Terms and Conditions

Terms of Trade for Top Garden Limited are as follows:

Special Conditions of Contract – Other Conditions of Contract

1. The General Terms and Conditions hereafter shall be read in conjunction of any specific terms and conditions of the project, where there are any discrepancies between the general and specific terms and conditions, the specific terms and conditions shall prevail.

Plans and Specifications

2. Copy right and ownership in all drawings, specifications and other technical information provided by us in connection with the contract is vested in us. Where we have followed plans and specifications provided by the you or your agent, you shall indemnify us against all damages, penalties, costs and expenses in respect of which we may become liable through the utilisation of those plans and specifications.

Quotation and Acceptance

  1. we shall produce a formal quotation for you for the Project. The quotation shall be subject to the clarifications and exclusions set out in the documentation accompanying these terms and conditions and shall be valid for a period of thirty (30) days from the date specified on the quotation.

  2. You shall accept the quotation by signing the acceptance form accompanying the quotation and signing a copy of any plans and specifications attached to the quotation, if provided. Or you shall accept the quotation by transferring any deposit according to the quotation we presented. The acceptance of the quotation in the manner specified in this clause shall constitute a binding contract and acceptance of the terms and conditions contained herein.

  3. We acknowledge that any estimates as to the time frames for the commencement and completion of the project are approximate only. We will use all reasonable endeavours to ensure the project is commenced and completed within the time frame specified but shall not be liable for any delay or failure by us to adhere to the said timeframes. we shall not be responsible for any delays caused by separate or nominated subcontractors.

Variations

  1. Except as expressly provided in these terms and conditions, no variation or alteration to the scope of the project shall be binding on the parties unless recorded in writing and signed by both parties, including any adjustment to the contract price.

  2. Any changes required as a result of any ambiguous drawings or any other documentation provided by you or your agent shall be deemed as a variation to the project.

  3. We shall have the right to replace and/or substitute any material and/or goods provided shall, after reasonable efforts had been made by us. You are responsible for the reasonable price difference between different materials and/or goods.

Top Garden Limited ©

Cancellation

9. In the event that you wish to cancel the contract for the project at any time after acceptance of the quotation, you shall pay all actual and reasonable costs and expenses incurred by us together with a reasonable administration fee, provided that you shall not be entitled to cancel the Contract once the project has commenced without the prior consent in writing of us.

10.We shall, without any liability, and without any prejudice to any other right it has in law or equity, have the right by notice to suspend or cancel in whole or in part any contract for the supply of goods or services to you if you fail to pay any money owing after the due date, or if you commits an act of bankruptcy as defined in section 19 of the Insolvency Act 2006, or if liquidation proceedings are commenced in relation to you, or if you shall otherwise become bankrupt or insolvent, or if any other event occurs which evidences a lack of credit worthiness or insolvency on the part of you. Any cancellation or suspension by us pursuant to this clause shall not affect our claim for money due at the time of cancellation or suspension or for damages for any breach of any terms of this contract or your obligations to us under these terms and conditions.

Price

11.The price of the project shall be the price stated in the quotation together with all extras selected by you. The price quoted for the project excludes GST. GST shall be payable by you in addition to the price quoted.

12.Where no price is stated in writing or agreed, the goods and/or services shall be deemed to be sold and/or supplied at the current price applying at the date upon which the invoice for the goods or services is issued to you.

13.Notwithstanding anything contained in this clause or the quotation, the price of the goods and/or services may be increased by the amount of any reasonable increase in cost of supply of the goods or services between the date upon which the quotation is delivered to you and the date upon which the goods or services are supplied and where such increase is beyond the reasonable control of us.

Margins (Mark-ups)

14.We are entitled to on-charge you for costs it incurs pursuant to this agreement, and to add a margin to the price it on-charges you. Those costs include (but are not limited to):

a. materials;

b. Sub-contractors (including Sub-trades, specialist contractors and contracted professionals and experts);

c. the costs of hiring plant and equipment;

d. Provisional Sums;

e. Prime Cost Sums;

f. costs incurred in variations or additional work;

g. travel and delivery costs; and

h. costs that are part of a variation or additional works (where there is no fixed price for the variation or additional works).

15.Subject to clause below, when we on-charges you for costs it incurs, that margin will be as specified in clause II of the Specific Provisions of the agreement (and, if no rate is specified, the margin will be 15%).

16.Our margin is not required to be limited to the percent specified in the Specific Provisions of the agreement (or to the 15% rate specified above) if that margin relates to costs that are:

Repair of Defects

a. already included in the stipulated price;

b. part of a variation or additional works ( where there is a fixed price for the variation or additional works);

c. already included in the hourly rates or costs specified in the Charge-up Schedule; or

d. rates for carpenters or labourers (or other workers) who are the Contactor’s employees or who regularly work under contract for us (on a basis that appears similar to an employer and employee relationship).

