Terms and Conditions.
Sarah Louise Landscapes is a landscape designer who oversees the process from design through the construction phase and collaborates with engineers, architects and other key consultants – on behalf of clients and subject to the following terms and conditions.
Please read these Terms and Conditions carefully, as they set out each of our legal rights and obligations in relation to the Design Services.
1. Definitions and interpretation
1.1. In these Terms and Conditions:
1.2. “Agreement” means our contract with you for the supply of Design Services incorporating these Terms and Conditions, and any amendments to such a contract from time to time;
“Business Day” means any weekday, other than a bank or public holiday in Auckland;
Concept” means the ideas and suggestions provided by us in 2D or 3D plans or images detailing the proposed changes to the premises;
“Consumables” means the landscaping consumables used by the Provider in the course of providing the Design Services;
“Contract Term” means the period specified as such in the Quote;
“Customer” “you” and “your” means the customer for Design Services, as identified in the Quote;
“Design Services” means the landscaping Design Services supplied as detailed out in our Quote (or, to the extent that no such details are set out in the Quote, details of which will be agreed between the parties acting reasonably from time to time);
“Effective Date” means the date when the Provider receives a confirmation from you of the Quote within the period of 30 days following the date of our providing the Quote to you;
“Equipment” means the landscaping equipment used by the Provider in the course of providing the Design Services;
“Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the party affected (including Government orders, pandemic, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks, vehicle and/or mechanical breakdowns, and wars).
“Goods” means all Goods, including without limitation landscaping supplies, plants and materials, provided by us to you at your request from time to time (where the context so permits the terms ‘Design Services’ or ‘Goods’ shall be interchangeable for the other).
“Premises” means your premises where we will provide the Design Services, as specified in the Quote;
“Price” means the price payable by you to us in respect of the Design Services and/or Goods as agreed between the parties in with Clause 5 (Price and payment);
“Provider” “we” “us” and “our” means Sarah Louise Landscaping (“”SLL”) and its successors and assigns or any person acting on behalf of and with the authority of SLL;
“Project Management” means the planning and organisation of achieving the concept and supervision of the concept installation;
“The Party” or “the Parties” in these Terms and Conditions shall mean the Customer and the Provider together;
“Quote” means the work document issued to the Customer setting out the scope of work and the Price;
“Scope of Work” means the schedule of Design Services and/or Goods requested by you and agreed to by us, and/or as detailed in our Quote to you.
“Variation” means Design Services and/or Goods additional to, or significantly different to, the original Scope of Work, as requested by you or your duly authorised representative from time to time in writing.
2. Interpretation
2.1. In these Terms and Conditions, a reference to a statute or statutory provision includes a reference to:
2.1.1 that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and
2.1.2. any subordinate legislation made under that statute or statutory provision.
2.2. The Clause headings do not affect the interpretation of these Terms and Conditions.
2.3. In these Terms and Conditions, “persons” includes companies, partnerships, limited liability partnerships, unincorporated associations and trusts.
3. Acceptance
3.1. Any instructions received from you for the supply of Design Services shall constitute your acceptance of the terms and conditions contained herein.
3.2. Upon your acceptance of these terms and conditions the terms and conditions are irrevocable and can only be rescinded in accordance with these terms and conditions or with our written consent.
3.3. These terms and conditions are to be read in conjunction with our Scope of work as provided to you. If there are any inconsistencies between these documents then the terms and conditions contained in this document shall prevail.
3.4. You shall give us not less than fourteen (14) days prior written notice of any proposed change of ownership or effective control where you are a non-natural person (e.g., a company) or any change in your name and/or any other change in your details (including but not limited to changes in your address). You shall be liable for any loss incurred by us as a result of your failure to comply with this clause.
4. Design Services
4.1. We will provide the Design Services to you in accordance with the Scope of work, and at all times in a professional manner and in accordance with appropriate standards.
4.2. The time for delivery of the Design services will not be of the essence of the parties’ agreement.
4.3. We may suspend the provision of the Design services if you fail to pay by the due date any amount due to us.
4.4. From time to time during the Contract Term we may be unable to supply the Design services by reason of personnel illness or personnel shortage, in which case:
4.4.1. we will use reasonable endeavours to engage alternative personnel to supply the Design services; and
4.4.2. any failure to supply the Design services arising out of such inability shall not be considered a breach of these terms.
