1. FOR LANDSCAPE, GARDEN & EARTHWORKS SERVICES
The terms and conditions (“Terms”) as follows are incorporated in all agreements between Gumboots Gardens Ltd, trading as Nelson Landscape Design (“us/ we/ our”) and you, our customer, the person named in the Estimation, invoice and/or users of our website (“you/your”). In the event of any inconsistency between these Terms and any terms and conditions in the Estimation or invoice, these terms and conditions will take precedence.
We may modify and update these Terms at any time. In using our website and Services, you agree to be bound by these Terms as well as any and all general terms and conditions posted on our website from time to time. If you do not accept these Terms, you cannot use our website or any of our Services.
2. DEFINITIONS
“Commencement Date” means the starting date of the Services as further defined in the Estimation or advised to you.
“Earthworks” includes excavation, transporting, unloading and compaction of earth which may mean grading, drilling, profiling, septic tank work, retaining walls, concreting, paving and other project works from time to time.
“Estimation” means the Estimation provided to you regarding the supply of our Services.
“Goods” means any goods whatsoever supplied by us to you (and where the context so permits shall include any supply of Services as defined below).
“Practical Completion” means the date that we advise you that the Services are complete.
“Fee” means the price payable for the Goods and/or Services as invoiced to you by us.
“Goods” means the Earthworks and Landscaping supplies and or goods to be provided with the Services.
“Property” means your address, or the address where the Earthworks is located as further specified in the Estimation.
“Services” means the hire of equipment and operator to complete earthworks and landscaping works set out in our Estimation provided to you and any other services whatsoever supplied by us to you (and where the context so permits shall include any supply of Goods as defined above).
“Website” means nelsonlandscapedesign.nz or/and gumbootsgardens.co.nz
“You and Your” refers to you, the customer, the client, visitor, website user or person visiting our website.
3. ACCEPTANCE
The Estimation is an offer to you to request us to provide the Services at the price and subject to these Terms. The Estimation is valid for a period of 30 business days from its issue date, and if not accepted within that time will be deemed to have been withdrawn unless specifically agreed by us in writing.
You acknowledge that the Estimation is not a binding price for the Services and that you will be charged for actual Services carried out by us for you. Our Estimation is subject to an increase in cost in the event of unexpected additional work or a variation from the Services set out in the Estimation and any variation due to unforeseen circumstances, due to lack of or restricted access to the Property or as a result of increases to us in the cost of materials or labour.
Your acceptance of our Estimation or any instructions received by us from you for the supply of Goods and/or Services and/or your acceptance of Goods or Services supplied by us shall constitute acceptance of these terms and conditions.
4. PAYMENT
You agree to make prompt payment of our fees on the due date specified in the invoice. Any late, overdue or unpaid invoice amounts will incur interest at the rate of 2.5% per month. You will also be responsible for any debt collection costs and any legal expenses on a solicitor/client basis as a result of your unpaid invoice.
5. OUR OBLIGATIONS
We will complete the Services described in the Estimation or otherwise by agreement with you.
The Services will be performed by us or any employee, contractors, agents or representatives that we may employ or engage from time to time.
Any specific terms and requirements relating to the Services required by you must be agreed in writing and notified to us in advance. No other party is entitled to give us instructions including, but not limited to, instructions relating to the scope of the Services unless we receive written instructions from you.
We will provide the Services using reasonable care and skill and in accordance with your specific instructions, or, in the absence of instructions, using methods we may consider appropriate taking into consideration the relevant operational, financial or technical requirements.
We will use our best endeavours in providing the Services to:
(a) comply with all relevant statutes and regulations and any applicable industry standards and guidelines;
(b) comply with your reasonable directions;
(c) not to breach any third party rights; and
(d) to ensure the work performed to provide the Services is done in a professional manner and to a standard acceptable to you.
