1.1 "Rapid Lawn" means P W Harvey Ltd trading as Rapid Lawn, its successors and assigns, or any person acting on behalf of and with the authority of P W Harvey Ltd.
1.2 "Client" means the person/s ordering the Works as specified in any invoice document or order, and if there is more than one Client is a reference to each Client jointly and severally.
1.3 "Works" means all Works or Materials provided by Rapid Lawn to the Client at the Client's request from time to time (where the context so permits the terms "Works" or "Materials" shall be interchangeable for the other) and include any advice or recommendations.
1.4 "Prime Cost Item" shall mean an item that either has not been selected or whose Price is not known, at the time this contract is entered into and for the cost of supply and delivery of which Rapid Lawn must make a reasonable allowance in the contract.
1.5 "Provisional Sum" shall mean an estimate of the cost of carrying out particular Works under this contract for which Rapid Lawn, after making all reasonable inquiries, cannot give a definite Price at the time this contract is entered into.
1.6 "Price" means the price payable for the Works as agreed between Rapid Lawn and the Client in accordance with clause 5 below.
2.1 The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for or accepts provision of the Works.
2.2 These terms and conditions may only be amended with Rapid Lawn's consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and Rapid Lawn.
3. Change in Control
3.1 The Client shall give Rapid Lawn not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client's details (including but not limited to, changes in the Client's name, address, contact phone or fax number/s or business practice). The Client shall be liable for any loss incurred by Rapid Lawn as a result of the Client's failure to comply with this clause.
4. Authorised Representatives
4.1 Unless otherwise limited as per clause 4.2, the Client agrees that should the Client introduce any third party to Rapid Lawn as the Client's duly authorised representative, that once introduced that person shall have the full authority of the Client to order any Works (and/or to request and variation thereto) on the Client's behalf and such authority shall continue until all requested Works have been completed or the Client otherwise notifies Rapid Lawn in writing that said person is no longer the Client's duly authorised representative.
4.2 In the event that the Client's duly authorised representative as per clause 4.1 is to have only limited authority to act on the Client's behalf then the Client must specifically and clearly advise Rapid Lawn in writing of the parameters of the limited authority granted to their representative.
4.3 The Client specifically acknowledges and accepts that they will be solely liable to Rapid Lawn for all additional costs incurred by Rapid Lawn (including Rapid Lawn's profit margin) in providing any Works or variation/s thereto, requested by the Client's duly authorised representative (subject always to the limitations imposed under clause 4.2 (if any).
5. Price and Payment
5.1 At Rapid Lawn's sole discretion, the price shall be either:
(a) as indicated on invoices provided by Rapid Lawn to the Client in respect of Works provided; or
(b) Rapid Lawn's quoted Price (subject to clause 6) which shall be binding upon Rapid Lawn's quotation in writing within thirty (30) days or sign Rapid Lawn's contract within the prescribed timeframes.
5.2 Time for payment for the Works being of the essence, the Price will be payable by the Client on the date/s determined by Rapid Lawn, which may be:
(a) on completion of the Works; or
(b) by way of progress payments in accordance with Rapid Lawn's specified progress payment schedule. Such progress payment claims may include the reasonable value of any Materials delivered to the worksite but not yet installed. Where no payment stages have been specified, Rapid Lawn may submit detailed payment claims at intervals not less than one (1) month for Works performed up to the end of each month;
(c) For certain approved Clients, due twenty (20) days following the end of the month in which a statement is posted to the Client's address or address for notices;
(d) the date specified on any invoice or other form as being the date for payment; or
(e) Failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by Rapid Lawn.
5.3 Unless otherwise stated, the Price does not include GST. In addition to the Price, the Client must pay to Rapid Lawn an amount equal to any GST Rapid Lawn must pay for any provision of Works by Rapid Lawn under this or any other agreement. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition, the Client must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
5.4 Unless otherwise agreed to in writing between the parties, no allowance has been made in the Price for the deduction of retentions. In the event that retentions are made, Rapid Lawn reserves the right to treat all retentions as placing the Client's account into default.
6.1 Rapid Lawn reserves the right to change the Price:
(a) If a variation to the Materials which are to be provided is requested; or
(b) If a variation to the Works originally scheduled (included any applicable plans or specifications) is requested; or
(c) Where additional Works are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, poor weather conditions, limitations to accessing the site, hard rock barriers below the surface or iron reinforcing rods in concrete, obscured site defects which require remedial work, health hazards and safety considerations (such as the discovery of asbestos), prerequisite work by any third party not being completed or hidden pipes and wiring in walls, etc) which are only discovered on commencement of the Works; or
(d) In the event of increase to Rapid Lawn in the cost of labour or Materials which are beyond Rapid Lawn's control.
