Terms of Trade

1 Definitions

a) “Contractor” means Outside Plus Ltd. and assigns and any person acting on behalf of with the authority of the Contractor. b) “Customer” means the customer (or any person acting on behalf of with the authority of the customer) as described on any quotation, work authorisation or other communication as provided by the Contractor to the Customer. The term “Customer” also includes any Guarantor and any Customer and Guarantor shall be joint and severally liable for the obligations in these terms and conditions.
c) “GST” means Goods and Services Tax pursuant to the Goods and Services Tax Act 1985. All pricing is excluding GST unless otherwise specified in writing.
d) “Guarantor” means the person, persons or entity who agrees to be liable for the debts of the Customer. e) “Goods” means goods supplied by the Contractor to the Customer and includes goods described on any invoices, quotation, work authorisation or any other communication as provided by the Contractor to the Customer.
f) “Price” means the price payable for the Goods and Services as agreed between Contractor and Customer as per any quote or invoice given by the Contractor.
g) “PPSA” means the Personal Properties Security Act 1999

2 Acceptance

a) Any instructions received by the Contractor from the Customer for the supply of Goods and/or Services, the Customers’ acceptance of Goods and/or Services supplied by the Contractor and/or acceptance of any quotes supplied by the Contractor shall constitute acceptance of these Terms and Conditions.
b) On acceptance of these terms and conditions they are binding and can only be amended with written consent of the Contractor.

3 Price

a) The price shall be as indicated on invoices provided by the Contractor to the Customer or the Contractors quoted price if such quoted Price is given and accepted by the Customer.
b) Should the Contractor become aware of any latent factor after initial quote then the Contractor may re-quote the Price to the Customer which will be open to acceptance by the Customer. Should it not be accepted by the Customer the Contractor can cease the services it is providing to the Customer and the Customer will only be liable for the proportion of the Services carried out up until the Contractors cessation of the Services.
c) Should any adjustments be agreed to the details of work quoted such as requested variations of the work, change in scope of the work or additional work then the Contractor may re-quote the Price to the Customer which will be open to acceptance by the Customer. Should the requoted Price not be accepted by the Customer then the Contractor has no obligation to carry out such adjustments.
d) Unless otherwise stated the Price is on the basis that:-
1. Ground conditions are satisfactory for the Contractor to supply the Goods and/or Services.
2. The site is bare and cleared of all rubbish and debris.
e) Notwithstanding any Price given by the Contractor to the Customer, the Customer acknowledges that the Price is based on the best Price available at the date of quotation or invoice given by the Contractor, and the Contractor reserves the right to pass onto the Customer any increase in the cost incurred by it between the date of first issuing a quote or invoice and the date on which the Goods or Services are supplied.

4 Payment

a) Unless otherwise agreed in writing, any job quoted over a total $500 requires a deposit of 30% of the Price prior to the commencement of the supply of Goods and Services.
b) The Contractor will specify the date payment must be made following issue of invoices. All payments must be made without any set offs or deductions whatsoever.
c) All prices quoted or invoiced are exclusive of GST and GST will be added to the Prices quoted or invoices. d) Should payment in full not be made on the due date, then without prejudice to any other remedies available to the Contractor it may:
1. Cancel or withhold the supply of further Good or Services:
2. Charge and recover interest calculated at a rate of 20% per annum, calculated daily, on any amount outstanding from the due date until payment is received in full; and
3. The Customer shall be responsible for all costs (including legal costs on a solicitor/client basis) incurred by the Contractor in recovering all outstanding amounts.
4. If the total amount, (including interest), due and outstanding to the Contractor by the Customer, is not paid by the due date, then any time after the due date the Contractor may use a debt collection agent, and the agents fee and outstanding account, plus any legal costs (on a solicitor/client basis) and any other costs arising from such
collection, will be payable by the Customer in addition to the amount of the overdue and outstanding account.

5 Risk

a) The risk of any loss or damage to or deterioration of goods shall pass to the Customer when the Customer takes possession of these Goods.
Consumer guarantees Act 1993 (CGA)
b) If the CGA applies, the terms and conditions shall be read subject to the consumers rights under the CGA, provided that where the customer is acquiring goods for business purposes the CGA shall not apply. Where the Customer on supplies goods purchased from the Contractor to persons for business purposes, the Customer shall in contracting with those persons provide that the CGA shall not apply to the extent permitted by law. The Customer indemnifies the Contractor in respect of any failure to comply with this provision.

6 Personal Property Securities Act 1999 (PPSA)

a) To secure payment of all amounts owing by the Customer to the Contractor from time to time, the Customer as debtor grants a security interest in all goods previously supplied by the Contractor to the Customer and all after acquired goods by the Contractor to the Customer. The Customer also grants a General Security Interest in all the Customer’s present and after
acquired property as collateral securing payment of all outstanding indebtedness owing by the Customer to the Contractor. b) The Customer acknowledges and agrees that the security interests given to the Contractor includes a security interest in all proceeds of collateral.
c) The Customer agrees to waive its right to receive a verification statement in respect of any financing statement or financing change statement relating to the security interest and that the Customer contracts out of sections 114(1)(a), 117(1)(c), 133 and 134 of PPSA. The right of a debtor in sections 116, 119, 120(2), 121, 125, 126,127,129, 131 and 132 of the PPSA do not apply to the security interest given by the Customer to the Contractor.
d) The Customer agrees to provide any information or sign any document required under the PPSA and the regulations under the PPSA to enable the Contractor to register a financing statement or a financing change statement.

