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terms of trade


Terms of Trade


1. How these Terms Apply You are taken to have
exclusively accepted and are immediately
bound, jointly and severally (where there is
more than one purchaser), by these terms of
trade when any one of the following occurs:

a. place an order for any Goods and Services
from us; and/or
b. accept delivery of any Goods from us;
c. accept our Services by permitting entry by
us to your premises or nominated site to
perform Services, works or install any
Goods; and/or
d. issue a purchase order to us following
receipt of a Quote/Cost Estimate,
and together these terms apply in conjunction
with any specific exclusions or additional terms
specified in any Quote/Cost Estimate.

2. Our Contract Your acceptance of the
Quote/Cost Estimate and these general terms
together constitute our agreement with you
(this Contract). This Contract governs the
agreement between ACE OF SPADES LIMITED
(COMPANY NUMBER 2206801) (“us”, “our” or
“we”) and you, the named customer in the
Quote/Cost Estimate, in respect of the Goods
and Services.

3. “Business Days” Any reference to ‘Business
Days’ in these terms means a day on which
banks are ordinarily open and excludes a
Saturday, a Sunday or a public holiday. Any
other reference to a ‘day’ shall mean a
calendar day.

4. “You” Means the client engaging us for the
purchase of the Goods and Services as
specified in any invoice, order, Quote/Cost
Estimate or any other document. If the
purchaser comprises more than one person,
each of those persons’ liability and agreement
is joint and several.
“Us, “Our,” or We” in these terms includes any
contractor, employee, assignee, agent,
transferees or approved subcontractor that we

5. “Us, “Our,” or We” in these terms includes any
contractor, employee, assignee, agent,
transferees or approved subcontractor that we


6. Goods and Services Our Services include:

a. landscaping works including planting,
construction, paving, concreting,
retaining, fencing, and any other services
described in our Quote/Cost Estimate
where the context requires; and
b. any works performed relating to tree
removal, tree pruning, tree management,
stump grinding, firewood preparation; and
c. design and planning services including
landscape architecture planning and
design consultation, design services, and
project management service; and
d. lawn care, gardening, exterior clearance
and exterior property maintenance
services; and
e. any works performed relating to drainage
system design, maintenance, installation,
cartage, civil works services; and/or
f. the supply of Goods and materials
required in connection with any of the
Services described in the Quote/Cost

and together these are the Services or the
Goods in these terms as the context requires.

7. Subcontractors Either we or our approved
subcontractors will perform the Services for

8. Performance We will perform our Services
with due skill and care and in a competent
manner. All Goods and materials supplied as
part of the delivery of the Services will be fit for
purpose for the proposed use and unless
agreed with you, will be new.

9. Plans, Drawings and Specifications All plans,
drawings and specifications accompanying
these terms, including any variations to such
plans, drawings and specifications, form part of
this Contract.

10. Updates on Timing We will advise you of any
anticipated delay to provide a Service or
procure Goods.

11. Certificate of Completion and Record of Work
If required by law, we will give you any certificate or similar document as needed to confirm the design Services are completed.

12. Work May be Performed in Instalments We
may perform the Services and related works in
instalments on different dates.



13. Customer Supplied Materials Where you
supply any fittings, structures or materials for
your Services, these are not guaranteed by us
and we shall not be liable for any delays or
additional costs and expenses incurred by you
due to incorrect dimensions, colours, finishes,
or any other reason that results in your
customer supplied materials not being suitable
or fit for purpose. To avoid doubt, customer
supplied materials are not ‘Goods’ under this

14. Exclusions We may list job specific exclusions
in our Quote/Cost Estimate and such
exclusions are incorporated into these terms.

15. Separate Contractor Engagement and Fees
You must engage the applicable contractor
independently and meet all their fees, costs
and expenses directly unless we expressly
agree to engage them as our subcontractor as
part of our Services.

16. Co-Ordination with Separate Contractors We
shall co-operate with any separate contractors
you engage to assist with your project subject
to an hourly rate for project co-ordination.
These include, but are not limited to:
a. Builders; and/or
b. Other tradespersons; and/or
c. Architects


17. Authority for Approval Decisions You must
nominate a single individual with authority to
give instructions or approval to us, and where
you are working with a professional consultant
that you wish to delegate approval and
authority to, you must provide us with written
confirmation of their contact details and basis
on which approval or instructions can be
accepted by us.
18. Boundary Access and Consent Where our
Services require an adjacent property owner boundary to be crossed or utilised for access,
you must obtain consent from the adjacent
landowner and boundary markings must be
clearly visible and present.

