Terms and Conditions
Terms of Trade for Top Garden Limited are as follows:
General & Special Conditions of Contract
1. The Conditions govern the contract between the parties and hereafter shall be read in conjunction of any specific
terms and conditions of the Project, where there are any discrepancies between the Conditions and specific terms
and conditions, the specific terms and conditions shall prevail. Any amendments to the Contract must be agreed
upon by both parties in writing, and any further contracts with You will be on the basis of such mutually agreed
amendments.
Plans and Specifications
2. Copy right and ownership in all drawings, specifications and other technical information provided by Us in
connection with the contract is vested in Us. Where We have followed plans and specifications provided by You,
You shall indemnify Us against all damages, penalties, costs and expenses in respect of which We may become
liable through the utilisation of those plans and specifications.
Quotation and Acceptance
3. We shall provide You a Quotation for the Project. The Quotation shall be subject to the clarifications and
exclusions set out in the documentation accompanying the Contract and shall be valid for a period of thirty (30)
days from the date specified on the Quotation.
4. You shall accept the Quotation by signing the acceptance form accompanying the Quotation and signing a copy
of any plans and specifications attached to the Quotation, if provided. Alternatively, You shall accept the
Quotation by transferring any deposit according to the Quotation. The acceptance of the Quotation in the
manner specified in this clause shall constitute a binding contract and acceptance of the Contract.
5. We acknowledge that any estimates as to the time frames for the commencement and completion of the Project
are approximate only. We will use all reasonable endeavours to ensure the Project is commenced and completed
within the time frame specified but We shall not be liable whatsoever for any delay or failure by Us to adhere to
the said timeframes. We shall not be responsible for any delays caused by separate or nominated subcontractors.
Variations and Adjustments
6. Except as expressly provided in the Contract, no variation or alteration to the scope of the Project shall be binding
on the parties unless recorded in writing and signed by both parties, including any adjustment to the Quotation.
7. Any changes to the Project required as a result of any ambiguous drawings or any other documentation provided
by You shall be deemed as a variation to the Project.
8. We shall have the right to replace and/or substitute any material and/or goods provided shall, after reasonable
efforts had been made by Us. You are responsible for the reasonable price difference between different materials
and/or goods.
9. We have the right to include the cost of adjustments provided for in the Contract with any staged payment, or
by adjusting any final payment. If any adjustments have not been invoiced at practical completion of the Contract,
those adjustments must be paid by You within seven (7) working days of the date of Our invoice. We have the
right to withhold possession of the Project site until such payment has been satisfied by You in full and with all
applicable penalty interests.
Cancellation
10. In the event that You wish to cancel the Contract at any time after acceptance of the Quotation, you shall pay all
actual and reasonable costs and expenses incurred by Us together with a reasonable administration fee, provided
that You shall not be entitled to cancel the Contract once the Project has commenced without the prior consent
in writing of Us.
11. We shall, without any liability, and without any prejudice to any other right it has in law or equity, have the right
by notice to suspend or cancel in whole or in part any Contract if You fail to comply with the Contract, or You fail
to pay any money owing after the due date, or if You commit an act of bankruptcy as defined in section 19 of
the Insolvency Act 2006, or if liquidation proceedings are commenced in relation to You, or if You shall otherwise
become bankrupt or insolvent, or if any other event occurs which evidences a lack of credit worthiness or
insolvency on the part of You. Any cancellation or suspension by Us pursuant to this clause shall not affect Our
claim for money due at the time of cancellation or suspension or for damages for any breach of any terms of this
contract or Your obligations to Us under the Contract
Price
12. The price of the Contract shall be the price stated in the Quotation together with all extras selected by you. The
price quoted for the Project excludes GST. GST shall be payable by you in addition to the price quoted. Where
no price is stated in writing or agreed, the Goods and/or Services shall be deemed to be sold and/or supplied at
the current price applying at the date upon which the invoice for the goods or services is issued to You.
13. Payment in full must be made immediately after We have provided an invoice in relation to the Contract. Where
We agree to extend credit to You, You agrees to pay Us the amount invoiced by the 20th of the month following
the date of the invoice. No exception or extensions will be allowed and time is of the essence. You may not
set off any payments owing to Us against any payments owed by Us to You, or any claim which You may have
against Us.
