ROYAL TREE LIMITED
TERMS AND CONDITIONS OF TRADE (“Terms”)
1. APPLICATION OF TERMS
1.1 These Terms apply to all of the supplies of goods and 3.1 services from Royal Tree Limited (“Royal Tree”, “we”,
“us” or “our”) to you, the customer or your agent, employee or representative acting on your behalf 3.2 (“you” or “your”).
1.2 You agree to inform us who has your authority to act on your behalf. If you do not tell us who has authority, we may regard anything said or written by anyone apparently having authority to act on your behalf.
1.3 Where an agreement is entered into by an agent, the agent personally:
a. Warrants that the agent has the authority to act on behalf of and to bind you;
b. Indemnifies us from and against all losses, costs, expenses, penalties or damages we may suffer and
incur as a result of or arising out of any breach of
the contract by you or by the agent.
1.4 These Terms replace all earlier terms. Your acceptance of any goods or services from us indicates your continuing acceptance of these Terms.
1.5 You may have additional rights under the Consumers Guarantees Act 1993.
2. GOODS AND SERVICES
2.1 We agree to supply you the goods and services outlined in the Quote provided on these Terms.
2.2 You agree to pay for the goods and services included in the Quote and on the terms and conditions detailed in these Terms.
2.3 The Quote we provided to you is valid for 30 days.
3. DELIVERY AND RISK
3.1 If applicable, you agree to pay all delivery costs. If we deliver any order in instalments, then each delivery is a separate contract on these Terms.
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 All claims for shortage or delivery damage must be made to the carrier and to us within 5 business days after the date of the delivery, or in the case of non- delivery, within 2 business days of the due date for delivery.
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.
4.1 Any request for variations for goods or services which has already been quoted must be in writing. If we agree to the request for a variation, we may;
a. Make a corresponding adjustment to the quoted or estimated price and charge any additional costs;
b. Extend any time frame which has been given for completion of the work to accommodate the variations; and
c. Require evidence of your ability to pay for the variation.
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.
4.3 The Quote that we have provided to you relates to the property and conditions on site at the time of quoting (“Site Conditions”). If the Site Conditions have changed and result in an increased cost to us, you agree to pay any increase in costs resulting from the change in the Site Conditions. Increased costs may occur if your site materially changes or if there are other contractors performing work on the site at the time and for the duration we are booked to complete the services.
4.4 If we have acted on an oral instruction from you and incurred an extra expense in carrying out any variations, a fair price for the variation will be added to the Quote.
4.5 If a variation is requested after the completion of the services agreed in the Quote; the variation (even if only minor) may be treated as a new request for services and subject to additional fees or a new quote.
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 otherwise in force at the date when you placed the order or request our services. Prices are subject to alteration without notice.
5.2 Unless we state otherwise in writing, quoted prices are exclusive of GST. Where any quotation is based on an estimated quantity of materials or labour cost, the price will be adjusted according to the actual amount of materials used and labour required to complete the services.
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.
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
6.1 Unless we have agreed in writing to extend credit to you, payment is due on the date stated on the Quote and invoice (“Due Date”). The Due Date will generally be on the completion of our services and within 7 days of the invoice date.
6.2 For particular goods and services, we may require you to pay either deposit or the total amount prior to delivery of the goods or commencement of the services as identified on the Quote.
6.3 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 by the Due Date. Your payment is made only when funds have fully cleared through the banking system into our bank account.
6.4 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.
6.5 If you have not paid in full by the Due Date, 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.
6.6 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.
6.7 Property and ownership of goods, whether in original form or after planting, 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.
6.8 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.
6.9 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.
6.10 If you have not paid for the goods, and we reasonably 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 land 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.
6.11 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.
6.12 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. 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 been planted. The goods and services subject to the security interest will be described on our invoices.
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.
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.
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.
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.
7.6 If we repossess goods in accordance with these Terms, 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 goods to you.
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.
8.1 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.
8.2 However, nothing in these Terms or in the returns policy will limit or affect any rights that a non-business customer may have under the Consumer Guarantees Act 1993.
9.1 If any dispute or difference arises in connection with the service or invoices supplied by us, or any other matter pertaining to the contract between us and you; you agree to give notice to us in writing within 5 days of either becoming aware of the matter in dispute or receipt of the invoice.
9.2 If the dispute relates to an invoice, you agree to specifically identify and provide details outlining the service or amount in dispute prior to the due date of the invoice. Upon identification of the disputed item, all other aspects and charges in the invoice remain valid and payable by you as per our payment terms detailed in these Terms. Any dispute raised after the due date of the invoice is invalid and the full amount of the invoice remains payable and may incur interest and subject to the costs and fees detailed in these Terms.
9.3 If the parties are unable to resolve the dispute personally or through their legal representatives, the parties agree to refer the matter to the Disputes Tribunal.
10. LIMITATION OF LIABILITY AND CLAIMS FOR DAMAGE
10.1 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.
10.2 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 the provision of the services to you.
10.3 Where we supply goods to you; you acknowledge that the goods may require specific care and environmental conditions to survive and grow. You agree on delivery of the goods to your site, that you are solely responsible for the care, survival and maintenance of the goods.
10.4 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.