19. Other access where any other specific method
of access if required, you must arrange this and
communicate this to us in advance.

20. Consents You must make your own enquiries
relating to the requirement of any consents
required to enable us to perform the Services.
You must arrange for all such consents to be
obtained at your sole cost unless we have
expressly agreed to perform this as your agent
in our scope of works.

21. Certifications You are responsible for
arranging all and any applicable compliance
certification for the works and Services at your
sole cost unless we have expressly agreed to
perform this as your agent in our scope of

22. Electricity and Water Supply You must provide
an adequate electricity and water supply to us
at the Premises where this is required for our

23. Development Plans Where you are a
developer, you must supply us with complete
and accurate plans for the development or
subdivisions and ensure we are supplied with
revised and updated plans as soon as they are

24. Traffic Management You are responsible for
submitting and arranging all traffic
management plans required by any authority
and managing the timeframe for such
approvals to align with the commencement of
our Services where we agree traffic
management is a requirement to perform our




25. Underground Services Detection Where our
design, works or Services may be performed in
and around underground services, you must
arrange the following at your own cost and
a. plans of underground services locations to
be ordered; and
b. cable locations and mark-out to be
performed; and
c. mark-outs of all recommended clearances
between detected services; and

d. arrange and meet costs (if applicable) of a
stand-over service where we identify the
Site as high-risk of underground cable or
services strikes in relation to the
identification and location of all
underground services.

26. Site Preparation Works Where our Services
include physical works at your nominated site
or premises, you must complete the following
customer works at your cost in advance of us
commencing the Services unless we have
specifically included these in our scope of
a. Removal of obstructions this includes the
removal of obstructions to access to the
Site; and/or
b. Interior clearance where our Services
require access through the interior of a
dwelling or structure, the area is made
clear for performance of the Services;
c. Boundary Markings where our Services
require boundaries to be followed, all
survey pegs and boundary markings must
be clearly visible and present; and/or
d. Ground levels all ground levels must be at
the required levels indicated in our plans
or to our specific instructions to enable the
Services to be performed; and/or
e. Services trenching all service trenches
must have been closed with appropriate
compacted backfill where necessary for
the performance of the Services; and/or
f. Excavation works all excavation, site
scraping, downpipes, drainage and other
necessary works have been completed
and performed; and/or
g. Roading surfaces all roading surfaces
under your ownership (excluding those
vested in local authorities) meet adequate
strength ratings to support loads including
vibration, weight and depth checks related
to methods we may use in the
performance of the Services.



27. Lawn and Grounds Clearance You must
remove obstructions and debris in advance of
us commencing the Services to avoid extra charges and to enable us to perform the
Services when scheduled, including but not
limited to:
• Toys and sports equipment; and
• Sticks and branches; and
• Dog Faeces; and
• Parked Vehicles; and
• Any other items, equipment or debris that
may obstruct the Services. 

28. Securing Dogs You must ensure dogs are
adequately restrained, crated or located in a
closed environment (e.g. a garage, kennel)
while the Services are being performed.

29. Tree Ownership You warrant that all trees to
be worked on are owned by you or, where
owned by a third party you can supply us with
evidence of consent of the tree owner to the
proposed works or Services. You indemnify us
for any damages or costs incurred from any
mistaken ownership.

30. Neighbour or Adjacent Landowner Liaison You
are responsible for notifying and liaising with
all neighbours and adjacent landowners or
occupiers of intended works. We will not be
responsible for neighbour disputes arising for
lack of notice.

31. Tree Removal Consents You must make your
own enquiries relating to the requirement of
any consents required to enable us to perform
the Services. This includes consent where the
trees are on a boundary, are co-owned, are
subject to any local authority protection or
you are a leaseholder of the land. You must
arrange for all such consents to be obtained at
your sole cost.

32. Electricity Lines Close Approach Consents
Where requested, you must obtain and supply
any close approach consent from an electricity
lines distribution company where power lines
are near the area we will work in or around
unless we have expressly agreed to perform
this as your agent in our scope of works.

33. Disposal of Stump Grinding and Debris Unless
specifically included in our scope of Services, all
stump grindings and debris shall be left at your
Site and you shall be responsible for its disposal
at your cost and expense.



