause detriment to the customer.

27.6 The customer cannot licence or assign without the written approval of Tauranga Landscaping.

27.7 Tauranga Landscaping may elect to subcontract out any part of the works but shall not be relieved from any liability or obligation under this Contract by so doing. Furthermore, the customer agrees and understands that they have no authority to give any instruction to any of Tauranga Landscaping’s sub-contractors without the authority of Tauranga Landscaping.

27.8 The customer agrees that Tauranga Landscaping may amend their general terms and conditions for subsequent future contracts with the customer by disclosing such to the customer in writing. These changes shall be deemed to take effect from the date on which the customer accepts such changes, or otherwise at such time as the customer makes a further request for Tauranga Landscaping to provide works to the customer.

27.9 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm, national or global pandemics and/or the implementation of regulation, directions, rules or measures being enforced by Governments or embargo, including but not limited to, any Government imposed border lockdowns (including, worldwide destination ports), etc, (“Force Majeure”) or other event beyond the reasonable control of either party. This clause does not apply to a failure by the customer to make any payment due to Tauranga Landscaping, following cessation of a Force Majeure.

27.10 Both parties warrant that they have the power to enter into this contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this contract creates binding and valid legal obligations on them.