10.5 Subject to clauses 10.1 – 10.4 (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 a supplier), indirect or consequential loss, loss of contracts, loss of products, damage caused by or arising from delays in delivery, or faulty or delayed removal, 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 goods or the provision or supply of the services.
10.6 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.
10.7 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.
11. PERSONAL INFORMATION
11.1 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.
11.2 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.
12. ACCESS, HAZARDS AND SAFETY
12.1 If we are providing arborist and landscaping services within your property, it is important that we have uninterrupted access to those areas of your property that we will be providing the goods or the services.
12.2 Every effort is made to work safely and cautiously, but we cannot assume liability for the safety of others. This includes children and pets or other contractors. 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 at your property. We ask that you keep areas clear of all hazards including equipment, vehicle, garden furniture, children and animals or other personnel or items before we arrive so the time we spend in your property can be as efficient as possible.
12.3 It is your responsibility to clearly identify where all hazards, pipes, lines, and underground services are located where we are completing the services on your property.
12.4 You are required to advise us of any trees, buildings or plant life that are protected.
12.5 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.
13.1 You indemnify and keep indemnified Royal Tree, our employees, and agents in respect of any claim or demand made or action commenced by any person (including, but not limited to, you) against Royal Tree or, for which we are or may be liable, in connection with any loss arising from or incidental to the provision of goods or services, or the subject matter of these Terms.
13.2 This includes, but is not limited to, any legal costs incurred by us in relation to meeting any claim or demand or any party/party legal costs for which we are or may be liable in connection with any such claim or demand.
13.3 This provision remains in force after the termination of these Terms.
14. GENERAL CONDITIONS
14.1 Tree/s identified by you which you would like us to prune or remove may be protected by a local or regional authority. Where it is necessary to obtain consents from the relevant authorities, it will be the responsibility of you as the owner, unless we are authorised by you to carry out this service. We may request written evidence from you that you are authorised to trim, cut, or remove the tree.
14.2 You acknowledge, that if we become aware of native birds or other protected species on your property, we are not permitted by law to disturb them. This may impact the services we provide you and result in an increase in the costs we charge you and the time frame we provide the services. You agree to pay any increase in cost associated with the protected species.
14.3 Investigation of private covenants and boundaries shall be your responsibility and no liability shall be attached to Royal Tree for a breach of any such covenant or boundary. You must obtain written permission from all tree owners and interested parties prior to Royal Tree commencing work.
14.4 Unless the exact location of underground pipes, wires, cables or soak holes has been supplied to us prior to the formation of the contract, we are under no liability for any damage caused to them under this agreement. You are solely liable for any such damage and subsequent damage to our equipment.
14.5 The Quote is based on the assumption that the trees/stumps are free from metal, wire, stone or other hidden obstructions or foreign materials (“Obstructions”). In the event of a tree being impossible to fell in normal conditions, we reserve the right to re-quote accordingly. The client agrees to notify us of any Obstructions present. If any Obstructions are found to be in trees or shrubs being cut and that damage occurs to our saws, machinery or equipment from striking the materials, we reserve the right to charge a “Strike Fee”. If applicable, you agree to pay the Strike Fee in addition to the price contained in the Quote and in accordance with these Terms.
14.6 In relation to our stump related services, you agree and acknowledge:
a. Unless otherwise stated in the Quote, stump
removal is not included in the services; stumps will generally be cut to within a 100mm of ground level.
b. Oversized stumps or stumps contaminated with Obstructions may be left higher than 100mm.
c. Where you request that stumps are ‘ground out’ or removed below 100mm, we will specify an estimated depth to which the stumps may be ground to in the Quote. The actual depth is subject to variation as a result of any Obstructions hindering or prohibiting grinding or removal.
14.7 You accept full responsibility for the driveways and paths and you acknowledge that to carry out the services specified in the agreement, it may be necessary for us to use heavy machinery that could damage driveways and paths. We will not be liable for damage caused to driveways and paths. You shall ensure that the Royal Tree has clear and free access to the work site at all times to enable us to undertake the services.
14.8 Any additional work or equipment required to complete the services caused by your failure to make known or caused by previously unknown Obstructions in the trunk, the branches, underground, or any other condition not apparent at the time of quoting, shall be paid for by you on a time and material basis.
14.9 We will attempt to minimise any disturbance to your lawn and property. Repairs are not included in the contract price, unless otherwise noted in the Quote.
14.10 All wood and wood chips removed from site shall be deemed the property of Royal Tree unless specifically agreed in the Quote.
14.11 Where a fence needs to be temporarily removed for the services to be carried out it is your responsibility to remove the fence prior to us providing the services. It is your responsibility re-erect the fence after the services has been completed.
14.12 If Royal Tree cannot gain full access to your property on the agreed day and cannot complete the job as quoted, you agree to pay a further travel fee related to the additional distance travelled.
14.13 We may change these Terms from time to time by notice to you in writing which may be by email.
14.14 If we fail to enforce any terms or to exercise any right under these Terms at any time, we have not waived that right.
14.15 You may not assign or sub-contract any of your rights or obligations under these Terms.
14.16 If any provision of these Terms 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.
14.17 Any agreement between us is governed by the laws of New Zealand.
14.18 Any dispute is subject to the exclusive jurisdiction of the New Zealand Courts.