34. Consultation Appointments We operate a
booking system for our design consultation
appointments. We may limit consultations to
specific dates and times and will notify these to

35. Re-scheduling Appointments We require 48
hours’ notice of a re-scheduled appointment.
You may re-schedule directly or via any online
booking or scheduling tool we offer to you.

36. Missed Consultation Appointments Where
you have not re-scheduled or cancelled an
appointment within 48 hours prior, a Missed
Appointment Fee may apply.

37. Maximum Consultation Visits Our design
services may be subject to a maximum number
of consultation visits. This is detailed in our
Quote/Cost Estimate. Where you require
additional visits that exceed this maximum, an
additional consultation fee may apply.

38. Design Approver We require you to nominate
a single individual who has authority to give
instructions or approval to us. You understand
and accept that we will not consider another
person to have provided final approval.

39. Alternative Approver If you wish to nominate
an alternative person to give us instructions or
approval on your behalf, you must provide us
with written confirmation of their contact
name, status and basis on which approval or
instructions can be accepted by us.

40. Maximum Client Reviews Your Quote/Cost
Estimate will specify the number of client
review opportunities of a Concept or Detailed
Design (Working Concept). We reserve the
right to decline any additional client review
input or feedback after this maximum number
has been reached.

41.Client Response Times You agree to respond to
us within 5 (five) Business Days of us seeking a
request for your feedback on a Working
Concept (Client Feedback).

42. Deemed Acceptance In the event we have not
received any response from you at the expiry
of the 5 (five) Business Day period, we will
deem that you have accepted the Working
Concept and have no further feedback or input.
In this event, no further revisions or late edits
will be accepted (except at our sole discretion).

44. All Quote/Cost Estimates Supplied as a Cost
Estimate by Default Unless our Quote/Cost
Estimate specifically states that we offer a fixed
price for the Services, all of our Quote/Cost
Estimates are issued as an estimate of the costs
for the specific scope.

45. Deposit and Time for Payment of Deposit Our
Quote/Cost Estimate will state if a Deposit is
required to confirm the booking of our any of
our Services.

46. Design Services Fees Commencement Fee We
may charge a commencement fee to confirm
acceptance of our design Services prior to
commencing detailed design and sourcing.

47. Repeat Scheduled Services These services are
performed on request and are subject to the
following terms:
a. Minimum Rates Apply these services are
subject to a minimum fee with any
additional time over the agreed minimum
fee chargeable at our hourly rate (which
may be in increments of 30 minutes); and
b. Rates May Vary our call out rates may vary
depending on the service and its
complexity; and
c. Higher Rates May Apply where a service is
requested, out-of-hours, weekend or
public holiday rates may apply and will
incur a higher rate than our standard
hourly rate; and

d. Materials are Charged Separately
materials may be charged in addition to
your call-out fee.

48. Standdown Fees Where we plan to attend your
premises and have supplied reasonable notice
in advance, and you fail to make the necessary
arrangements to enable us to perform our
Services, we reserve the right to apply a fee for
us or our personnel to be stood down.

49. Pricing Validity for Goods and Materials Any
quote for Goods and/or materials is valid for
the period we state in our Quote/Cost Estimate
or any communication relating to your
selections (Materials Pricing Validity Period).
After the expiry of the Materials Pricing Validity
Period, we may need to re-quote for the most
up-to-date price. Any increased costs for
Goods and/or materials after the expiry of the
Materials Pricing Validity Period shall be
passed onto you.



50. Final Invoiced Amounts May Vary from
Estimate Where the cost to perform the
Services are estimated, you shall be invoiced
for the actual hours incurred to perform the
Services up to the date of the applicable
51. Amounts Owing Payable on Due Date All
amounts specified in an invoice will require
payment on the due date specified in the
invoice (Amounts Owing).

52. Invoices May Be Progress Payments We may
invoice on one or more of the following bases
depending on the nature of the Services:

a. Specific Frequency we may invoice for
actual hours and materials incurred on a
set frequency such as weekly, fortnightly
or monthly; or
b. Stages We may invoice you at various
stages of the project, including but not
limited to:

• concept design; and
• working concept; and
• final detailed design; and
• drawings release; and
• construction; and
• planting; and

• materials ordering; and/or
• such other agreed frequency or
interval for specified milestones or
stages of the Services; or
c. Percentages We may invoice you in
specified percentages at specific dates.