6.2 In the event that the Client requests a variation all such requests shall be made in writing. If Rapid Lawn believes the variation will not require a variation to any permit and will not cause any delay and will not add more than two percent (2%) to the Price then Rapid Lawn may carry out the variation and the Client agrees to pay any variation to the Price, otherwise Rapid Lawn will give the Client a written variation document detailing the Works, the amended Price, the estimated time to undertake the variation and the likely delay, if any, and require written acceptance by the Client of the variation before commencing Work on the variation.
6.3 In the event that Rapid Lawn requests a variation, Rapid Lawn will, in writing:
(a) state the reason for the variation; and
(b) provide a full description of the variation; and
(c) state any effect the variation will have on the contract, including but not limited to the Price, completion date and whether further permits or authorisations are required.
6.4 Other than for the events outlined in clause 6.5, Rapid Lawn shall obtain written acceptance by the Client of any variation submitted by Rapid Lawn before commencing Work on the variation.
6.5 Where the Works involve additions or alterations to an existing building or structure then:
(a) Rapid Lawn shall not be liable for any loss or damage suffered by the Client in relation to the Works where such loss or damage results from the state or condition of the Client's existing building or structure and the effect of such state or condition on the Works or the effect of the Works on the existing building or structure could not reasonably have been foreseen by Rapid Lawn during the course of the Works; and
(b) where as a result of opening up any part of the existing building or structure to carry out the Works, any additional or altered work is required because of non-standard construction or any substandard timber or other materials or because of any material which is required to be replaced or removed to carry out the Works, then the cost of any additional or altered work shall be borne by the Client and treated as a variation and the Contract Price adjusted accordingly.
7 Provision of the Works
7.1 Subject to clause 7.2, it is Rapid Lawn's responsibility to ensure that the Works start as soon as it is reasonably possible.
7.2 The Works commencement date will be put back and the building period extended by whatever time is reasonable in the event that Rapid Lawn claims an extension of time (by giving the Client written notice) where completion is delayed by an event beyond Rapid Lawn's control, including but not limited to any failure by the Client to:
(a) make a selection; or
(b) have the site ready for installation; or
(c) notify Rapid Lawn that the site is ready.
7.3 Any time specified by Rapid Lawn for provision of the Works is an estimate only and Rapid Lawn will not be liable for any loss or damage incurred by the Client as a result of a provision being late. However, both parties agree that they shall make every endeavor to enable the Works to be provided at the time and place as was arranged between both parties. In the event that Rapid Lawn is unable to provide the Works as agreed solely due to any action or inaction of the Client the Rapid Lawn shall be entitled to charge a reasonable fee for re-providing the Works at a later time and date.
7.4 The Works shall be deemed to be completed when:
(a) The Works carried out under this contract have been completed in accordance with the plans and specifications set out in this contract; and
(b) the Client either; (i) receives a certificate of acceptance where the Works were urgent and completed without a building consent; or (ii) in any other case upon the issuance of a Notice of Practical Completion.
7.5 The Client shall inspect the Works upon completion and shall within three (3) days notify Rapid Lawn of any alleged defect, error or omission, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford Rapid Lawn an opportunity to inspect the Works with a reasonable time following such notification if the Client believes the Works are defective in any way. If the Client shall fail to comply with these provisions the Works shall be presumed to be free from any defect or damage. For defective Works, which Rapid Lawn has agreed in writing that the Client is entitled to reject, Rapid Lawn's liability is limited to either (at Rapid lawn's discretion replacing the Works or repairing the Works.
7.6 Materials will not be accepted for return other than in accordance with clause 7.5 above.
8.1 Risk of damage to or loss of the Materials passes to the Client on delivery and the Client must insure the Materials on or before delivery.
8.2 If any of the Materials are damaged or destroyed following delivery but prior to ownership passing to the Client, Rapid Lawn is entitled to receive all insurance proceeds payable for the Materials. The production of these terms and conditions by Rapid Lawn is sufficient evidence of Rapid Lawn's rights to receive the insurance proceeds without the need for any person dealing with Rapid Lawn to make further enquiries.
