TERMS OF ENGAGEMENT

 

TERMS AND CONDITIONS OF TRADE

1. APPLICATION OF TERMS

  1. 1.1  These terms of trade apply to all of the supplies of goods and services from Evergreen Homes & Constructions Limited (“We” or “Us”) to you, the customer (“You”). These terms replace all earlier terms. Your acceptance of any goods or services from us indicates your continuing acceptance of these terms of trade.

  2. 1.2  You may have additional rights under the Consumers Guarantees Act 1993.

2. GOODS AND SERVICES

  1. 2.1  We agree to supply you the goods and services outlined in the Scope of Works provided.

  2. 2.2  You agree to pay for the goods and services on the terms outlined in this document.

3. DELIVERY AND RISK

  1. 3.1  You agree to pay all delivery costs. If we deliver any order in instalments, then each delivery is a separate contract on these terms.

  2. 3.2  You do not have the right to ownership of the goods until they are delivered to you or collected by you and your obligations contained in clause 6 are fulfilled. If you ask us to deliver goods to another person or another person collects the goods on your behalf, that person takes possession of the goods for you as your agent, and you are still directly responsible to us on these terms.

  3. 3.3  All claims for shortage or delivery damage must be made to the carrier and to us within five business days after the date of the delivery, or in the case of non-delivery, within two business days of the due date for delivery.

  4. 3.4  We will use our best efforts to deliver goods, or perform services, in a timely manner, but will not be liable to you for any loss or damage arising in any way from any delay in delivery or performance.

4. VARIATIONS

  1. 4.1  Any request for variations for any work which has already been quoted must be in writing. If we agree to the request for a variation, we may;

    1. Make a corresponding adjustment to the quoted or estimated price and charge any

      additional costs if a building consent is required;

    2. Extend any time frame which has been given for completion of the work to

      accommodate the variations; and

    3. Require evidence of your ability to pay for the variation.

  2. 4.2  You must make payment for all variations either on demand by us or at the next date that part of the price is due for payment.

  3. 4.3  If we have acted on an oral instruction from you and incurred extra expense in carrying out any variations, a fair price for the variation will be added to the contract price (including original mark up on the costs of carrying out such variation).

5. PRICES

  1. 5.1  Unless otherwise agreed in writing before you place an order, prices for goods and/or services are those stated in our quote or Scope of Work, or otherwise in force at the date when you placed the order or request our services. Prices are subject to alteration without notice.

  2. 5.2  Unless we state otherwise in writing, quoted prices are exclusive of GST, and are valid only for the time stated on any quotation, or if no time is stated, on the date of quotation only. Where

any quotation is based on an estimated quantity of materials, the price will be adjusted

according to the actual amount of materials used.

  1. 5.3  You must pay goods and services tax and any other government duties, levies or taxes in

    respect of the goods or services as an additional amount.

  2. 5.4  Orders may be cancelled only if we agree in writing to the cancellation and the order has not

    been processed by us. We may charge you a cancellation fee.

6. PAYMENT AND PROPERTY

  1. 6.1  Unless we have agreed in writing to extend credit to you, payment is due upon completion of our service and an invoice will be provided to you at that time.

  2. 6.2  Where we have agreed in writing to extend credit to you, and unless otherwise advised to you in writing and signed by us, you must pay in full, without deduction or set-off, within 7 days of the date of invoice unless otherwise agreed in writing. Your payment is made only when funds have fully cleared through the banking system into our bank account.

  3. 6.3  If you have not paid in full by the due date, you will forfeit any discounts which we may have offered to you, and we may place you on stop credit.

  4. 6.4  If you have not paid in full within 7 days after the date of invoice, we may charge you interest compounding monthly on the unpaid overdue balance at a rate of 5% per annum above the current overdraft rate charged by our bankers, and we may charge costs (including collection costs and legal costs on a solicitor/client basis) and suspend delivery or further goods or performance of our services until your account is paid in full.