53. Retentions No retentions shall apply on
Services performed under these terms.

54.No Deferment of Final Balance You confirm
and acknowledge that you cannot defer the
payment of the final balance to be later than
the Due Date stated in an invoice unless we
agree to this as a Variation.

55. No Set Off or Deduction Payment of Amounts
Owing Amounts Owing which are due and
payable must be made without set-off or
deduction of any kind.

56. Invoices as Payment Claims Where this is a
“construction contract’ as defined in the
Construction Contracts Act 2002 (CCA),
invoices may be issued as a payment claim in
accordance with Part 2 of the CCA.

57. If You Dispute the Amount Owing If you
receive an invoice and you consider you owe us
a lesser amount than the sum stated as the
Amount Owing, you must us within five (5)
Business Days of receiving our invoice.

58. Duty to Pay Undisputed Amounts Owing You
acknowledge and agree that you will not be
entitled to withhold payment in respect of any
undisputed Amount Owing.

59. Overdue Amounts Owing If you do not pay an
Amount Owing by the Due Date and you have
not issued us with any valid payment schedule
or any later date we have agreed in writing, this
becomes an Overdue Amount Owing. After a
period of 5 (five) Business Days, we shall have
the right to apply late payment interest at 5%
(or any higher rate published on our invoices at
the time). This shall be calculated daily and
compound monthly at that rate if we elect to
do this. This applies before and after any
judgment (if applicable).

60.Debt Collection or Recovery Costs If an
Overdue Amount Owing remains unpaid for 14
(fourteen) Business Days or more, we reserve
our rights to engage the services of a debt
collection agency or solicitor to take
proceedings to recover the Overdue Amount Owing.

You will be liable for the costs incurred
by us in the collection of any unpaid amounts
including but not limited to full solicitor-client
legal fees on an indemnity basis, debt
collection fees and internal administration

61. Administration Fees In the event we are
obliged to perform any additional actions to
recover any monies owed by you, we reserve
the right to apply reasonable administrative
fees for phone calls, texts, emails and in-person
visits to follow up and recover any Overdue
Amount Owing in addition to any costs or
expenses stated in any clauses above.

62. Variations to Price or Time We reserve the
right to issue a Variation Order to change the
total price or extend the time to complete the
Services in the following circumstances:

a. Accuracy of plans where any additional
measurements are required to be
obtained by us to verify the accuracy and
suitability of any plans or drawings
supplied to us by you (or any
representative) after you have supplied us
with consented or approved plans; and/or
b. Revisions to plans where a change to the
plans or specifications is made by you or
any representative authorised by you
(including architects, structural engineers,
or other contractor you direct us to take
instructions from); and/or
c. Materials changes where a change to
selection of materials, is required or
requested after you have accepted our
Quote/Cost Estimate whether or not the
Services have commenced; and/or
d. Site extension where an extension to the
Site area is requested that extends the
sqm on which we have provided our
Quote/Cost Estimate; and/or
e. Unsuitable ground encountering
unsuitable ground or overhead
obstructions that prevent works; and/or
f. Dewartering any mains, ducts or other
conduits or channels that may flood or
allow water ingress as a result of the
works; and/or

g. Co-ordination Separate Contractors
where our scope of Services has not
included project management services for
the construction phase of your project,
and we are required to perform co-ordination with your Separate
Contractors; and/or
h. Change to commencement date where a
change to the date for commencement
agreed upon in our Quote/Cost Estimate is
requested; and/or
i. Costs fluctuations where the cost of
materials proposed as part of our design or
other costs or expenses relating to supply
of materials increases beyond our control
from the date of issue or acceptance of our
Quote/Cost Estimate; and/or
j. Materials substitutions where there is a
requirement for us to substitute one or
more materials or fixtures selections
forming part of our design due to supply
chain and/or procurement issues and the
substitute material or selection agreed
upon is a higher cost to the price indicated
or estimated in our Quote/Cost Estimate;
k. Any other impacts where there is a
requirement for us to extend the time or
cost it takes to complete the works due to
the impact of any other changes which are
not listed above but which we deem in our
reasonable opinion are a Variation.

63. All Rights Reserved to Decline a Variation
Where a Variation has been requested by you
directly to extend scope or decrease a
timeframe, we reserve our right to decline to
treat this as a Variation. In some
circumstances, we may elect to treat the
request as a new scope of Services and will
advise you if a new Quote/Cost Estimate is to
be supplied.