9 Site Access and Condition
9.1 The Client shall ensure that Rapid Lawn has clear and free access to the worksite at all times to enable them to undertake the Works. Rapid Lawn shall not be liable for any loss or damage to the site (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of Rapid Lawn.
9.2 It is the intention of Rapid Lawn and agreed by the Client that it is the Client's responsibility to provide Rapid Lawn, while at the site, with adequate access to available water, electricity, toilet and washing facilities.
10 Underground Locations
10.1 Prior to Rapid Lawn commencing the Works, the Client must advise Rapid Lawn of the precise location of all underground services on the site and clearly mark the same. The underground mains and services the Client must identify include, but are not limited to, electrical services, gas services, sewer services, plumbing services, sewer connections, sewer sludge mains, water mains, irrigation pipes, telephone cables, fibre optic cables, oil pumping mains and any other services that may be on site.
10.2 Whilst Rapid lawn will take care to avoid damage to any underground services the Client agrees to indemnify Rapid Lawn in respect of all and any liability claims, loss, damage, costs and fines as a result of damage to services not precisely located and notified as per clause 10.1
11 Compliance with Laws
11.1 The Client and Rapid Lawn shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Works, including any occupational health and safety laws relating to building/construction sites and any other relevant safety standards or legislation, and the terms and conditions of all consents and approvals (in so far as such consents and approvals related to the carrying out of the Works).
11.2 The Client shall obtain (at the expense of the Client) all licenses, consents and approvals, including the Code of Compliance Certificate(s), that may be required for the Works. If applicable, Rapid Lawn shall provide the Client with all necessary information relating to the Works so that the Client may apply for such licenses, consents and approvals.
12 Work Undertaken by Client
12.1 In the event that any part of the Works is undertaken by, or is reliant by work undertaken by the Client then any work undertaken by the Client shall be at the written permission of Rapid Lawn and executed in accordance with a timetable provided to the Client by Rapid Lawn and shall be undertaken strictly in accordance with the plans and specifications, the Building Act 2004 (in particular sections 14(b) and (c) and any relevant regulations made under that Act and any direction given by Rapid Lawn.
12.2 In the event of the Client failing to undertake any such work strictly in accordance with Clause 12.1, Rapid Lawn shall be entitled to:
(a) rectify any such failure to make good a defect; and
(b) charge the Client any additional labour or Materials costs with any such costs being paid to Rapid Lawn as invoiced prior to possession being given and taken.
12.3 Rapid Lawn shall not be liable for any loss or damage howsoever caused as a result of any work performed by the Client.
12.4 In the event of any loss arising out of any materials supplied by the Client, the Client shall be liable for all such loss or damage.
12.5 During any period that the Client is working on the Works, the Client shall take all practical steps to prevent harm to Rapid Lawn and shall comply with the provisions of Health and Safety in Employment Act 1992.
13.1 Rapid Lawn and the Client agree that the Client's obligation to Rapid Lawn for the provision the Works shall not cease (and ownership of the Materials shall not pass) until:
(a) The Client has paid Rapid Lawn all amounts owing to Rapid Lawn; and
(b) the Client has met all other obligations due by the Client to Rapid Lawn in respect of all contracts between Rapid Lawn and the Client
13.2 Receipt by Rapid Lawn of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then Rapid Lawn's ownership or rights in respect of this agreement (and the Materials) shall continue.
13.3 It is further agreed that:
(a) where practicable the Materials shall be kept separate and identifiable until Rapid Lawn shall have received payment and all other obligations of the Client are met; and
(b) until such time as ownership of the Materials shall pass from Rapid Lawn to the Client, Rapid Lawn may give notice in writing to the Client to return the Materials or any of them to Rapid Lawn. Upon such notice the rights of the Client to obtain ownership or any other interest in the Materials shall cease; and
(c) Rapid Lawn shall have the right of stopping the Materials in transit whether or not the delivery has been made; and
(d) if the Client fails to return the Materials to Rapid Lawn, then Rapid Lawn or Rapid Lawn's agency may enter upon and into land and premises owned, occupied or used by the Client, or any premises as the invitee of the Client where the Materials are situated and take possession of the Materials.
14 Personal Property Securities Act 1999 ("PPSA")
14.1 Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that:
(a) these terms and conditions constitute a security agreement for the purposes of the PPSA; and
(b) a security interest is taken in all materials and collateral (accounts) - being a monetary obligation of the client to Rapid Lawn for Works - previously provided and that will be provided in the future by Rapid Lawn to the Client.