14. Without prejudice to any other rights of action We may have for late payment by You, We may charge interest
on a daily basis to You, at a rate equal to 3% per month (36% per annum) or such other rate as notified to You by
Us, until the overdue amounts are paid. Interest will accrue after, as well as before, any judgment which We
may obtain against You and You will also be liable to pay all of Our expenses (including legal costs) incurred in
attempting to obtain, or obtaining, a remedy for Your failure to pay us amounts owed in accordance with the
Contract.
15. Notwithstanding anything contained in this clause or the Quotation, the price of the Goods and/or Services may
be increased by the amount of any reasonable increase in cost of supply of the Goods or Services between the
date upon which the Quotation is delivered to You and the date upon which the Goods or Services are supplied
and where such increase is beyond the reasonable control of Us.
Margins (Mark-ups)
16. We are entitled to on-charge You for costs it incurs pursuant to the Contract, and to add a margin to the price
it on-charges you. Those costs include (but are not limited to):
a. materials;
b. Sub-contractors (including Sub-trades, specialist contractors and contracted professionals and experts);
c. the costs of hiring plant and equipment;
e. costs incurred in variations or additional work;
f. travel and delivery costs; and
g. costs that are part of a variation or additional works (where there is no fixed price for the variation or
additional works).
17. Subject to clause 16 below, when We on-charge You for costs that We incur, that margin will be as specified in
clause II of the Specific Provisions of the Contract (and, if no rate is specified, the margin will be 15%).
18. Our margin is not required to be limited to the percent specified in the Specific Provisions of the Contract (or to
the 15% rate specified above) if that margin relates to costs that are:
a. repair of defects;
b. already included in the stipulated price;
c. part of a variation or additional works (where there is a fixed price for the variation or additional works);
d. already included in the hourly rates or costs specified in the Charge-up Schedule; or
e. rates for labourers (or other workers) who are the employees of any contactor that We use or who regularly
work under contract for Us (on a basis that appears similar to an employer and employee relationship).
Defects
19. Where the Contract undertaken is of a commercial nature We shall at Our sole cost rectify any defects in the
materials or workmanship which are notified to Us within ninety (90) days of completion of the Contract and
within a reasonable time of receiving written notification of those defects. We shall not be liable under this clause
to remedy:
a. defects covered by a manufacturer’s or supplier’s guarantee that is available to and may be enforced by You;
or
b. defects in or damage caused by work undertaken by You.
20. Where the Contract is of a residential nature any notification of a defect in the materials or workmanship by You
in writing to Us within twelve (12) months from the completion of the Contract shall be rectified by Us at Our
costs within a reasonable time of notification by You of the defect. We shall not be liable under this clause 20 to
remedy:
a. defects covered by a manufacturer’s or supplier’s guarantee that is available to and may be enforced by You;
b. defects in or damage caused by work undertaken by You.
Warranty and Liability
21. The warranties, descriptions, representations, or conditions whether implied by law, trade, custom or otherwise
are, and all other liability of us, whether in tort (including negligence), contract or otherwise is, expressly excluded
to the fullest extent permitted by law.
22. Insofar as We may be liable, notwithstanding anything contained in the Contract, to the extent permitted by law
the total liability of Us whether in tort (including negligence), contract or otherwise for any loss, damage or injury
arising directly or indirectly out of completion of the project or any other breach of Our obligations is limited to
the lesser of:
a. price of Goods complained of; or
b. the cost of completing any necessary repairs/remedial work; or
c. the actual loss or damage suffered by You.
23. In no circumstances whatsoever will be We liable for any event for any loss of profits, consequential, indirect or
special damage, loss or injury of any kind suffered by You or any other person.
Insurance
24. If the Project involves an extension or alteration to existing premises, You shall be solely responsible for arranging
an extension of Your insurance policy to provide insurance cover for all associated risks.
Ownership
25. Any Goods supplied by Us shall be at the sole risk of Us until the earlier of payment for the Goods or delivery of
the Goods to you.