  5. 6.5  Payments which you make to us will be applied first to any amount owing in respect of services, and then to payment for goods supplied by us.

  6. 6.6  Property and ownership of goods, whether in original form or incorporated in, comingled with, or attached to another product, will not pass to you but will remain with us until we receive payment in full of the purchase price of the goods and all other amounts that you owe us for any reason.

  7. 6.7  Until property passes to you, you shall hold any goods and proceeds of any kind in trust in a fiduciary capacity as bailee, and store them in a manner to enable them to be identified and cross referenced to the particular invoices.

  8. 6.8  You must not resell or part with possession of any goods that we supply for your use before you have paid for it in full, unless we have given you written consent.

  9. 6.9  If you have not paid for the goods, and we reasonably believe that the goods have been or will be destroyed, damaged, disposed of, sold, endangered, removed or concealed, or that you are or will be in breach of any parts of this clause 6, we or our agent may enter your premises without further notice to you or to any other person and remove any goods which are our property, using such force as is necessary and without prejudice to our rights.

  10. 6.10  Where you acquire goods from us for your personal, domestic or household use, nothing in this clause 6 will limit or derogate from rights you may have under the Credit (Repossession) Act 1997 and we will comply with that act in exercising our powers under this clause.

  11. 6.11  You indemnify us against all costs and claims in respect of our exercise of rights under this clause 6.

7. SECURITY INTEREST

7.1 If we already have a perfected security interest in the goods we supply to you together with their proceeds, that security interest is continued under these terms of trade. Otherwise, you grant us a security interest in the goods we supply to you. Our security interest covers the goods together with proceeds of all kinds to the value of all goods and services that we have

supplied to you, whether or not those goods have become comingled into or mixed with other goods. The goods and services subject to the security interest will be described on our invoices.

  1. 7.2  You agree that you will do all acts necessary and provide us on request with all information that we require to register a financing statement over the goods and any proceeds of sale of those goods. You waive all rights to receive a copy of any verification statement of a financing statement.

  2. 7.3  You must advise us immediately in writing of any changes to information you have provided to us, and at least 12 business days before changing your name, your company name, or your trading name.

  3. 7.4  You agree that you will supply us, within 2 business days of our written request, with copies of all security interests registered over your personal property, and you authorise us as your agent to request information from any secured party relating to any security interest which is held in any personal property which is held in or has been in your possession or control.

  4. 7.5  You must reimburse our reasonable costs, including legal costs on a solicitor/client basis, associated with the discharge or amendment of any financing statement registered by us, whether or not the change was initiated by you.

  5. 7.6  If we repossess goods in accordance with these terms and conditions of trade, we may retain those goods or dispose of them without notice to you or to any other person, and after deducting reasonable costs, we will credit any surplus by way of set-off against any sums owing to us. We shall not be obliged to issue you with a statement of account or to pay any person other than you or your receiver or liquidator any sum in excess of the total amount you owe us at the time we credit your account. We will not be obliged to reinstate this agreement or resupply any repossessed inventory or equipment to you.

  6. 7.7  You authorise us to search the Personal Property Security Register at any time for any information about you, or if you are a company, your parent or associated companies.

8. RETURNS

  1. 8.1  You acknowledge and agree that returns shall only be accepted by us in accordance with our returns policy as notified to you from time to time, and that you may receive a credit for goods returned only if we have consented in writing.

  2. 8.2  However, nothing in these terms of trade or in the returns policy will limit or affect any rights that a non-business customer may have under the Consumer Guarantees Act 1993.

9. LIMITATION OF LIABILITY AND CLAIMS FOR DAMAGE

  1. 9.1  We will not be liable for any losses of any kind or any delay in supplying goods or services which are caused in whole or in part by circumstances beyond our reasonable control.

  2. 9.2  We will not be liable for any loss suffered by you as a result of any plants (whether trees, shrubs, flowers, grass or other plants) which are damaged or die due to weather conditions or inadequate watering or care by you.