17.Where the project undertaken is of a commercial nature we shall at our sole cost rectify any defects in the materials or workmanship which are notified to us within ninety (90) days of completion of the project and within a reasonable time of receiving written notification of those defects. We shall not be liable under this clause to remedy:

a. defects covered by a manufacturer’s or supplier’s guarantee that is available to and may be enforced by you;

b. defects in or damage caused by work undertaken by you or the any of your contractors.

18.Where the project is of a residential nature any notification by you in writing to us within twelve (12) months from the completion of the project shall be rectified by us at our costs within a reasonable time of notification by you of the defect. We shall not be liable under this clause to remedy:

a. defects covered by a manufacturer’s or supplier’s guarantee that is available to and may be enforced by you;

Risk and Insurance

b. defects in or damage caused by work undertaken by you or the any of your contractors.

19.Any goods supplied by us shall be at the sole risk of us until the earlier of payment for the goods or delivery of the goods to you.

20.If the project involves an extension or alteration to existing premises, you shall be solely responsible for arranging an extension of your insurance policy to provide insurance cover for all associated risks.

Ownership

21.Ownership of any goods and/or materials supplied as part of the project shall not pass to you until all amounts owing by you to us in respect of the goods and/or materials have been paid in full.

22.you acknowledge and agree that by assenting to these terms and conditions, you grant a Purchase Money Security Interest to us, as that term is defined in the Personal Property Securities Act 1999 (“PPSA”), in all goods and/or materials supplied by us to you.

23.You irrevocably undertake to sign any further documents and/or provide any further information (which information you warrant to be complete, accurate and up-to-date in all respects) which we may reasonably require to enable registration of a financing statement or financing change statement on the Personal Property Securities Register. The costs of registering a financing statement or a financing change statement shall be met by you and may, where applicable, be debited against your credit account with us. you shall not agree to allow any person to register a financing statement over any of the goods supplied by us without the prior written consent of us and will immediately notify us in writing if you become aware of any person taking steps to register a financing statement in relation to such goods.

You:

24.waive the rights to:

a. receive a copy of any verification statement;

b. receive a copy of any financing change statement:

c. If the Goods are for your business use, you agree, to the extent Part 9 of the PPSA applies, that it will have no rights under Part 9 of the PPSA.

25.You irrevocably grant to us the right to enter upon your property or premises, without notice, and without being in any way liable to you or to any third party, if we have cause to exercise any of our rights under section 109 of the PPSA, and you shall indemnify us from any claims made by any third party as a result of such exercise.

26.we and you agree that nothing in sections 114(1)(a), 116, 117(1)(c), 119, 120(2), 121, 125, 126, 127, 129, 131, and 132 of the PPSA will apply to these terms and conditions, or the security interest under these terms and conditions.

27.you will be responsible to us for any costs or damages incurred in reclaiming and disposing of the unpaid goods and/or materials. Such costs include but are not limited to loss in value, cost or repossession, damaged premises and recovery, storage, resale and legal costs, on a solicitor and client basis. These costs shall be recoverable as a debt due to us by you.

Warranty and Liability

28.The warranties, descriptions, representations, or conditions whether implied by law, trade, custom or otherwise are, and all other liability of us, whether in tort (including negligence), contract or otherwise is, expressly excluded to the fullest extent permitted by law.

29.Insofar as we may be liable, notwithstanding anything contained in these terms and conditions, to the extent permitted by law the total liability of us whether in tort (including negligence), contract or otherwise for any loss, damage or injury arising directly or indirectly out of completion of the project or any other breach of our obligations is limited to the lesser of:

a. to the price of goods and/or materials complained of;

b. the cost of completing any necessary repairs/remedial work; or

c. the actual loss or damage suffered by you.

30.Except where statue expressly requires otherwise we are not liable in any event for any loss of profits, consequential, indirect or special damage, loss or injury of any kind suffered by you or any other person.

Collection and Use of Information

31.You authorise us to collect, retain and use any information about you for the purpose of assessing your creditworthiness and/or enforcing any rights under this agreement.

32.You authorise us to disclose any information obtained to any person for the purposes set out in this clause. Where you are a natural person, the authorities under this clause are authorities or consents for the purposes of the Privacy Act 1993.

Miscellaneous

33.We shall not be liable for delay or failure to perform its obligations if the cause of the delay or failure is beyond its control.

34.Failure by us to enforce any of the terms and conditions contained in this agreement shall not be deemed to be a waiver of any of the rights or obligations we have under this agreement.

35.If any provision of this contract shall be invalid, void or illegal or unenforceable, the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or implied.

36.You may not assign any of its rights or obligations under this agreement without the prior written consent of us.

Personal Guarantee

37.In consideration for us agreeing to complete the project at the request of you, where you are a company or trust, the directors or trustees signing this agreement also sign this agreement in their personal capacity and jointly and severally personally undertake as Principal debtors to us the payment of any and all moneys owed by you to us and indemnify us against non-payment by you.