6. YOUR OBLIGATIONS AND WARRANTIES
You acknowledge and agree that:
(a) you will supply an outline for the Services and any Goods that we may require to complete the Services. All Services will be completed based on and in accordance with these instructions and the Estimation;
(b) you will provide all relevant information required for us to carry out the Services in a timely manner;
(c) you have ownership rights to the Property , and/or the right to grant us access to the Property and other areas outside the Property where access is required;
(d) you will ensure we or any representatives have all necessary accesses to the Property during normal working hours and will take all steps necessary to ensure the Property and the area where the Services are to be performed are in a safe and secure environment (including, by way of example, ensuring your pets are under control);
(e) you will provide water and electricity at the Property to us at no cost;
(f) you have obtained any required Council approvals before the Commencement Date of the Services unless expressly agreed in writing by us that we will obtain it for you for at which additional costs will be charged;
(g) you warrant, to the best of your knowledge, that the Property is free from any underground problems including pipes, cables, stumps, sewerage drains and waste materials and if there are such problems you have notified them to us in writing. You must advise us of the location of all underground services on the Property and clearly mark the same;
(h) you warrant there are appropriate, adequate and up-to-date current insurance policies to cover the Property, attendance by both us and any representatives of ours or third parties who may be necessary to perform the Services;
(i) you will make available all reasonable facilities as may be requested by us for the storage and safe keeping of our equipment at the Property; and
(j) you will use your reasonable endeavours to provide a suitable parking facility for use by us which is immediately close to the Property.
(k) You shall ensure that we have clear and free access to the Property at all times to enable us to undertake the Services. We shall not be liable for any loss or damage to the Property (including, without limitation, damaged pathways, driveways and concreted or paved or grassed areas) unless due to our negligence
In the event of a breach of the above warranties, you agree to indemnify us and agree we have the right to recover any reasonable costs incurred in relation to the warranty breach.
7. VARIATIONS
Any variations to the original Services as specified in the Estimation will incur additional costs. Variations may include, by way of example, changes to the scope, size or timing of the Services. In the event that we discover underground problems, such as pipes, rock beds or similar, that you have not notified to us prior to our issued Estimation or any existing issues that we discover that may be a problem such as toxic leaks, springs, buried debris or similar, we are entitled to charge you for any additional work necessary for us to complete the Services.
In the event that the Property is not available during normal hours, you do not provide water, electricity or storage or parking facilities, or you have not obtained Council approval, we are also entitled to charge additional costs.
Any variations you request because of change of mind or a change in the Services may be accepted or rejected at our discretion. Each variation including the additional costs must be agreed in writing by you prior to us proceeding.
8. DELAYS AND FORCE MAJEURE
Any time periods for the Services and delivery dates we provide you are estimates only. Any delays due to poor weather or other circumstance beyond our control will not invalidate our agreement with you. Time is not of the essence under these Terms.
If circumstances arise beyond our control that may prevent quoted Services as outlined in the Estimation from being performed as quoted, we will make all reasonable efforts to minimise the impact on the design and quoted Services. You acknowledge that this is possible and accept any action we may take to minimise the potential change in design. Any plants that are killed by neglect, natural disasters, animals or other reasons beyond our control will not be replaced.
Whilst we will use our best endeavours to complete the Services in agreed time frames we will not be liable for delay in performing any of our obligations.
9. ONGOING MAINTENANCE
We will notify you of Practical Completion after which you will be responsible for maintenance. You will then be responsible for the care of Goods, the Property and Earthworks completed, any lawn, and watering and weeding plants. After Practical Completion we are not responsible for damage to any structure, Earthworks, plants or landscaping through the elements, that we have no control over; including drought, winds, rain and frost.
10. DEFECTS
You must notify us of any defects in the Services attributable to us within the period of ninety (90) days from the Practical Completion date. We will use our reasonable endeavours to correct the defect. No claims may be brought after the expiry of ninety (90) days from the date of Practical Completion. We accept no liability for any defect which is attributable to you not complying with your obligations under these Terms, including by way of example, any incorrect information you supply to us.
We will not accept liability for efflorescence, or any colour or size variation in the Goods and materials which will be purchased or delivered as part of the work completed. We provide no warranty and accepts no liability whatsoever in respect of the condition or quality of the Goods and materials that are purchased and delivered to site from the supplier.
11. NO REFUNDS OR WARRANTIES
We do not offer any refunds for cancellations or if you change your mind. You acknowledge and agree that after we have received an accepted Estimation signed by or on behalf of you, we will have ordered Goods, and incurred time in designing and arranging the Services and cannot therefore provide a refund. Any deposit will be forfeited to cover our costs.
The Services we supply to you are rendered with due care and skill; fit for the purpose that we advertise, and will be supplied within a reasonable time for matters within our control. To the extent we are unable to exclude liability; our total liability for loss or damage you which you suffer or incur from our Services is limited to us re-supplying the Services to you, or, at our option, refunding to you, the amount you have paid for the Services to which your claim relates.