14.2 The Client undertakes to:
(a) sign and further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which Rapid Lawn may reasonably require a financing statement or financing change statement on the Personal Property Securities Register;
(b) indemnify, and upon demand reimburse, Rapid Lawn for all expenses incurred in registering a financing change statement on the Personal Property Securities Register or releasing any registration made thereby;
(c) not register a financing or a change demand without the prior written consent of Rapid Lawn.
14.3 Rapid Lawn and the Client agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
14.4 The Client waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131, and 132 of the PPSA.
14.5 Unless otherwise agreed to in writing by Rapid Lawn, the Client waives its rights to receive a verification statement in accordance with section 148 of the PPSA.
14.6 The Client shall unconditionally ratify any actions taken by Rapid Lawn under clauses 14.6 to 14.5.
15 Security and Change
15.1 In consideration of Rapid Lawn agreeing to provide the Works, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
15.2 The Client indemnifies Rapid Lawn from and against all Rapid Lawn's costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Rapid Lawn's rights under this clause.
15.3 The Client irrevocably appoints Rapid Lawn and each director of Rapid Lawn as the Client's true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 15 including, but not limited to, signing any document on the Client's behalf.
16 Client's Disclaimer
16.1 The Client hereby disclaims any right to rescind, or cancel any contract with Rapid Lawn or to sue for damages or to claim restitution arising out of any inadvertent misrepresentation made to the Client by Rapid Lawn and the Client acknowledges that the Works are bought relying solely upon the Client's skill and judgment.
17.1 Subject to the conditions of warranty set out in clause 17.2, Rapid Lawn warrants that if any defect in any workmanship of Rapid Lawn becomes apparent and is reported to Rapid Lawn within six (6) months of the date of completion (time being of the essence) then Rapid Lawn will either (at Rapid Lawn's sole discretion) replace or remedy the workmanship.
17.2 The conditions applicable to the warranty given by clause 17.1 are:
(a) the warranty shall not cover any deflect or damage which may be caused or partly caused by or arise through: (i) failure on the part of the Client to properly maintain the Works; or (ii) failure on the part of the Client to follow any instructions or guidelines provided by Rapid Lawn; or (iii) any use of the Works other than for any application specified on a quote or order form; or (iv) the continued use of the Works after any defect becomes apparent or would have become apparent to a reasonable prudent operator or user; or (v) fair weather and tear, any accident or act of God.
(b) the warranty shall cease and Rapid Lawn shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without Rapid Lawn's consent.
(c) in respect of all claims Rapid Lawn shall not be liable to compensate the Client for any delay in either replacing or remedying the workmanship or in properly assessing the Client's claim.
17.3 For Materials not manufactured by Rapid Lawn, the warranty shall be the current warranty provided by the manufacturer of the Materials. Rapid Lawn shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Materials.
18 Intellectual Property
18.1 The Client agrees that Rapid Lawn may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings, plans, or digital media of the Works which Rapid Lawn has provided to (or Materials created for) the Client.
19 Default and Consequences of Default
19.1 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 Rapid Lawn's sole discretion such interest shall compound monthly at such a rate) after as well as before any judgement.
19.2 If the Client owes Rapid Lawn any money the Client shall indemnify Rapid Lawn from and against all costs and disbursements incurred by Rapid Lawn in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Rapid Lawn's collection agency costs, and bank dishonour fees).
19.3 Without prejudice to any other remedies Rapid Lawn may have, if at any time the client is in breach of any obligation (including those relating to payment) under these terms and conditions Rapid Lawn may suspend or terminate the provision of Works to the Client. Rapid Lawn will not be liable to the Client for any loss or damage the Client suffers because Rapid Lawn has exercised its rights under this clause.
19.4 Without prejudice to Rapid Lawn's other remedies at law Rapid Lawn shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Rapid Lawn shall, whether or not due for payment, become immediately payable if:
(a) any money payable to Rapid Lawn becomes overdue, or in Rapid Lawn's opinion the Client will be unable to make a payment when it falls due;
(b) the Client becomes insolvent or bankrupt, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
20.1 Rapid Lawn may cancel any contract to which these terms and conditions apply or cancel provision of Works at any time before the Works have commenced by giving written notice to the Client. On giving such notice Rapid Lawn shall repay to the Client any sums paid in respect of the Price, less any amounts owing by the Client to Rapid Lawn for Materials already ordered/supplied. Rapid Lawn shall not be liable for any loss or damage whatsoever arising from such cancellation.