Agency

38.You authorise us to contract either as you or agent for the provision of goods or services.

39.Where we enter into a contract of the type referred to this clause you agree to pay any amounts due under that contract.

40. Any list of proposed subcontractors supplied by us is provided on a without prejudice basis and we reserve the exclusive right to change subcontractors without adjustment to the quotation.

Dispute Resolution

41.In the event of a dispute or disagreement arising between we and you the party with a grievance may give written notice to the other party specifying the nature of the dispute or disagreement, the remedy sought and requiring that the dispute or disagreement be determined and settled in accordance with this clause.

42.On receipt of the notice, the parties shall each appoint a representative who has authority to determine the grievance or dispute, and those two representatives shall meet as soon as reasonably possible to see if they can determine the grievance. All discussions, meetings and correspondence between the two representatives shall be deemed without prejudice and without concession of liability and shall not be used by either party in any later proceedings unless:

a. Both parties agree; or

b. The two representatives reach agreement, but one party fails to honour such agreement.

43.If the two representatives cannot within fourteen (14) days of being appointed reach agreement on how the grievance or dispute is to be determined, the parties shall refer the dispute to an independent expert who is acceptable to both parties. If the parties cannot or do not agree on an independent expert within three (3) days of the first suggestion of a

suitable person, either party may ask the President of the New Zealand Law Society to nominate a person to act as an independent expert and the first person so nominated who is able and willing to be appointed shall be deemed the independent expert for the purposes of this clause.

44.The independent expert shall:

a. Set his or her own rules and procedure for the resolution of the grievance or disagreement

b. At all times act in good faith and in an unbiased way

c. Promptly hear and determine the dispute

d Provide a written decision (with reasons for that decision) if requested by either party.

The independent expert’s decision shall be binding on both parties, and costs shall be paid equally by the parties unless the independent expert decides otherwise in his or her decision.

45.Disputes in excess of ten thousand dollars ($10,000.00) shall be referred at our sole discretion to arbitration under the Arbitration Act 1996 or any subsequent Act passed in its place.

Mortgage

46.you agree that should any goods or materials (“Goods”) supplied by us be affixed or installed in a property such as to render them a fixture of that property, you agree that in consideration of we allowing the goods to be so affixed or installed, you shall upon written demand being made by us at any time but before payment in full is made to us, execute a Memorandum of Mortgage (“Mortgage”) over the property in which the goods have become a fixture in favour of us (to be prepared by our solicitors at your cost), for the amount equivalent to the unpaid balance owing plus any interest and costs owing thereon until paid in full. The terms of such mortgage shall be collateral to the terms hereof and payment in full of the amounts owing to us hereunder shall operate as a full discharge of the mortgage. we agree not to make demand on you to execute such a mortgage unless any of the following occur:

a. Failures to make payment on the due date as deemed by us;

b. Any composition with creditors, act of bankruptcy, winding up or receivership of the Customer.

47.The Mortgage referred to in this clause 18 hereof shall be the ADLS form approved by the Registrar General of Land 2007/4237, and the covenants of the said form whether executed by you or not shall be deemed to be included. You hereby authorise us to lodge and maintain a Caveat against the title to the property in which the goods have been affixed or installed for the protection of the agreement to mortgage described above should Contract in its absolute discretion consider it necessary to lodge such a Caveat. You hereby grant to us an irrevocable power of attorney in relation to the property in which the goods have been affixed or installed to enable us to execute the mortgage referred to in this clause 18 hereof should the

mortgage not be executed by us for any reason whatsoever PROVIDED THAT we will not execute a mortgage as attorney for you unless we have requested in writing that you execute the mortgage pursuant to the terms of this agreement and you have failed to execute such a mortgage within five (5) working days of such request. In such case you shall not request for the lapse of our caveat, and shall grant to us an irrevocable power of attorney to withdraw any request to the Registrar General of Land.

Adjustments (including Variations)

48.We have the right to include the cost of Adjustments provided for in this agreement with any staged payment, or by adjusting the Final Payment. If any Adjustments have not been invoiced at Practical Completion those Adjustments must be paid by you within seven (7) working days of the date of our invoice for those adjustments. We have the right to withhold possession of the Contract site until such payment has been satisfied by you in full and with all applicable penalty interests.

Governing Law

49.The within terms and conditions shall be governed by and construed in accordance with the laws of New Zealand and the parties shall submit to the exclusive jurisdiction of the New Zealand Courts.

*This Terms and Conditions is the property of Top Garden Limited, and any unconsented use is prohibited and may attract legal proceedings by Top Garden Limited.

We Design, We Build, We Maintain.

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TOUCH

admin@topgarden.co.nz

Tel  021-886-911   

​Pakuranga Heights, Auckland

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