4.5. We will ensure that all personnel involved in the provision of the Design services have:
4.5.1. been interviewed by us;
4.5.2. supplied proof of identity and satisfactory references to us; and
4.5.3. are competent and suitably experienced and have been properly trained in the provision of the Services and Materials.
4.6. Additional Design services requested by you that are outside the Scope of work must be in writing. Upon a written request for additional Design services, we will provide a Price for your approval and upon approval the Price (and subsequent invoices) will be adjusted accordingly.
5. Price and Payment
5.1. At our sole discretion the Price shall be either;
5.1.1. as indicated on invoices provided by us to you in respect of Design Services supplied; or
5.1.2. the Price quoted on our Quote (subject to clause 5.2) which shall be binding upon us provided that you shall accept our quotation in writing within thirty (30) days.
5.2. We reserve the right to change the Price:
5.2.1. if a Variation to the Goods which are to be supplied is requested; or
5.2.2. if a Variation to the Design Services originally scheduled is requested; or
5.2.3. in the event of increases to us in the cost of labour or Goods, which are beyond our reasonable control (including, without limitation, foreign exchange fluctuations, or increases in taxes, customs duties or insurance premiums).
5.3. Design Services: A 50% deposit is required for Design Services on acceptance of our Quote. Any deposit taken shall be applied against our final invoice.
5.3.1. The balance of our fee Design Services fee is on completion of the work or within two weeks of the finalised concept being delivered, whichever comes first.
5.4. Project Management: Project Management hours shall be invoiced at the rate set out in our Quote or as otherwise agreed in writing.
5.5. Time for payment of our invoices shall be of the essence and payment shall be due 7 days from the date of invoice.
5.6. Payment must be made in cleared funds by direct credit via electronic/online banking to the account specified on our invoice, or by any other method stipulated by us.
5.7. GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.
6. Provision of the Scope of Work
6.1. We agree that we shall make every endeavour to provide the Scope of Work at the time and place as stipulated by us. In the event that we are unable to provide the Scope of Work as agreed solely due to any action or inaction of yours then we shall be entitled to charge a reasonable fee for re-providing the Scope of Work at a later time and date.
7. Risk
7.1. We carry public liability insurance cover in the amount of $1 million for any one event where any of our acts or omissions causes loss to any third party.
7.2. Notwithstanding clause 7.1 you indemnify us against any claim in relation to any direct or indirect loss or damage caused by your reliance upon any professional or expert advice or recommendations provided to you by us.
7.3. In addition to the indemnity provided herein you expressly agree that we shall not be liable for any claim in relation to any direct or indirect loss or damage resulting from:
7.3.1. any item requiring specialist engineering, architectural or other advice;
7.3.2. any planting failure due to unforeseen circumstances or outside of our knowledge including, but not limited to, microbial activity, water, drainage, underground conditions, installation procedures, or the original source of plants;
all of which shall be the responsibility of the Client and/or the main contractor.
7.4. To the extent that any liability can be attributed to us it shall be limited to an amount the sum of which is equivalent to the value of the Design Services and/or Goods on the relevant Quote.
8. Limitations and exclusions of liability
8.1. Nothing in these Terms and Conditions will:
8.1.1. limit or exclude the liability of a party for death or personal injury resulting from negligence;
8.1.2. limit or exclude the liability of a party for fraud or fraudulent misrepresentation by that party;
8.1.3. limit any liability of a party in any way that is not permitted under applicable law;
8.1.4. exclude any liability of a party that may not be excluded under applicable law; or
8.1.5. limit or exclude any statutory rights that a party has as a consumer.
8.2. The limitations and exclusions of liability set out in this Clause 8 and elsewhere in these Terms and Conditions:
8.2.1. are subject to Clause 8.1; and
8.2.2. govern all liabilities arising under the Agreement or in relation to the subject matter of the Agreement, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty.
9. Force Majeure Event
9.1. We will not be liable to you for any losses arising out of a Force Majeure Event.
10. Accuracy of Your Specifications
10.1 In the event that you give us specifications for the Design Services and/or Goods required it is your responsibility to verify the accuracy of the specifications before we perform Design Services and/or provide Goods based on those specifications.