64. How We Will Confirm a Variation We shall
supply you with a written Variation Order
stating the changes to the Quote/Cost
Estimate, how the price change has been or will
be calculated and state any additional costs to
accommodate the Variation. This will be
supplemental and in addition to the
Quote/Cost Estimate attached to these terms.



65. Consumer Guarantees Act The provisions of
the Consumer Guarantees Act 1993 (CGA) shall
apply to the Goods and Services, unless you are
a customer in trade or business and the
Services acquired from us under this Contract
are for business purposes in which case the
CGA shall not apply.

66. Delay Fees Unless permitted by law, you are
not entitled to claim any delay fees, liquidated
damages or other costs or expenses related to
any delay in the performance of our Services.

67. Defective Goods or Services The following
shall apply subject to any exclusions or
limitations in these terms or permitted at law:
a. For Goods where you inform us within
three (3) Business Days of delivery or
installation (time being of the essence), we
will, at our sole election, inspect the Goods
to assess if a defect is present and either
replace or repair the defective Goods or
liaise with the manufacturer where a third-party manufacturing or product warranty
applies; and
b. For Workmanship Where following
practical completion of the Services of any
alleged defect, error, omission, shortage in
quantity, damage or failure to comply with
our scope or plans or description, please
inform us within five (5) Business Days
following which we shall inspect or review
the Services and where a defect is present,
we shall remedy any defective
workmanship by a rectification or re-performance of the Services at no cost.

68. Guarantees at Law These guarantees are in
addition to and does not affect any implied
warranties under ss 362l to 362k of the
Building Act 2004 (only where that Act applies
to the applicable customer type) and under the
Consumer Guarantees Act 1993 and is subject
to the exceptions in each act.

69. Manufacturer Warranty Claims After the
completion of the Services and where there is
a manufacturer product warranty still available
for any component part of the Goods included
as part of the Services, you must liaise with the
manufacturer for the duration of any
guarantee period offered by them.

70. Exclusion of Warranties Any warranty or
guarantee owed by us to you under relevant
laws or under this Contract will not apply

a. accepted industry tolerances are present;
b. a fault or defect is not notified to us within
the applicable notice period; and/or
c. a fault or defect is a result of:
 (i) something done by you or someone
else, and not by us or our approved
secondary consultants; and/or
 (ii) you or your representatives not
maintaining any resulting landscape
structure or dwelling (where applicable)
in a sound and reasonable condition in
such a way that it caused the defect;
 (iii) something beyond human control that
occurred after completion of our
Services or works, for example an
extreme weather event or natural
disaster or natural event such as an
earthquake, lahar or tsunami that
3causes the defect; and/or
 (iv) any part of the Goods installed as part
of the design Services being misused,
abused, neglected, or damaged after
installation; and/or
 (v) the Goods not being maintained in
accordance with any care or guarantee
documents supplied by us to you;
 (vi) the Goods being repaired, modified,
reinstalled, or repositioned by anyone
other than us or our approved
 (vii) where you supply any fittings or
materials for your Services, these are
not guaranteed by us and we shall not
be liable for any delays or additional
costs and expenses incurred by you due
to incorrect dimensions, colours,
finishes or any other reason that results
in your customer supplied materials not
being suitable or fit for purpose. To
avoid doubt, customer supplied
materials are not ‘Goods’ under this

71. Accepted Industry Tolerances You agree that
the following are accepted tolerances within
our industry sector and will not constitute a
breach of any quality guarantee we offer to you
under this Contract or at law:

a. alteration of colour, texture, size or
content of individual rocks, stones, barks,
shells or soil types contained within a
batch or volume order; and/or
b. broken or misshaped variations among
any batch or volume order of materials;
c. product variations and changes in
aggregate due to weathering, seasons or
different quarry seams; and/or
d. timber grain variances in timber-based
product varnishes, staining or other
timber-based finishes; and/or
e. shrinkage, swelling, cracking and warping
of timber-based goods or structures due to
moisture, temperature fluctuations and
weathering; and/or
f. cracking of concrete surfaces due to
standard industry accepted tolerances;
g. hairline cracking of paving and grout;
h. transplanting shock to plants, trees and
shrubs caused by extreme temperatures;
i. any other tolerances stated in any industry
standard issued in connection with the

72. Definitions The following terms shall have the
following meanings in this section:
“Pre-Existing Intellectual Property” This
means Intellectual Property rights owned by
either of use prior to our engagement and
contained in any documents, drawings,
designs, or other materials provided to us for
the purposes of providing the Services.

