Rural Design (1984) Limited provides land-use advisory, ecological advice and landscape implementation services specialising in property design and large scale revegetation projects together with wholesale plant supply to customers (“the Customer”) on the following terms and conditions of trade:
1.1 “Additional Costs” means the cost of any additional Products and Services supplied by Rural Design arising from any alteration or change made to specifications of Products and Services in addition to the agreed Products and Services.
1.2 “Customer” means the Customer, together with any person acting on behalf of and with the authority of the Customer, or any person purchasing Products and Services from Rural Design.
1.3 “Estimate of Works” means price on offer for a fixed term subject to Clause 7 herein;
1.4 “Invoice” means any invoice or such other document including but not limited to any agreement for services specifying and itemising the costs of the Products and Services supplied by Rural Design to the Customer and recording the total amount payable by the Customer to Rural Design.
1.5 “Price” means the cost of the Products and/or Services invoiced by Rural Design to the Customer, including all incidental costs payable by Rural Design on the Customers behalf.
1.6 “Products and Services” means all advice, goods, materials, labour, products and services of any type and nature provided and supplied by Rural Design to any Customer including without limitation any costs directly related to the provision by Rural Design to the Customer of all such products and services.
1.7 “PPSA” means the Personal Property Securities Act 1999.
1.8 “Rural Design” means Rural Design (1984) Limited (Company Number 4420219) and includes any directors, employees and agents thereof.
1.9 “Terms” mean these Terms & Conditions of Trade as set out herein.
2.1 In consideration of Rural Design supplying to the Customer Products and/or Services the Customer warrants, undertakes and agrees:
2.1.1 That these Terms, together with any written or verbal agreement made between Rural Design and the Customer, form the contract between Rural Design and the Customer;
2.1.2 That it is the Customer’s responsibility to ensure that these Terms are promptly brought to the notice of any employee, staff member or representative of the Customer;
2.1.3 That any Invoice(s) issued by Rural Design to the Customer are deemed to be incorporated into and form part of this Agreement; and
2.1.4 That the Customer is authorised to commission Rural Design to supply any Products or Services.
3.1 Any instructions or directions received by Rural Design of either a written and/or verbal nature from the Customer for the supply of any Products and Services shall constitute acceptance by the Customer of these terms and the basis therefore on which any Products or Services are to be supplied by Rural Design.
3.2 Should more than one Customer instruct Rural Design in relation to the same supply of Products and Services, each Customer is jointly and severally liable for all amounts due and owing to Rural Design.
4. COLLECTION AND USE OF INFORMATION
4.1 For the purposes of the Privacy Act 1993, the Customer authorises or consents to:-
4.1.1 the collection, retention and use of any information about the Customer for the purpose of assessing the Customer’s credit worthiness, enforcing any rights under this agreement, or marketing any Products and/or Services provided by Rural Design to any other party; and
4.1.2 the disclosure of any information obtained to any person for the purposes set out in clause 4.1.1.
5.1 The Price shall be the amount shown on any Invoice(s) or other similar documents provided by Rural Design to the Customer in respect of any Products and/or Services supplied.
5.2 The time for payment of any Invoice issued by Rural Design for the supply of Products and/or Services shall be of the essence and will be stated on the Invoice but in case payment shall be due no later than 14 days following the date of any Invoice unless specified in writing.
5.3 Rural Design reserves the right to charge for any Additional Costs it considers reasonable in respect of any alteration or change made to specifications of Products and Services after any order has been placed, and to increase prices at any time to cover any increases (and without limitation) in the cost of labour, materials, government taxes, public holiday, exchange rates or delivery costs (where applicable).
5.4 Where not specified all amounts stated are exclusive of goods and services tax (“GST”) and are payable plus GST.
6. TERMS OF PAYMENT/LATE PAYMENT/DEFAULT
6.1 The Customer shall pay in full and without deduction or setoff any Invoice rendered by Rural Design
within the time stated on the Invoice, time being of the essence. Rural Design may require the Customer to pay a deposit at its discretion prior to commencing the supply of any Products and/or Services.
6.2 Rural Design reserves the right to charge interest on overdue unpaid Invoices at the rate of 2.5% per month or part month thereof on the balance outstanding from the due date until payment is received. The right to charge interest is without prejudice to Rural Design’s other rights in respect of non or late payment.
6.3 Without prejudice to any other remedies Rural Design may have, if at any time the Customer is in breach of any obligation (including but not limited to the obligation to promptly pay any Invoice), Rural Design may suspend or terminate the supply of any Products and/or Services to the Customer and any other obligations it may have to the Customer. Rural Design will not be liable to the Customer for any loss or damage the Customer may suffer where Rural Design exercises its right under this Clause.