10.2. We accept no responsibility for any loss, damages, or costs however resulting from your failure to comply with this clause 10.
10.3. We shall not be liable for any errors in the Design Services and/or Goods which are caused by design fault, by incorrect or inaccurate data being supplied by you or by any difference between the specification in the Scope of Design Services provided by you and the actual Design Services as completed. Any additional Design Services and/or Goods which may be required to rectify such errors shall be your responsibility and shall be charged as a Variation in accordance with clause 5.2.
11. Design concepts Responsibility and Liability
11.1. Our designs are conceptual only. All symbols on the plan are diagrammatic and for conceptual reference only with incidental hardscaping and structural elements included as artistic representations only to illustrate the conceptual ideas presented and are subject to survey and design by related appropriate professionals such as civil engineers, general building practitioners, and landscaping contractors if and when required.
11.2. It is the Client’s, and contractors’, responsibility to ensure that:
11.2.1. all work complies with New Zealand standards, New Zealand building codes and local authority requirements;
11.2.2. that relevant consents are obtained where required; and
11.2.3. to ensure the drainage of the site is appropriate for the function of the design.
11.3. The Client’s contractors are responsible for the verification of all measurements on site, including levels, prior to commencement of any work, and for location of all underground Design Services and boundaries onsite prior to any excavation or construction. All dimensions noted in the concept design will need to be measured and assessed by the Client and their contractors onsite and not scaled from our drawings.
12. Intellectual Property
12.1. Where we have been commissioned by you to design, draw, write, plan or draft a plant schedule in a Scope of Work for Design Services under commission to you, then notwithstanding the provisions of section 21 of the Copyright Act 1994, the copyright and other intellectual property rights in all such designs, drawings, writing, plans, schedules, including the know-how utilised or developed in performing the Design Services and/or providing the Goods shall remain vested in us, and shall only be used by you in accordance with this agreement or with our express written permission.
12.2. You warrant that all designs, specifications or instructions given to us by you will not cause us to infringe any copyright, patent, registered design, or registered or unregistered trademark in the execution of the Scope of Work and you agree to indemnify us against any action taken by any third party against us in respect of any such infringement caused by our use of the designs, specifications or instructions given to us.
12.3. You agree that we may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings, plans or digital media included in the Design Services provided by us to you, or Goods which we have created for you.
13. Default and Consequences of Default
13.1. Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at our sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
13.2. If you owe us any money you shall indemnify us from and against all costs and disbursements incurred by us in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, collection agency costs, and bank dishonour fees).
13.3 Without prejudice to any other remedies we may have, if at any time you are in breach of any obligation (including those relating to payment) under these terms and conditions we may suspend or terminate the provision of Design Services and/or Goods to you. We will not be liable to you for any loss or damage you suffer because we have exercised our rights under this clause.
14. Termination
14.1. Without prejudice to our other remedies at law we shall be entitled to cancel all or any part of any Design Services not yet performed or Goods not yet provided to you and all amounts owing to us shall, whether or not due for payment, become immediately payable if:
14.1.1 any money payable to us becomes overdue, or in our opinion you will be unable to make a payment when it falls due; or
14.1.2. You become insolvent or bankrupt, convene a meeting with your creditors or propose to or enter into an arrangement with creditors, or make an assignment for the benefit of your creditors; or a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of you or any asset of yours; or
14.2. Either party may cancel any contract to which these terms and conditions apply or cancel the provision of the Design Services and/or Goods at any time by giving 14 days written notice to the other party. We shall not be liable for any loss or damage whatsoever arising from such cancellation.
14.3. If this Agreement is cancelled under clause 14.2 all amounts owing to us for all or any part of any Design Services already performed or Goods already created, whether or not they have been provided to you, shall become immediately payable.
15. Effects of termination
15.1. Upon termination of this Agreement, all the provisions of these Terms and Conditions and our Quote will cease to have effect, save that the following provisions of these Terms and Conditions will survive and continue to have effect (in accordance with their terms or otherwise indefinitely): Clauses 1, 2, 5, 7, 8, 12, 13, and 15 to 20.