If the Goods are faulty, if they have been wrongly described, or are different from a sample we show to you, or do not do what they are supposed to do, then you may elect to exchange the Goods, receive a refund or credit. If the Goods are not of acceptable quality, do not meet extra promises like performance and condition, or you need spare parts and repairs you need to contact the manufacturer directly.
12. LIMITATION OF LIABILITY
To the extent permitted by law, we exclude all express or implied representations, conditions, guarantees, warranties and terms relating to the Services and this agreement, except those set out in this agreement, including but not limited to:
(a) implied or express guarantees, warranties, representations or conditions of any kind, which are not stated in the Terms;
(b) our Services being unavailable;
(c) loss, damage, costs including legal costs, or expense whether direct, indirect, incidental, special, consequential and/or incidental, including loss of profits, revenue, production, opportunity, access to markets, goodwill, reputation, use or any indirect, remote, abnormal or unforeseeable loss, or any loss or damage relating to business interruption, or otherwise, suffered by you or claims made against you, arising out of or in connection with your reliance on the Services, and/or the late supply of Services, even if we were expressly advised of the likelihood of such loss or damage.
This clause survives the expiry or termination of this Agreement.
13. TERMINATION
If you want to cancel the Services, please see the section No Refunds or Warranties. Otherwise, in the event of a breach of these Terms, by either party, and the breach is rectifiable and is not rectified within thirty (30) days after written notification to the other party, the first party may terminate the contract forthwith.
14. DISPUTES
If a dispute arises, both parties agree that confidentiality is paramount to the reputation of you and us. At no time will any communications or discussions be made public, including but not limited to any social media websites of either party.
In the event of any dispute on the work, quality or ownership, both parties agree to put in writing their concerns, and to meet to discuss a potential resolution, and use their best endeavours to do so. In the event that a resolution still cannot be reached, the parties agree to obtain an independent professional arbitrator/dispute resolution specialist to make a determination on the dispute and each of party agrees to pay their own costs.
15. ASSIGNMENT
We may sub-contract or assign this Agreement or part thereof. We may also engage individuals on a subcontract or consultancy basis to assist with provision of the Services, and need not seek your consent.
16. PRIVACY
We are committed to complying with Privacy Act 2020 (“PA”) and in accordance with our Privacy Statement. Any personal information received by us during the course providing the Services will be stored, managed and secured in accordance with the requirements of the PA.
17. WEBSITE DISCLAIMER
Whilst we, at all times endeavour to have and provide the most accurate, reliable and up-to-date information on our website, we do not warrant or make any representations regarding the Services, links or information or reliance on the advice or information in particular regarding the correctness, suitability, accuracy, reliability, or otherwise. We believe at all times our advice and information are provided in good faith.
18. INTELLECTUAL PROPERTY
We may take photographs of our work, images taken at various points during our Services, of your Property, materials, Goods or other (together ‘Content’). We may, from time to time, use this Content, provided it does not identify your personal property, show your street address or otherwise compromise your personal privacy, for our own promotional purposes, including in any advertisement, social media or other means to promote our services. In the event you do not wish us to do so, please notify us in writing in advance so that we have record of your preference.
All custom graphics, icons, logos and service names on our website are registered trademarks, copyright, trade or service marks of ours. Any redistribution or reproduction of part or all of the contents of our website, including, but not limited to our newsletters in any form is prohibited. All other trademarks or service marks within this website are the property of their respective owners. Nothing in these Terms grants you any right to use any trademark, service mark, logo, and/or our name.
You are solely responsible for obtaining written permission before re-using any copyrighted material that is available on this website and our newsletters. Any unauthorised use of the materials appearing on this website may violate copyright, trademark and other applicable laws and could result in criminal or civil penalties.
19. HEALTH & SAFETY
You agree to abide by any health and safety requirements set by us (including for the avoidance of doubt by our employees, agents and contractors), in relation to the correct use of our machinery and the carrying out of our Services in relation to the correct use of our machinery and the provision of our Services. You are responsible for providing a safe work area.
We do not accept responsibility for the incorrect or unsafe use of any Goods or Services.
20. CONSUMER GUARANTEES ACT 1993 (“CGA”)
You are a commercial customer if you require Goods from us for business purposes. If you are a commercial customer then you agree that he CGA does not apply in respect of the Services supplied to you.
21. OWNERSHIP
We retain ownership of Goods until they are paid for. We reserve the right to remove Goods if the unpaid debt remains after 90 days.