6.4 In the event that:
6.4.1 any Invoice payable to Rural Design is overdue, or in the event that Rural Design reasonably considers that the Customer will not or is unlikely to be able to meet its obligations to pay an Invoice as it falls due; or
6.4.2 should the Customer become insolvent, or enters into an arrangement with its creditors, or makes an assignment for the benefit of its creditors; or
6.4.3 a receiver, manager, liquidator or similar person is appointed in respect of the Customer; Rural Design shall be entitled to cancel or withdraw in whole or in part its Products and/or Services to any Customer and without prejudice to any other remedies; and all amounts owing to Rural Design shall, whether or not due for payment, immediately become payable.
6.5 Rural Design reserves the right to recover from the Customer all costs and/or expenses incurred in the enforcement of any rights contained in these Terms, including but not limited to solicitor’s fees or debt collection agency fees.
7. ESTIMATE OF WORKS
7.1 In the event that the Customer requests an Estimate of Works from Rural Design for PGD Products and/or Services required, the Estimate of works shall be:-
7.1.1 valid for six (6) months from the date of issue;
7.1.2 exclusive of GST unless specifically stated otherwise;
7.1.3 deemed to interpret the Customer’s written and verbal instructions. The Customer must check Estimate of Works carefully and Rural Design will not accept any responsibility for any errors in the Customer’s specifications or instructions once Rural Design’s Estimate of Works
is accepted by the Customer;
7.2 Rural Design reserves the right to alter the Estimate of Works due to any circumstances beyond its control; and
7.3 In the event additional Products and/or Services are required from Rural Design which affect the Estimate of Works then Rural Design is entitled to Invoice the Customer for any such Additional Cost(s) the Customer agrees to pay for the Additional Cost(s) of such Products and Services.
8. TITLE AND SECURITY (PPSA)
8.1 Rural Design retains full legal and equitable title and ownership in any Products and/or Services supplied by it to the Customer and legal title to the Products and/or Services shall not pass to the Customer and there shall be no right to deal with, onsell or encumber Products and/or Services until all Invoice(s) rendered by Rural Design to the Customer (including delayed or deferred payments on a credit basis) have been paid in full and without deduction or setoff by the Customer to Rural Design in cash or as otherwise specified by Rural Design.
8.2 Rural Design reserves the right to enter onto the Customer’s premises or upon any third parties’ premises where Products and/or Services are located to take possession of Products and/or Services and Rural Design shall not be responsible nor liable in contract or in tort or in any manner whatsoever, unless by statute such liability cannot be excluded, for any damage caused or any loss that results from such action. The Customer hereby grants Rural Design and its agents an irrevocable licence to enter upon the applicable premises and to repossess Products and/or Services in the event of any default by the Customer under these Terms. Rural Design may resell any repossessed Products and/or Services and credit the Customer’s account with the net proceeds of sale (after deduction of all associated repossession costs including but not limited to storage, selling and other costs). Rural Design may also retain any repossessed Products and/or Services and credit the Customer’s account with the invoice value thereof less such sum as Rural Design reasonably determines accounts for depreciation, obsolescence, loss or profit and costs.
8.3 In the event the Credit Repossession Act 1997 becomes applicable to any transaction between the Customer and Rural Design, the Customer shall be subject to the rights provided in that Act notwithstanding any provision contained within these Terms.
9. SECURITY INTEREST FOR SERVICE PROVIDERS
9.1 The Contract constitutes a security interest in all of the Customer’s present and after-acquired Services that Rural Design has performed services on or to or in which goods or materials supplied or financed by Rural Design have been attached or incorporated.
10. SECURITY AGREEMENT
10.1 Despite anything to the contrary contained in these Terms and Conditions or any other rights Rural Design may have:
10.1.1 Where the Customer and/or the Guarantor (if any) is the Owner of land, realty, asset or property capable of being charged, the Customer and/or Customers Guarantor agree to mortgage and/or charge all or any of their joint and/or several interest in the said land, realty, asset or property to Rural Design to secure all amounts and other monetary obligations due and payable under these terms and conditions.
10.1.2 The Customer and/or the Guarantor acknowledge and agree that Rural Design shall be entitled to lodge where appropriate a caveat over the said land, realty asset or property.
10.1.3 Once all payments and other monetary obligations payable to Rural Design hereunder have been met the caveat shall be removed.
10.1.4 The Customer and/or Guarantor shall indemnify Rural Design against all of Rural Design’s costs, any disbursements and any legal costs incurred in the event Rural Design elects to proceed in accordance with this clause 10 and/or its sub-clauses.
10.1.5 The Customer and/or the Guarantor (if any) agree to irrevocably appoint Rural Design’s nominated attorney as the Customer’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause.