15.2. Termination of this Agreement will not affect either party’s accrued liabilities or rights (including accrued rights to be paid) as at the date of termination.
16. Personal Property Securities Act 1999
16.1.You acknowledge that this Agreement creates a security interest ("security interest") (as that term is defined in the Personal Properties Securities Act 1999 ("PPSA")) in the Goods. You will, if requested by us, sign any documents (including any new agreements), provide all necessary information and do anything else required by us to ensure that the security interest is a perfected security interest (as that term is defined in the PPSA).
16.2. You will not enter into any agreement which permits any other person to register any security interest under the PPSA in respect of the Goods without our prior written consent.
16.3. If the Goods are for your business use, you agree, to the extent permitted under the PPSA and unless we agree by notifying you in writing, that you will have no rights under Part 9 (Enforcement) of the PPSA. For example, but without limitation, you will have no rights under sections 114(1)(a) and 116 (to receive notice of sale and statement of account), sections 121(2) and 122 (to receive any proposal or object to any proposal to retain the Goods), sections 125 and 129 (relating to removal of accessions), and sections 132 and 133 (to redeem the Goods or reinstate the contract).
16.4. You waive your right under section 145 of the PPSA to receive a copy of any verification statement or financing change statement (as those terms are defined in the PPSA).
17. Dispute Resolution
17.1. We will endeavour, but will not be required to resolve all disputes between you and us amicably provided that if we cannot resolve a dispute, then no proceedings will be issued in Court in respect of the dispute without the dispute first being mediated by a single mediator appointed by agreement between the parties and failing agreement and on the application of one of them, by the Chief Executive Officer for the time being of the Resolution Institute of New Zealand.
18. Compliance with Laws
18.1. The parties shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to performance of the Design Services, including any occupational health and safety laws relating to entertainment venues and/or performance sites and any other relevant safety standards or legislation.
18.2. You shall obtain (at your expense) all licenses, consents and approvals that may be required for performance of the Design Services.
19. Privacy Act 2020
19.1. You authorise us or our agent to:
19.1.1. access, collect, retain and use any information about you;
19.1.1.1. (including any overdue fines balance information held by the Ministry of Justice) for the purpose of assessing your creditworthiness; or
19.1.1.2.for the purpose of marketing products and services to you.
19.1.2. disclose information about you, whether collected by us from you directly or obtained by us from any other source, to any other credit provider or any credit reporting agency for the purposes of providing or obtaining, a credit reference, debt collection or notifying a default by you.
19.2. Where you are a natural person the authorities under clause 19.1 are authorities or consents for the purposes of the Privacy Act 2020.
19.3. You shall have the right to request a copy of any information about you retained by us, the right to request us to correct any incorrect information about you retained by us, and the right to request us to delete any information about you held by us.
20. General
20.1. Our failure to enforce any provision of these Terms and Conditions shall not be treated as a waiver of that provision, nor shall it affect our right to subsequently enforce that provision.
20.2. If any provision of these Terms and Conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
20.3. Nothing in this Agreement will constitute a partnership, agency relationship or contract of employment between the parties.
20.4. These Terms and Conditions and any contract to which they apply shall be governed by the laws of New Zealand and are subject to the exclusive jurisdiction of the courts of New Zealand.
20.5. In the event of any breach of this contract by us your remedies shall be limited to damages. Under no circumstances shall our liability exceed the Price payable under this Agreement.
20.6. You shall not be entitled to set off against or deduct from the Price any sums owed or claimed to be owed to you by us.
20.7. We reserve the right to review these Terms and Conditions at any time. If, following any such review, there is to be any change to these Terms and Conditions, then that change will take effect from the date on which we notify you of such change. You will be deemed to have accepted such changes if you make a further request to provide any Design Services and/or Goods.
20.8. You warrant that you have the power to enter into this agreement and have obtained all necessary authorisations to allow you to do so, you are not insolvent and that this agreement creates binding and valid legal obligations on you.
20.9. Subject to Clause 5.2 neither these Terms and Conditions nor any Quote/Order Confirmation may be varied except by a written document signed by or on behalf of both of the parties.
20.10. This Agreement is entered into for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement relating to this Agreement are not subject to the consent of any third party.