TERMS & CONDITIONS
PROVISION OF SERVICES
1. All design, landscape architecture, garden and landscaping services (“Services”) provided by Busy Lizzy Gardens Limited and its employees, contractors and agents (“Company”) to the customer (“Customer”) are provided subject to these terms and conditions of trade (“Terms”), which may be changed by the Company in any manner and at any time. The Customer acknowledges that by accepting any quotation provided by the Company for the Services (“Quote”), or engaging any Services from the Company the Customer agrees to be bound by the Terms.
2. In providing the Services the Company will exercise the reasonable degree of skill, care and diligence normally expected of a competent professional and in accordance with any applicable laws or regulations.
3. Where the Services are acquired for the purpose of a business, the provisions of the Consumer Guarantees Act 1993 will not apply and are excluded from these Terms.
4. Except as provided in the Consumer Guarantees Act 1993 (if applicable) or as expressly provided for under these Terms, all other descriptions, representations or conditions as to the fitness or suitability of the Services for any purpose, are expressly excluded.
5. The Customer will provide to the Company, free of cost, and as soon as practicable following any request for information, all information in their power to obtain which may relate to the Services. The Company shall not, without the Customer’s prior consent, use information provided by the Customer for purposes unrelated to the Services. In providing the information to the Company, the Customer will ensure compliance with the Copyright Act 1994 and shall identify any proprietary rights that any other person may have in any information provided.
6. The Customer may request variations to the Services. The Company will provide an updated estimate or quotation for such variation for acceptance or rejection by the Customer. Unless otherwise agreed by the Company, all requests and responses under this clause must be in writing.
7. The Company may, at its discretion, use sub-contractors to carry out any of the Services on the Company’s behalf. The Company will use its reasonable endeavours to ensure any sub-contractor carrying out any of the Services is suitably qualified, competent and otherwise able to perform the Services.
8. As soon as either party becomes aware of anything that will materially affect the scope or timing of the Services, the party must inform the other party in writing.
10. The Customer will at all times ensure that the site where the Company is required to provide the Services, and the facilities at such site, are safe and properly maintained.
11. The Customer will grant to the Company unencumbered and unobstructed access to all areas of the site where the Services are being performed. The Customer acknowledges that the Company cannot provide the Services if there are any loose or untethered dogs on the site, or if there is any dog faeces on the site’s garden.
12. To the extent required by law, the Customer will comply with its obligations under the Health and Safety at Work Act 2015. The Customer will advise the Company of any hazards and risks which may be encountered by the Company or its workers when undertaking the Services. If the Company or its workers are likely to enter onto the Customer’s premises or site in performance of the Services the Customer agrees to notify the Company of all Health and Safety policies and procedures of the Customer or other parties also working on the site.
13. If in the reasonable opinion of the Company it cannot provide the Services as a direct result of the Customer’s failure to meet their obligations under clauses 9 to 11, then the Customer may be charged all fees, amounts payable and expenses incurred by the Company.
TERMS OF PAYMENT
15. The Customer will pay the Company’s fees for the Services and all expenses and disbursements at the times and in the manner set out in any Quote and these Terms. Unless otherwise stated, all fees and expenses and disbursements are in New Zealand Dollars (NZD) and exclude GST. The Company may correct any clerical errors or omissions in any quotation, correspondence or invoice.
16. Any Quote provided by the Company is valid for seven days or such other period as specified in the Quote and is exclusive of disbursements and expenses. All expenses and disbursements are subject to change and are payable in accordance with clause 15. The Company reserves the right to withdraw any quote, or vary any quote at any time before the Customer accepts the quote. All quotations are limited to the items described in the quote. Any further consultation, landscaping or design advice and work that falls outside the scope of any Quote will be charged at the Company’s standard hourly rates.
17. Unless the Company otherwise agrees in writing, all fees, expenses and amounts payable by the Customer shall be paid to the Company by direct credit and in the manner specified in the Quote.
18. Time for payment of the Services is of the essence. The Customer must make all payments to the Company without delay, counter-claim, abatement, deduction or set-off.
19. Late payment of all fees, expenses or amounts payable by the Customer shall constitute a default. The Customer will be liable for default interest on overdue amounts from the date payment falls due until the date of payment at the overdraft rate of the Company’s then usual trading bank plus 5%. The Customer will also be liable for any costs and expenses (including legal and debt collection costs) resulting from any actions taken by the Company to recover the debt.