This includes, but is not limited to, concept
drawings supplied as examples, design
methodologies, processes, templates, or other
materials that have not been prepared
exclusively for your use.

“New Intellectual Property” This means all
Intellectual Property rights collated, collected,
prepared or created by us (or persons acting on
behalf of us) in providing the Services. This
includes all site-specific drawings, designs,
documents, planting plans and other materials
or documents in any form (electronic, hard
copy, print, computer automated design). This
excludes Pre-Existing Intellectual Property
which remain under the ownership of their
original owner(s).

73. Ownership of Intellectual Property The
following shall apply in relation to the
intellectual property:

a. All New Intellectual Property is Owned by
Us All New Intellectual Property held in
any medium, whether electronic or
otherwise, and forming part of the
Services, shall be owned by us. We shall
retain the right to commercialise, exploit
or use in any manner the New Intellectual
Property that we own.
b. Pre-Existing Intellectual Property This
shall remain the property of its owner.

74. Warranty Relating to Third Party Infringement
You confirm that any Pre-Existing Intellectual
Property you supply to us in the form of
drawings, planting plans, designs or other
documentation will not infringe any
Intellectual Property or other rights of any third

75. Licence to Use New Intellectual Property We
grant you a non-exclusive, non- transferable
licence to use the New Intellectual Property for
the specified site to which the New Intellectual
Property relates. This licence remains valid
subject to you complying with all of your
obligations under these Terms, including those
in respect of payment of fees and other

76. No Commercial Use, Sharing or Re-Use of Our
Pre-Existing Intellectual Property or New
Intellectual Property You agree and accept
that the following restrictions apply in respect
of our Pre-Existing Intellectual Property or New
Intellectual Property:
a. you may not share it with other landscape
designers; and/or
b. you may not replicate it for other sites;

c. You may not use it for your own
commercial purposes; and/or
d. You may not alter it for alternative

77. Copies of Design and Drawings Upon
termination or completion of the Services, and
subject to payment of any fees, we will provide
you with one copy of any planting plans, design
plan or drawing prepared as part of the
Services, in hard copy or non-editable (e.g.,
PDF) electronic format. We will not be required
to provide the plans or drawings in an editable
electronic format.

78. Where Services are Terminated Prior to
Completion If the Services are terminated prior
to their completion, you shall only be entitled
to use the New Intellectual Property that has
been created as at the time of termination. We
shall be under no obligation to complete any
design Services where this Contract is
terminated prior to completion of a detailed or
final design.

79. Using New Intellectual Property with another
Landscape Architect Designer Where you wish
to use the New Intellectual Property for
additions or alterations to the drawings, design
or materials that shall be provided by someone
other than us, you must obtain our prior
written consent. We reserve all rights to use
our sole discretion when deciding on consent
and we may request a royalty for such re-use,
at a rate to be agreed.

80. Re-Use of the New Intellectual Property Any
re-use of the New Intellectual Property (for
example to reproduce the project on a
different site) requires our prior written
consent. We reserve all rights to use our sole
discretion when deciding on consent and we
may request a royalty for such re-use, at a rate
to be agreed.


82. Risk in Goods Passes to You on Completion All
risk of damage or loss to any Goods procured
by us on your behalf as part of the Services shall
pass to you on delivery of the Goods or
completion of the Services (including where
Goods have been installed at your Site as part
of the Services). The responsibility to insure
those Goods shall pass to you immediately on
delivery or installation, whichever is earlier.



82. Termination of Services for Default Without
prejudice to our other remedies at law, we
reserve our rights to terminate this Contract
(which includes any part the Services that
remain unfulfilled) and shall not be liable to
you for any delay, loss or damage suffered by
you due to us exercising our rights under this
clause, if one or more of the circumstances
listed below occurs:

a. you fail to pay any Deposit or
Commencement Fee to confirm
acceptance of our Services; and/or
b. you fail to pay any sums that have become
an Overdue Amount Owing; and/or
c. you become insolvent or bankrupt,
convene a meeting with your creditors or
make an assignment for the benefit of
your creditors or a receiver, manager, or
liquidator (provisional or otherwise) or
similar person is appointed in respect of
you or your business or its assets; and/or
d. we or our approved contractors are
denied access to or are unable to access
the Site to carry out the Services for
whatever reason. To avoid any doubt,
where we or our approved contractors
assess that the means of access to the
premises is unsafe and would breach the
relevant safety requirements under
applicable health and safety legislation,
this is a valid reason for termination if it
cannot or will not be remedied by you.