10.2 In consideration of Rural Design performing its obligations under any Invoice, the Customer covenants to execute and provide forthwith upon demand being made by Rural Design a valid mortgage in favour of Rural Design in the most current Auckland District Law Society form, prepared at the cost of the Customer, and a Client Authority and Instruction Form for an electronic transaction (in the current form as approved by the New Zealand Law Society (NZLS) and Registrar-General of Land) to enable the registration of a mortgage by e-dealing on the Landonline system at Land Information New Zealand (LINZ) over the Property to secure performance of any obligations owed by the Customer to Rural Design in respect of any Invoice for the supply of Products and Services.
11. DISPUTE RESOLUTION
11.1 Rural Design will endeavour to resolve any dispute between the Customer and itself or else by mediation which is to be conducted by an independent mediator appointed by agreement between both parties.
11.2 The Customer must make a claim relating to Products and/or Services within fourteen (14) days of delivery/completion to be considered by Rural Design subject to clause 11 herein.
12.1 Rural Design warrants that it will repair or make good any defects in the services provided under the
Contract, if written notice of the claim is received by Rural Design within fourteen (14) days from the date the Services were provided. No claim shall be accepted under such warranty if any attempt to repair the defective service is made by any person not authorised by Rural Design, or if the defective Service have been modified or incorrectly stored, maintained or used.
12.2 Rural Design provides no warranty in respect of any Products sourced by either Rural Design or the Customer, from another supplier, company or manufacturer. For the avoidance of doubt any warranty for any Product failure is to be sought by the Customer via the trade outlet through which the product was sourced. Rural Design will provide such details as necessary for the warranty to be sought in this manner by way of the first receipt of purchase.
13.1 Rural Design shall not be liable for any loss or damage of any kind whatsoever, arising directly or indirectly, from the supply of Products and/or Services to the Customer, including consequential loss whether suffered by the Customer or another person and whether in contract or tort (including negligence) or other legal principle.
13.2 In respect of any Services provided by Rural Design requiring the use of a digger or other such machinery, the Customer shall take all necessary precautions including but not limited to making enquiry with Vector and 0508 B4U Work (0508 248 967) to disclose to Rural Design or the operator of such digger or machinery the exact location and depth of all underground services. Rural Design shall not be liable for any loss or damage of any kind whatsoever to the underground services resulting from failure to disclose such details. The Customer shall indemnify Rural Design and the operator against all losses or fines resulting from any loss or damage of any kind whatsoever to such services that are not disclosed.
13.3 The Customer shall indemnify Rural Design against all other claims and loss of any kind whatsoever however caused or arising and without limiting the generality of the clause 12.1 whether caused or arising as a result of the negligence of Rural Design or otherwise, brought by any person in connection with any matter, act, omission, or error by Rural Design its agents or employees in connection with the Products and/or Services.
13.4 Rural Design shall not be liable for any loss or damage of any kind whatsoever, arising from a Customer supplied product where such damage does not arise through the fault of Rural Design’s workmanship.
13.5 Rural Design acknowledges that there are certain warranties, conditions and implications that are imposed by statute under the Consumer Guarantees Act 1993, the Fair Trading Act 1986 and other legislation which cannot by law (or which can only to a limited extent by law) be modified or contracted out of. Rural Design’s liability shall, in respect of such warranties, conditions and implications, where it is permitted, be excluded, or if it is unable to be excluded be applicable to the minimum extent as required by the relevant statute.
13.6 It is agreed between Rural Design and the Customer that should Rural Design be deemed liable to the Customer arising from the supply of Products and/or Services by it to the Customer, contrary to the disclaimer of liability contained within these Terms, that such liability is limited in its aggregate to $5,000,000.00 being the amount of Liability Insurance carried by Rural Design.
14. CONSUMER GUARANTEES ACT
14.1 The Consumer Guarantees Act 1993 will not apply to Products and/or Services acquired or supplied
to the Customer from Rural Design for the purposes of business use pursuant to sections 2 and 43 of that Act.
15. GENERAL PROVISIONS
15.1 In the case of conflict between these Terms or any other document provided by Rural Design, these Terms shall prevail except where expressly provided for otherwise.
15.2 Where Rural Design fails to enforce any Term or fails in any way to exercise its rights under these Terms, Rural Design shall not be deemed to have waived those rights with respect to any breach or subsequent breach of any Term.
15.3 If any of the Terms are held to be invalid, illegal or unenforceable for whatever reason, the remaining Terms shall remain in full force and effect.
15.4 Rural Design shall not be liable for delay or failure to perform its obligations if the cause of the delay or failure is beyond its control.
15.5 The Customer by engaging Rural Design to provide Products and/or Services does so on the basis that the Customer has read, understood and agrees to be bound by these Terms.