  3. 9.3  We assume no liability for damage or loss of items that are not secured or protected in a proper manner, or that have been previously damaged before we provide our service (for example, heavy pictures not secured adequately to walls, or dents or marks to furniture, cabinetry or flooring present before we commenced our services)

  4. 9.4  Subject to clauses 9.1 – 9.3 (inclusive), our liability shall be limited to the value of defective goods or services supplied, and none of us, our employees, contractors or agents or any of their materials or components, or any supplies or services, will be liable to you for loss or damage of any kind however that loss or damage is caused or arises. This limitation of liability

includes, but is not limited to costs (including costs of returning goods to us or returning to manufacturer), indirect or consequential loss, loss of contracts, loss of products, damage caused by or arising from delays in delivery, or faulty or delayed installation, unreasonable use, negligence (including a failure to do something that should have been done or to prevent something from happening), faulty specifications in design, or faulty materials or components of the goods.

  1. 9.5  We maintain insurance and we take all necessary care and precautions in providing our services, however accidents can happen. If you notice breakage/damage after we have completed the services you must notify us immediately in writing clearly setting out the alleged damage, so that we may take the appropriate action.

  2. 9.6  If you believe we have caused damage to your property by providing the services, you must by notice in writing to us clearly state the alleged damage within 7 days. We shall not be liable for any damage caused or loss suffered as a result if you do not notify us in writing within that timeframe.

10. PERSONAL INFORMATION

  1. 10.1  We will use any personal information that you supply for credit, administration, service and marketing purposes. You have the right of access to, and to ask for correction of, your personal information.

  2. 10.2  You authorise any person or company to provide us with any information we may require in response to your application for credit and/or other enquiries, and you authorise us to search the Personal Property Securities Register for any information about you or (in the case of a company) your parent or associated companies.

11. ACCESS, HAZARDS AND SAFETY

  1. 11.1  If we are providing landscaping and building services within your home, it is important that we have uninterrupted access to those areas of your home that we will be providing landscaping and building services. Every effort is made to work safely and cautiously, but we cannot assume liability for the safety of others. This includes children and pets. We need to be able to work freely and without distractions. If we are subject to distractions that affect our ability to perform our work in a timely manner, we reserve the right to charge for extra time spent in your home. We ask that you keep areas clear of toys, clothing or other items before we arrive so the time we spend in your home can be as efficient as possible.

  2. 11.2  It is your responsibility to clearly identify where all pipes, lines and underground services are located where we are completing landscaping works on your property. You are required to advise us of any trees, buildings or plant life that are protected. You are responsible for identifying any hidden items and to remove those items before we commence work, or clearly mark such items if they are unable to be removed. All breakages or damage suffered to our equipment due to hidden items not being identified by you will be added to your invoice.

  3. 11.3  If we identify during providing our services that any part of our services becomes unsafe or may endanger our equipment or any person or animal, we have the right to stop work immediately, or continue the services by leave the unsafe part. We will immediately notify you in writing of any part of our services that cannot be completed due to it being unsafe. You remain liable to pay for that part of our services that has been completed up to the point that any unsafe aspect of our services has been identified and you are in no way entitle to bring a claim against us for us not being able to complete the services or any part thereof in accordance with this clause.

12. GENERAL CONDITIONS

  1. 12.1  We may change these terms of trade from time to time by notice to you in writing which may be by email.

  2. 12.2  If we fail to enforce any terms or to exercise any right under these terms of trade at any time, we have not waived that right.

  3. 12.3  You may not assign or sub-contract any of your rights or obligations under these terms of trade.

  4. 12.4  If any provision of these terms of trade is held to be invalid or unenforceable for any reason, the remaining provisions shall remain in full force and effect, and the parties shall adjust their respective rights and obligations in accordance with the spirit and intent of the parties as shown by these terms of trade.

  5. 12.5  Any agreement between us is governed by the laws of New Zealand.

  6. 12.6  Any dispute is subject to the exclusive jurisdiction of the New Zealand Courts.