Terms and Conditions
TERMS AND CONDITIONS OF TRADE
1.1 ?Treesafe? shall mean Treesafe Limited its successors and assigns or any person acting on behalf of and with the authority of Treesafe Limited.
1.2 ?Client? shall mean the Client (or any person acting on behalf of and with the authority of the Client) as described on any quotation, work authorisation or other form as provided by Treesafe to the Client.
1.3 ?Guarantor? shall mean that person (or persons) who agrees to be liable for the debts of the Client on a principal debtor basis.
1.4 ?Goods? shall mean all Goods supplied by Treesafe to the Client (and where the context so permits shall include any supply of Services as hereinafter defined) and includes Goods described on any invoices, quotation, work authorisation or any other forms as provided by Treesafe to the Client.
1.5 ‘Services? shall mean all services supplied by Treesafe to the Client and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).
1.6 ?Price? shall mean the price payable for the Goods as agreed between Treesafe and the Client in accordance with clause 4 of this contract.
2.1 Any instructions received by Treesafe from the Client for the supply of Goods and/or the Client’s acceptance of Goods supplied by Treesafe shall constitute acceptance of the terms and conditions contained herein.
2.2 Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all payments of the Price.
2.3 Upon acceptance of these terms and conditions by the Client the terms and conditions are binding and can only be amended with the written consent of Treesafe.
2.4 The Client shall give Treesafe not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client or any change in the Client’s name and/or any other change in the Client’s details (including but not limited to, changes in the Client’s address, facsimile number, or business practice). The Client shall be liable for any loss incurred by Treesafe as a result of the Client’s failure to comply with this clause.
2.5 Goods are supplied by Treesafe only on the terms and conditions of trade herein to the exclusion of anything to the contrary in the terms of the Client’s order notwithstanding that any such order is placed on terms that purport to override these terms and conditions of trade.
2.6 Treesafe shall only be responsible for their performance to the party that contracts them to undertake the Services and shall not be responsible to any third party irrespective of their relationship to the Client.
2.7 The Client accepts when requesting or organising Treesafe to provide Services that the Client shall acknowledge their interest in the Goods as the lawful owner of the Goods or in the case of a third party that the Client has written authority to act as an agent on behalf of the third party. If the third party is intended to be responsible for the payment (or any part thereof) of the Price then in the event that the third party does not pay for the Services when due, the Client acknowledges that they shall be liable for the payment of the Price as if they had contracted the Services on their own behalf.
3.1 Unless expressly stated by Treesafe, the quoted Price shall not include: (a) stump removal and chasing of the roots; and (b) in the event of stumps that are located in raised beds, then the stump machine will only grind to a depth of 14 inches or 35cm, further grinding of the stump shall be considered a variation.
3.2 In the event the Clients require any of the above, the Price will be adjusted accordingly to include the Services in accordance with clause 4.2.
4. Price And Payment
4.1 At Treesafe’s sole discretion the Price shall be either: (a) as indicated on invoices provided by Treesafe to the Client in respect of Goods supplied; or (b) Treesafe’s quoted Price (subject to clause 4.2) which shall be binding upon Treesafe provided that the Client shall accept Treesafe’s quotation in writing within fourteen (14) days.
4.2 Treesafe reserves the right to change the Price in the event of a variation to Treesafe’s quotation. In the event of any variation from the plan of scheduled works or specifications (including, but not limited to, any variation due to unforeseen circumstances (including, but not limited to, the size of the lopping job or the heights of the trees), or as a result of increases to Treesafe Co in the cost of materials and labour) then Treesafe reserves the right to halt all Services until such time as Treesafe and the Client agreed to changes to the plans and/or specifications as outlined in the quotation to incorporate such variances. The variances once approved shall be detailed in writing and charged for on the basis of Treesafe’s quotation and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of completion.
4.3 At Treesafe’s sole discretion a non-refundable deposit may be required.
4.4 At Treesafe’s sole discretion payment for approved Clients shall be 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.
4.5 Payment will be made by cash, or by cheque, or by bank cheque, or by direct credit, or by any other method as agreed to between the Client and Treesafe.
4.6 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.
5. Delivery Of Goods
5.1 At Treesafe’s sole discretion delivery of the Goods shall take place when the Client takes possession of the Goods at the Client’s nominated address (in the event that the Goods are delivered by Treesafe or Treesafe’s nominated carrier).
5.2 Delivery of the Goods to a third party nominated by the Client is deemed to be delivery to the Client for the purposes of this agreement.
5.3 The failure of Treesafe to deliver shall not entitle either party to treat this contract as repudiated.
5.4 Treesafe shall not be liable for any loss or damage whatsoever due to failure by Treesafe to deliver the Goods (or any of them) promptly or at all, where due to circumstances beyond the control of Treesafe.