7 Property in goods

a) Property in goods sold by the Contractor will not pass in legal ownership to the Customer until the Customer has made payment in full of the purchase price for those goods to the Contractor. Until such payment is made the Customer will hold the goods as Bailee for the Contractor and the Contractor shall have the right to enter the premises occupied by the Customer and take possession of any goods at any time after payment is due.
b) If any of the goods are resold before payment is made, the Customer shall hold the sale proceeds for and on account of the Contractor. The proceeds of any and all such sale will reduce the debt to the Contractor and the Contractor may take such legal remedies as are available to it to recover any balance outstanding. The Customer agrees that any collection costs incurred by the Contractor in collection of all or any part of any overdue debt on this account will be payable by it.

8 Privacy Act

a) The Customer expressly authorises the Contractor to make any enquiries it considers necessary for confirmation of any information set out in this application. The Customer understands it has rights under the Privacy act 1993 to access and correct any information held by the Contractor about the Customer.

9 Site Access

a) The Contractor shall be entitled to have reasonable access to the site at all reasonable hours to carry out the supply of Goods and Services. The Customer shall not unreasonably interfere with the progress of the supply of Goods and Services.

10 Terms of Contract

a) Any Goods or Services supplied by the Contractor shall be subject to these terms unless agreed otherwise in writing. The Customers’ acceptance of Goods or Services from the Contractor is deemed to be an acceptance of these terms.

11 Warranty

a) The Contractor warranties that any defects in the workmanship of the Contractor becomes apparent and reported to the Contractor within 1 month of the date of delivery of the Goods and Services then the Contractor will either (at the Contractors sole discretion) replace or remedy the workmanship, subject to the following:
b) The above warranty does not apply where any defect or damage found in the workmanship may be caused or partly caused or arise through:-
1. Failure of the customer to comply with any instructions provided by the Contractor;
2. Neglect to care of; growing or alive goods.
3. Fair wear and tear, including but not limited to, erosion and/or deterioration by natural or unnatural elements or any other means, breakdown of goods and materials, supplied by the Contractor to the Customer, in any way or form e.g. composting of bark/mulch products etc., areas worn down and compacted by foot traffic and so on. 4. If any alterations or repairs are carried out without the Contractors written consent.
5. Subsurface failure or damage to the surface of the goods caused by the actions of any persons or
equipment/machinery (e.g. walking on a new lawn after substantial rain in all circumstances will cause permanent imprints).
c) The customer acknowledges that in respect of Goods and Services involving soil, the soil may sink, incorporate weed seeds, incorporate rhizomes (e.g. couch/twitch) become uneven, depending on subsurface material and site drainage, or not be ideal for growing the Customers chosen plants post landscaping not discussed with the Contractor pre work. None of these issues shall give rise to a claim by the Customer against the Contractor or be considered a breach of the Contractors Warranty.
d) The Contractor is not liable for damage to any utility services (such as but not limited to, power, telephone, sewage, and water) unless the location of such utility services is accurately disclosed to the Contractor prior to the Contractor commencing work.
e) The Contractor is not liable for any damage beyond the Contractors control, for example but not limited to, further damage to the subsurface network (drains, pipes etc.) or surfaces (lawns, gardens etc.) caused by work being carried out by other contractors, people, vehicles or machinery.
f) The Contractor is not liable for any damage caused by earth movement whether caused by earthquake, machinery (other than the Contractors machinery) or any other means whatsoever.

12 Insurance

a) The Contractor shall have public liability insurance of $2,000,000.00.

13 Compliance

a) The Customer and Contractor must comply with all statutes, regulations, bylaws or conditions of any applicable consents. b) The Customer must ensure that the worksite complies with any occupational health and safety laws and ensure that nothing is left on the site that may be a hazard to the Contractor or any other persons who may enter onto the worksite in particular the Customer must ensure that no children or pets can access the worksite.
c) The Customer must ensure that the Contractor has access to the worksite at all reasonable times to carry out the supply of the Goods and Services and must accurately disclose the location of any utility services such as but not limited to, underground power, telephone lines, sewage and water pipes.

14 Completion

a) Upon completion of the work the Contractor may require the Customer to sign a completion acceptance form whereby the Customer acknowledges that, the Goods and/or Services provided pursuant to these terms and conditions of trade, have been supplied and completed satisfactorily and in accordance with the details provided for in any quote or invoice given to the Customer. The Customer acknowledges that by signing such form constitutes acceptance that the Contractor has completed the work the Contractor agreed to provide and the Price quoted is payable in full.

15 Guarantee

a) Where the Customer is a company, in consideration of the Contractor agreeing to provide the Customer with credit (at the request of the guarantor) either by the supply of goods on credit or the provision of services or any other form whatsoever, the Director(s) of the Customer agree(s) to jointly and severally personally guarantee due payment of all monies now or at any time owing to the Contractor and jointly and severally undertake to indemnify the Contractor against all costs and expenses including legal costs on a solicitor client basis, incurred or suffered in connection with or in relation the supply of credit.

16 Force Majeure

a) If the Contractor is prevented from fulfilling the Services as a result of a Force Majeure event beyond the Contractors control, the Contractor may either delay completion of the Services or terminate the provision of the Services by giving written notice to the Customer. An act of Force Majeure which will include by way of example but not limited to, flood, earthquake, civil disobedience, war, ration allocation or embargoes, terrorism, major strikes or labour shortages, acts of God or Government or local regional authorities or any branch or agency of them.

17 Disputes

a) In the event of any dispute or difference arising between the parties in respect of any matter relating to the Goods or Services, the Contractor and Customer shall in good faith in the first instances use their best endeavours to resolve the matters themselves.
b) In the event that the Contractor and Customer are not able to resolve the matter themselves then all matters shall be referred to a mediator and is to be mediated in accordance with the standard mediation agreement of LEADR (Lawyers Engaged in Alternative Dispute Resolution) New Zealand Incorporated. The chair of leader will select the mediator and determine the mediators’ remuneration.