26. Ownership of any Goods supplied as part of the Project shall not pass to You until all amounts owing by You to
Us in respect of the Goods have been paid in full.
PPSR
27. You acknowledge and agree that by assenting to these terms and conditions, You grant a Purchase Money
Security Interest to Us, as that term is defined in the Personal Property Securities Act 1999 (“PPSA”), in all Goods
supplied by Us to You.
28. You irrevocably undertake to sign any further documents and/or provide any further information (which
information You warrant to be complete, accurate and up-to-date in all respects) which We may reasonably
require to enable registration of a financing statement or financing change statement on the Personal Property
Securities Register. The costs of registering a financing statement or a financing change statement shall be met
by You and may, where applicable, be debited against Your credit account with Us. You shall not agree to allow
any person to register a financing statement over any of the Goods supplied by Us without the prior written
consent of Us and will immediately notify Us in writing if You become aware of any person taking steps to register
a financing statement in relation to such Goods.
29. You: waive the rights to:
a. receive a copy of any verification statement;
b. receive a copy of any financing change statement:
c. If the Goods are for Your business use, You agree, to the extent Part 9 of the PPSA applies, that it will have
no rights under Part 9 of the PPSA.
30. You irrevocably grant to Us the right to enter upon Your property or premises, without notice, and without being
in any way liable to You or to any third party, if We have cause to exercise any of Our rights under section 109
of the PPSA, and You shall indemnify Us from any claims made by any third party as a result of such exercise.
31. We and you agree that nothing in sections 114(1)(a), 116, 117(1)(c), 119, 120(2), 121, 125, 126, 127, 129, 131, and
132 of the PPSA will apply to the Contract, or the security interest under the Contract.
32. You will be responsible to Us for any costs or damages incurred in reclaiming and disposing of the unpaid Goods.
Such costs include but are not limited to loss in value, cost or repossession, damaged premises and recovery,
storage, resale and legal costs, on a solicitor and client basis. These costs shall be recoverable as a debt due to
Us by You.
Collection and Use of Information
33. You authorise Us to collect, retain and use any information about You for the purpose of assessing your
creditworthiness and/or enforcing any rights under the Contract.
34. You authorise Us to disclose any information obtained to any person for the purposes set out in this clause.
Where You are a natural person, the authorities under this clause are authorities or consents for the purposes of
the Privacy Act 2020.
Force majeure
35. We are not under any liability whatever in respect to any failure to deliver or delay in delivery or completion of
the Contract due to any cause beyond Our control of whatever nature. In no circumstances whatsoever shall
We be liable for consequential loss whether suffered by You, and/or any third party.
Consumer legislation
36. Where the provisions of the Consumer Guarantees Act 1993 apply, these terms will be read subject to the
application of that Act and in the case of any conflict, the provisions of that Act will apply. Where You are a
business (as “business” is defined by the Consumer Guarantees Act 1993) You agree that You are acquiring all
Goods from Us for the purpose of a business and that the Consumer Guarantees Act 1993 does not apply.
Miscellaneous
37. Failure by Us to enforce any of the terms and conditions contained in this agreement shall not be deemed to be
a waiver of any of the rights or obligations We have under the Contract.
38. If any provision of the Contract shall be invalid, void or illegal or unenforceable, the validity, existence, legality
and enforceability of the remaining provisions shall not be affected, prejudiced or implied.
39. You may not assign any of Your rights or obligations under the Contract without the prior written consent of Us.
Personal Guarantee
40. In consideration for us agreeing to complete the project at the request of you, where you are a company or trust,
the directors or trustees signing this agreement also sign (signing includes any electronic signing) this agreement
in their personal capacity and jointly and severally personally undertake as Principal debtors to us the payment
of any and all moneys owed by you to us and indemnify us against non-payment by you.
Agency
41. You authorise Us to contract either as You or Your agent for the provision of goods or services.
42. Where We enter into a contract of the type referred to this clause You agree to pay any amounts due under that
contract.
43. Any list of proposed subcontractors supplied by Us is provided on a without prejudice basis and We reserve the
exclusive right to change subcontractors without adjustment to the Quotation.