6.1 If Treesafe retains ownership of the Goods nonetheless, all risk for the Goods passes to the Client on delivery.
6.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, Treesafe is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Treesafe is sufficient evidence of Treesafe’s rights to receive the insurance proceeds without the need for any person dealing with Treesafe to make further enquiries.
6.3 The Client acknowledges and agrees that in the event Treesafe require access, in order to undertake the Services, to an adjoining or adjacent property or land to the nominated job site, that is not owned by the Client, then it is the Client’s responsibility to gain permission from the land owner to use the above mentioned property throughout the process or delivering the Services. In the event the land owner denies access or use of the land or property, the Client shall be liable for all costs incurred by Treesafe in gaining permission to access and/or use the property through any legal process that may be deemed necessary.
6.4 Treesafe reserves the right to refuse to continue to complete the Services in the event that Treesafe believes the site/trees to be unsafe to either Treesafe’s employees and/or the Client’s Property. In this event, the Client accepts Treesafe’s right to make safe the site (including but not limited to the hire of a Travel Tower) before Treesafe will continue the Services. The Client agrees to indemnify Treesafe against all additional costs incurred in such an event, all additional costs shall be detailed separately at the time of invoicing in accordance with clause 4.2. Treesafe shall not be liable for any delays caused, loss, damages, or costs however resulting from an unsafe site.
7.1 The Client shall ensure that Treesafe has clear and free access to the work site at all times to enable them to undertake the works. Treesafe shall not be liable for any loss or damage to the site or surrounding area (including, without limitation, damage to buildings, fencing, pathways and vegetation) unless due to the negligence of Treesafe.
8. Underground Locations
8.1 Prior to Treesafe commencing the Services the Client must advise Treesafe 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, pumping 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.
8.2 Whilst Treesafe will take all care to avoid damage to any underground services the Clients agrees to indemnify Treesafe 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 8.1.
9.1 Treesafe and Client agree that ownership of the Goods shall not pass until: (a) the Client has paid Treesafe all amounts owing for the particular Goods; and (b) the Client has met all other obligations due by the Client to Treesafe in respect of all contracts between Treesafe and the Client.
9.2 Receipt by Treesafe 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 Treesafe’s ownership or rights in respect of the Goods shall continue.
9.3 It is further agreed that: (a) where practicable the Goods shall be kept separate and identifiable until Treesafe shall have received payment and all other obligations of the Client are met; and (b) until such time as ownership of the Goods shall pass from Treesafe to the Client Treesafe may give notice in writing to the Client to return the Goods or any of them to Treesafe. Upon such notice being given the rights of the Client to obtain ownership or any other interest in the Goods shall cease; and (c) the Client is only a bailee of the Goods and until such time as Treesafe has received payment in full for the Goods then the Client shall hold any proceeds from the sale or disposal of the Goods, up to and including the amount the Client owes to Treesafe for the Goods, on trust for Treesafe; and (d) until such time that ownership in the Goods passes to the Client, if the Goods are converted into other products, the parties agree that Treesafe will be the owner of the end products; and (e) if the Client fails to return the Goods to Treesafe then Treesafe or Treesafe’s agent may (as the invitee of the Client) enter upon and into land and premises owned, occupied or used by the Client, or any premises where the Goods are situated and take possession of the Goods, and Treesafe will not be liable for any reasonable loss or damage suffered as a result of any action by Treesafe under this clause.
10. Personal Property Securities Act 1999 (?PPSA?)
10.1 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 Goods previously supplied by Treesafe to the Client (if any) and all Goods that will be supplied in the future by Treesafe to the Client.
10.2 The Client undertakes to: (a) sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which Treesafe may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register; (b) indemnify, and upon demand reimburse, Treesafe for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Goods charged thereby; (c) not register a financing change statement or a change demand without the prior written consent of Treesafe; and (d) immediately advise Treesafe of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
10.3 Treesafe and the Client agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
10.4 The Client waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
10.5 Unless otherwise agreed to in writing by Treesafe, the Client waives its right to receive a verification statement in accordance with section 148 of the PPSA.
10.6 The Client shall unconditionally ratify any actions taken by Treesafe under clauses 10.1 to 10.5.
11. Security And Charge
11.1 Despite anything to the contrary contained herein or any other rights which Treesafe may have howsoever: (a) where the Client and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Client and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to Treesafe or Treesafe’s nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Client and/or the Guarantor acknowledge and agree that Treesafe (or Treesafe’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations payable hereunder have been met. (b) should Treesafe elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Client and/or Guarantor shall indemnify Treesafe from and against all Treesafe’s costs and disbursements including legal costs on a solicitor and own client basis. (c) the Client and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint Treesafe or Treesafe’s nominee as the Client’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 11.1.