83. Termination for Convenience If you elect to
terminate this Contract prior to
commencement of the Services where there is
no default by us, you must inform us in writing
with no less than ten (10) Business Days’
notice prior to the scheduled date for
commencement of the Services and the
clauses below in relation to sums for Amounts
Owing shall apply.

84. Amounts Owing for Services up to
Termination Date All Amounts Owing for
Goods or Services (as applicable) shall be
deducted from a deposit paid or where there is
a balance remaining, become immediately due
and payable if either party exercises theirrights
to terminate the Services, including (but not
limited to):

a. Services which have commenced but have
not been completed up to the date of
termination; and/or
b. Services already performed and
completed up to the date of termination;
c. Custom Materials already ordered to your
specifications as at the date of termination
which cannot be restocked. Following
receipt of the outstanding balances owing
for Custom Materials, these shall be
delivered to you (with any applicable
delivery or freight fee added to your

85. Exclusion of Our Liability To the fullest extent
permitted by law, and subject to our
obligations under this Contract or under any
applicable law that imposes guarantees on us,
we exclude all liability to you for:

a. any direct or indirect claims, expenses,
losses, damages and costs (including any
incidental, special and/or consequential
damages or loss of profits, loss of
anticipated savings or loss of expenses
suffered or incurred by you resulting
(either directly or indirectly) in connection
with the Goods and Services; and
b. the failure to perform by any Separate
Contractors engaged by you directly to
perform construction or other Services in
respect of your project.

86. Damage to Underground Services You warrant
that without limiting our other rights and
remedies, you shall indemnify and hold us
harmless against and from all costs and
expenses (including reasonable legal costs) in
relation to any claim or proceeding brought
against us in respect of any damage caused to
underground services during the performance
of our Services.

87. When Limitations of Liability Cannot Apply
These clauses do not limit our liability to the
extent that it cannot be limited at law; and/or
arises out of or in connection with any wilful
default, fraud or criminal conduct by us.


88. Details of the Dispute must be Supplied If you
or we consider that a dispute has arisen in relation to any matter governed by this Contract, that party must give the other party
written notice outlining the basis of the dispute
(Dispute Notice).

89. Dispute must be Discussed The parties must
then meet to resolve. If the dispute
is not resolved by discussion, meeting and/or
other informal means within ten (10) Business
Days of the date of the Dispute Notice then the
Parties may seek mediation, adjudication or
other dispute resolution options.

90. Obligations Continue If there is a Dispute, each
Party will continue to perform its obligations
under this Contract as far as practical given the
nature of the dispute.

91. Taking court action Each Party agrees not to
start any court action in relation to a dispute
until it has complied with the process
described in this clause, unless that Party
requires urgent relief from a court.

92. You Must Still Pay Amounts Owing
Not withstanding the presence of a dispute,
you must still comply with your obligations to
pay us in accordance with the terms of this
Contract unless the dispute specifically relates
to a disputed amount on an invoice. In that
case, you must pay the undisputed portion of
that invoice.



93. Deemed Notice Any written notice given under
this Contract shall be deemed to have been
given and received as follows:

a. by handing the notice to the other party,
in person; or
b. by leaving it at the registered address of
the other party as stated in
this Contract; or
c. by sending it by registered post to the
address of the other party as stated in
this Contract; or
d. if sent by email to the other party’s last
known email address

94. Governing Law This Contract shall be
governed by the laws of New Zealand and
the parties irrevocably submit to the
exclusive jurisdiction of the courts of New

95. Severability If and to the extent any
provision or part of a provision is illegal or
unenforceable, such provision or part of a
provision will be severed from this Contract
and will not affect the continued operation
of the remaining provisions of this Contract.

96. Entire Agreement This Contract sets out the
entire agreement between the parties.

97. Construction Contracts Act Where the context
requires, this Contract is a construction
contract as defined under the Construction
Contracts Act 2002.

98. Signing Not Required It is not necessary for this
Contract or any Quote/Estimate document to
be physically or electronically signed.

99. Electronic Acceptance The parties agree that
any legal requirement may be met by using
electronic means in accordance with the
Contract and Commercial Law Act 2017. In this
clause the term “legal requirement” has the
meaning given to it by section 219(2) of the
Contract and Commercial Law Act 2017.

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