20. The Company may purchase such incidental goods and services as are reasonably required for the Company to perform the Services. The cost of obtaining such incidental goods and services shall be payable by the Customer. The Company shall maintain records which clearly identify time and expenses incurred.
INSURANCE AND LIMITATION OF LIABILITY
21. The Company shall for the duration of the Services, and for a reasonable period after the completion of the Services, hold insurance policies that the Company reasonably determines are required to cover such insurable risks as may reasonably arise in connection to the provision of the Services to the Customer.
22. To the extent permitted by law, the liability of the Company, whether in contract, in tort or otherwise, in respect of all claims for loss, damage, expenses or injury arising under or in connection with these Terms, from any cancellation of these Terms or from any negligence, misrepresentation or other act or omission on the part of the Company, its representatives, agents or sub-contractors shall not in aggregate exceed the fees payable for the Services giving rise to the claim or $5,000, whichever is the lesser amount.
23. The Company will not be liable for any loss of profits or any consequential, indirect or special loss, damage or injury of any kind arising under or in connection with these Terms or from any cancellation of these Terms or from any negligence, misrepresentation or other act or omission on the part of the Company, its representatives, agents or sub-contractors.
24. The Company will not be liable for any loss or damage resulting from any occurrence unless a claim is formally notified within one month of the completion of Services.
25. If the Company is found liable to the Customer (whether in contract, tort or otherwise), and the Customer or a third party has contributed to the loss or damage, the Company shall only be liable to the proportional extent of its own contribution.
26. Except as provided for in the Consumer Guarantees Act 1993 (if applicable) and under these Terms, the Company shall not be liable for any loss of or damage to any plants provided to the Customer in connection with the Services including by reason of accident, abuse, neglect, misuse, over or under watering of plants, weather conditions, usage not in accordance with any instructions for plants (if applicable) in any user guide, manual or other directions.
27. Where the Customer has accepted a Quote for the Services, the Company will use its reasonable endeavours to provide the Services in accordance with any timelines or dates agreed in writing between the Customer and the Company. The Company is not liable to the Customer for any failure to provide, or any delay in the providing of, the Services for anything beyond the Company’s reasonable control, including, without limitation, weather conditions or the availability of supplies.
CUSTOMER’S LIABILITY AND INDEMNITY
28. The Customer warrants that it has the full authority to engage the Company to provide the Services.
29. The Customer indemnifies the Company from and against any and all damages, claims, losses, demands, liabilities (including vicarious liability), injuries, suits, actions, judgments, costs and expenses of any kind whatsoever (including, without limitation, legal fees, service costs and costs of recovering unpaid amounts) arising out of or in any way connected with the Customer’s breach of these Terms.
RISK AND DELIVERY OF PLANTS
30. Risk passes to the Customer on delivery of any plants provided to the Customer in connection with the Services. Delivery shall be deemed complete when the Company gives possession of any plants directly to the Customer.
31. The provision of Services will not operate so as to transfer or vest in the Customer any trade mark, patent, copyright or other intellectual property. All intellectual property rights in respect of the Company and the Services provided by the Company remain the Company’s and the Customer may not use, reverse engineer, interfere with or alter the intellectual property in any way.
32. Unless otherwise agreed, the Customer authorises the Company to take photos of the Customer's garden and to use such photos on the Company’s website, Facebook, Instagram, other social media sites or for such other advertising purposes as the Company requires. Such photos will only be used by the Company in a manner that does not identify the Customer.
33. If the Customer or Guarantor are natural persons, the Customer or the Guarantor (as applicable) (each an “Individual”) irrevocably authorise:
1. The Company to collect, retain and use such information about that Individual as the Company may necessarily require for the purposes of:
1. Providing the Services to the Customer;
2. Dealing with requests, enquiries or complaints and other customer care related activities and all other general administrative and business purposes;
3. Enforcing the Company’s rights under these Terms;
4. Marketing any services provided by the Company and carrying out market and product analysis and research;
5. Carrying out any activity in connection with any legal, governmental or regulatory requirements that the Company is subject to or in
6. connection with legal proceedings, crime or fraud prevention, detection or prosecution; and
7. Any other purpose as consented to by that Individual in writing from time to time, (collectively referred to as the “Purposes”).