12. Client’s Disclaimer
12.1 The Client hereby disclaims any right to rescind, or cancel any contract with Treesafe or to sue for damages or to claim restitution arising out of any inadvertent misrepresentation made to the Client by Treesafe and the Client acknowledges that the Goods are bought relying solely upon the Client’s skill and judgment.
13.1 The Client shall inspect the Goods on delivery and shall within seven (7) days of delivery (time being of the essence) notify Treesafe of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford Treesafe an opportunity to inspect the Goods within a reasonable time following delivery if the Client believes the Goods are defective in any way. If the Client shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which Treesafe has agreed in writing that the Client is entitled to reject, Treesafe’s liability is limited to either (at Treesafe’s discretion) replacing the Goods or repairing the Goods.
13.2 Goods will not be accepted for return other than in accordance with 13.1 above.
14.1 To the extent permitted by statute, no warranty is given by Treesafe as to the quality or suitability of the Goods for any purpose and any implied warranty, is expressly excluded. Treesafe shall not be responsible for any loss or damage to the Goods, or caused by the Goods, or any part thereof however arising.
15. Consumer Guarantees Act 1993
15.1 If the Client is acquiring Goods for the purposes of a trade or business, the Client acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of Goods by Treesafe to the Client.
16. Default & Consequences Of Default
16.1 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 Treesafe’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
16.2 In the event that the Client’s payment is dishonoured for any reason the Client shall be liable for any dishonour fees incurred by Treesafe.
16.3 If the Client defaults in payment of any invoice when due, the Client shall indemnify Treesafe from and against all costs and disbursements incurred by Treesafe in pursuing the debt including legal costs on a solicitor and own client basis and Treesafe’s collection agency costs.
16.4 Without prejudice to any other remedies Treesafe may have, if at any time the Client is in breach of any obligation (including those relating to payment) Treesafe may suspend or terminate the supply of Goods to the Client and any of its other obligations under the terms and conditions. Treesafe will not be liable to the Client for any loss or damage the Client suffers because Treesafe has exercised its rights under this clause.
16.5 If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten percent (10%) of the amount overdue (up to a maximum of two hundred dollars ($200.00)) shall be levied for administration fees which sum shall become immediately due and payable.
16.6 Without prejudice to Treesafe’s other remedies at law Treesafe shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Treesafe shall, whether or not due for payment, become immediately payable in the event that: (a) any money payable to Treesafe becomes overdue, or in Treesafe’s opinion the Client will be unable to meet its payments as they fall due; or (b) the Client becomes insolvent, 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.
17. Compliance with Laws
17.1 The Client and Treesafe 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.
17.2 The Client shall obtain (at the expense of the Client) all licenses and approvals that may be required for the works.
17.3 The Client agrees that the site will comply with any occupational health and safety laws relating to building/construction sites and any other relevant safety standards or legislation.
17.4 Treesafe reserves the right not to clean the site if animal faeces or other contaminants could cause a health issue for Treesafe’s employees.
18.1 Treesafe may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Client. On giving such notice Treesafe shall repay to the Client any sums paid in respect of the Price. Treesafe shall not be liable for any loss or damage whatsoever arising from such cancellation.
18.2 In the event that the Client cancels delivery of the Goods the Client shall be liable for any loss incurred by Treesafe (including, but not limited to, any loss of profits) up to the time of cancellation.
18.3 Cancellation of orders for Goods made to the Client’s specifications or non-stocklist items will definitely not be accepted, once production has commenced.
19. Privacy Act 1993
19.1 The Client and the Guarantor/s (if separate to the Client) authorises Treesafe to: (a) collect, retain and use any information about the Client and/or Guarantors, for the purpose of assessing the Client’s and/or Guarantors creditworthiness or marketing products and services to the Client and/or Guarantors; and (b) disclose information about the Client and/or Guarantors, whether collected by Treesafe from the Client and/or Guarantors directly or obtained by Treesafe 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 and/or Guarantors.
19.2 Where the Client and/or Guarantors are an individual the authorities under clause 19.1 are authorities or consents for the purposes of the Privacy Act 1993.
19.3 The Client and/or Guarantors shall have the right to request Treesafe for a copy of the information about the Client and/or Guarantors retained by Treesafe and the right to request Treesafe to correct any incorrect information about the Client and/or Guarantors held by Treesafe.
20.1 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.
20.2 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 jurisdiction of the courts of New Zealand.
20.3 Treesafe 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 Treesafe of these terms and conditions.
20.4 In the event of any breach of this contract by Treesafe the remedies of the Client shall be limited to damages which under no circumstances shall exceed the Price of the Goods.
20.5 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 Treesafe nor to withhold payment of any invoice because part of that invoice is in dispute.
20.6 Treesafe may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
20.7 Treesafe reserves 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 Treesafe notifies the Client of such change.
20.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.
20.9 The failure by Treesafe to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Treesafe’s right to subsequently enforce that provision.