Dispute Resolution
44. Any party wishing to invoke these dispute resolution procedures must give written notice to the other party to
the Agreement specifying the nature of the dispute.
a. Negotiation
If notice of a dispute is provided, the parties must in good faith promptly endeavour to resolve the dispute
by negotiation.
b. Mediation
The parties will refer the dispute to mediation if they are unable to resolve it within ten (10) working days (or
before that, if the circumstances involve urgency). Mediation may be formal through a professional
mediation (unless agreed otherwise) or an informal mediation through an agreed third party.
c. Arbitration
If no agreement has been reached in mediation within twenty working days of the referral to mediation or
within such a time as the parties may agree then either party may refer the dispute to arbitration. The
arbitration will be by a single arbitrator and in accordance with the Arbitration Act 1996.
d. Litigation
Nothing in these dispute resolution provisions limits any right the parties may have to bring a claim before
the district court, high court or disputes tribunal.
45. Disputes in excess of ten thousand dollars ($10,000.00) shall be referred at our sole discretion to arbitration under
the Arbitration Act 1996 or any subsequent Act passed in its place.
Mortgage
46. You agree that should any Goods supplied by us be affixed or installed in a property such as to render them a
fixture of that property, You agree that in consideration of Us allowing the Goods to be so affixed or installed,
You shall upon written demand being made by Us at any time but before payment in full is made to Us, execute
a Memorandum of Mortgage (“Mortgage”) over the property in which the Goods have become a fixture in favour
of Us (to be prepared by our solicitors at your cost), for the amount equivalent to the unpaid balance owing plus
any interest and costs owing thereon until paid in full. The terms of such mortgage shall be collateral to the terms
hereof and payment in full of the amounts owing to Us hereunder shall operate as a full discharge of the
mortgage. We agree not to make demand on You to execute such a mortgage unless any of the following occur:
a. Failures to make payment on the due date as deemed by Us;
b. Any composition with creditors, act of bankruptcy, winding up or receivership of the Customer.
47. The Mortgage referred to in this Contract hereof shall be the ADLS form approved by the Registrar General of
Land 2007/4237, and the covenants of the said form whether executed by You or not shall be deemed to be
included. You hereby authorise us to lodge and maintain a Caveat against the title to the property in which the
Goods have been affixed or installed for the protection of the agreement to mortgage described above should
contract in its absolute discretion consider it necessary to lodge such a Caveat. You hereby grant to Us an
irrevocable power of attorney in relation to the property in which the Goods have been affixed or installed to
enable Us to execute the mortgage referred to in this Contract hereof should the mortgage not be executed by
Us for any reason whatsoever PROVIDED THAT We will not execute a mortgage as attorney for You unless We
have requested in writing that You execute the mortgage pursuant to the terms of this agreement and You have
failed to execute such a mortgage within five (5) working days of such request. In such case You shall not request
for the lapse of Our caveat, and shall grant to Us an irrevocable power of attorney to withdraw any request to
the Registrar General of Land.
Governing Law
48. The within terms and conditions shall be governed by and construed in accordance with the laws of New Zealand
and the parties shall submit to the exclusive jurisdiction of the New Zealand Courts.
Definitions:
Conditions mean these Terms and Conditions of Trade.
Contract means the Conditions and any specific terms and conditions together, and represents the entire
Contract on which the Project will be performed by Us, subject to any variations agreed upon in writing.
Goods and Services means all goods or services supplied or carried out by Us in the course of performing the
Contract, and where the context permits the terms “Goods” and “Services” will be interchangeable.
Project means the document(s) provided by Us which sets out the basis on which We are prepared to carry out
the provision of Goods and Services.
Quotation means any price, fees, costs or charges payable by You to Us for the provision of Goods or Services,
or in relation to such provision, as agreed to under this Contract.
Us/We/Our means Top Garden Limited.
You/Your means the person(s) described in the Proposal buying the Services (and if more than one, jointly and
severally), and Your respective agents, principals or employees as the case may be.
*These Terms and Conditions is the property of Top Garden Limited, and any unconsented use is prohibited and may
attract legal proceedings by Top Garden Limited.