20.2 In the event that the Client cancels the provision of Works the Client shall be liable for any and all loss incurred (whether direct or indirect) by Rapid Lawn as a direct result of the cancellation (including, but not limited to, any loss of profits).
20.3 Cancellation of orders for Materials made/ordered to the Client's specifications or for non-stocklist items, will definitely not be accepted once an order has been placed.
21 Privacy Act 1993
21.1 The Client authorises Rapid Lawn or Rapid Lawn's agent to:
(a) access, collect, retain and use any information about the Client: (i) (including any overdue fines balance information held by the Ministry of Justice) for the purpose of assessing the Client's creditworthiness; or (ii) for the purpose of marketing products and services to the Client
(b) disclose information about the Client, whether collected by Rapid Lawn from the Client directly to obtained by Rapid Lawn 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 the Client.
21.2 Where the Client is an individual the authorities under clause 21.1 are authorities or consents for the purposes of the Privacy Act 1993.
21.3 The Client shall have the right to request Rapid Lawn for a copy of the information about the Client retained by Rapid Lawn and the right to request Rapid Lawn to correct any incorrect information about the Client held by Rapid Lawn.
22 Dispute Resolution
22.1 All disputes and differences between the Client and Rapid Lawn touching and concerning this agreement shall be referred to arbitration under a single arbitrator agreed upon by both parties, or failing agreement, by two arbitrators (one to be appointed by each party) and their umpire (appointed by them prior to arbitration), such arbitration to be carried out in accordance with provisions of the Arbitration Act 1996.
23 Construction Contracts Act 2002
23.1 In the event that the Client is a residential occupier as defined by the Construction Contracts Act 2002 the Client hereby expressly acknowledges that:
(a) Rapid Lawn has the right to suspend work within five (5) working days of written notice of its intent to do so if a payment claim is served on the Client; and (i) the payment is not paid in full by the due date for payment and no payment schedule has been given by the Client; or (ii) a scheduled amount stated in a payment schedule issued by the Client in relation to the payment claim is not paid in full by the due date for its payment; or (iii) the Client has not complied with an adjuctator's notice that the Client must pay an amount to Rapid Lawn by any particular date; and (iv) Rapid Lawn has given written notice to the Client of its intention to suspend the carrying out of construction work under the construction contract.
(b) if Rapid Lawn suspends work it: (i) is not in breach of its contract; and (ii) is not liable for any loss or damage whatsoever suffered, or alleged to be suffered, by the Client or by any person claiming through the Client; and (iii) is entitled to an extension of time to complete the contract; and (iv) keep its rights under the contract including the right to terminate the contract; and may at any time lift the suspension, even if the amount has not been paid or any adjudicator's determination has not been complied with.
(c) If Rapid Lawn exercises the right to suspend work, the exercise of that right does not: (i) affect any rights that would otherwise have been available to Rapid Lawn under the Contractual Remedies Act 1979; or (ii) enable the Client to exercise any rights that may otherwise have been available to the Client under that Act as a direct consequence of Rapid Lawn suspending work under this provision.
24.1 The failure by Rapid Lawn to enforce any provision of these terms and conditions shall subsequently enforce that provision. 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.
24.2 These terms and conditions and any contract to which they shall apply shall be governed by the laws of New Zealand and are subject to the jurisdiction of the Tauranga Court of New Zealand.
24.3 Rapid Lawn shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by Rapid Lawn of these terms and conditions (alternatively Rapid Lawn's liability shall be limited to damages which under no circumstances shall exceed the price).
24.4 Rapid Lawn may license or sub-contract all or any part of its rights and obligations without the Client's consent. The Client agrees and understands that they have no authority to give any instruction to any of Rapid Lawn's sub-contractors without the authority of Rapid Lawn.
24.5 The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by Rapid Lawn nor to withhold payment of any invoice because part of that invoice is in dispute.
24.6 The Client agrees that Rapid Lawn may amend these terms and conditions at any time. If effect from the date on which Rapid Lawn notifies the Client of such change. The Client will be taken to have accepted such changes if the Client makes a further request for Rapid Lawn to provide any Works to the Client.
24.7 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
24.8 The Client warrant that it has the power to enter into this arrangement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on.