2. Any person or entity to provide the Company such information as the Company may necessarily require about that Individual for the Purposes;
3. The Company to disclose information about an Individual as necessarily required for the Purposes, or as otherwise authorised by that Individual, including to:
1. Third parties who provide products or services related to the Services that the Company provides, such as dealers and suppliers;
2. Third parties to whom the Company may be required to disclose information by reason of legal, governmental or regulatory authority or where the Company believes in good faith that disclosure is necessary to protect or enforce the Company’s rights or the rights, property or safety of others;
3. Trusted third parties to provide services or perform functions on the Company’s behalf; and
4. To any other third party where that Individual has given its express consent for the Company to do so.
34. In addition to clause 31, the Company shall be entitled to collect, use and disclose information about an Individual where authorised by the individual or permitted by law.
35. An Individual is entitled to request access to and correction of any such information held about them by the Company.
36. The Company will maintain reasonable security safeguards to protect an Individual’s information and take reasonable steps to ensure an Individual’s information is not disclosed to an unauthorised person or entity.
37. The Company will retain an Individual’s information for so long as is reasonably necessary to fulfil the Purposes for which it was collected, including for the purposes of satisfying any legal, regulatory, tax or accounting requirements.
38. If an Individual fails to provide any information that is reasonably requested by the Company, that Individual acknowledges that the Company may not be able to provide the Services to the Customer.
39. Any information about an Individual that is collected by the Company will be held by the Company.
The Company’s address is c/- FinHealth Limited, 96 Kohimarama Road, Kohimarama, Auckland 1071.
TERMINATION OR SUSPENSION OF SERVICES
40. In the event of the late payment of any fees, expenses or amounts payable by the Customer, the Company may suspend all or part of the Services by written notice to the Customer until such time as all overdue fees, expenses or amounts payable (including any default interest) are paid by the Customer in full.
41. The Customer may terminate the Services by providing the required written notice as specified in the Quote to the Company (or as otherwise agreed to by the Company in writing) who on receipt of such notice shall make arrangements to stop the Services and minimise further expenditure. If no required written notice is specified in the Quote, then the Customer must provide at least 3 business days written notice to the Company for any termination of gardening work and at least 5 business days written notice to the Company for any termination of building work.
42. In the event of termination of these Terms pursuant to clause 39, the Customer must pay the Company all fees, amounts payable and expenses owing and incurred as at the date of termination in accordance with clause 13. The Company may also, at its sole discretion, request that the Customer pay the Company for any reasonable expenditure as may be required to terminate the Services under clause 39.
43. The Company may terminate the Services at any time by notice to the Customer.
44. Termination shall not prejudice or affect the accrued rights or claims of either party.
45. If any dispute arises in connection with the Service or these Terms, directors or other senior representatives of the parties or individuals with authority to settle the dispute will, within 5 working days (being a day, other than a Saturday, Sunday or Public Holiday on which major banks are open for business in Auckland) (“Working Day”) of a written request from one party to the other, meet in a good faith effort to resolve the dispute. If the dispute is not resolved at that meeting, the parties will attempt to settle it by mediation. To initiate the mediation a party must give notice in writing ("Mediation Notice") to the other party to the dispute requesting mediation. The mediation will start not later than 20 Working Days after the date of the Mediation Notice.
46. To the extent permitted by law, no party may commence any court proceedings in relation to any dispute arising out of these Terms until it has attempted to settle the dispute by mediation and either the mediation has terminated or the other party has failed to participate in the mediation.
47. Nothing in this clause will prevent a party from obtaining urgent interlocutory relief in respect of a breach or suspected breach of these Terms.
48. The Company shall not be liable for any breach of these Terms in the event of force majeure, being any failure, delay or breach caused by strike, industrial dispute, natural disaster, shortage or unavailability of stocks of goods or raw materials, failure of any of the Company’s suppliers to supply goods, delay in transit, import restrictions, legislative, governmental or other prohibition or restriction, fire, flood, pandemics, hostilities, commotions or any other causes whatsoever (whether similar to the foregoing or not) beyond the Company’s reasonable control (“Force Majeure Event”).
49. If the Company considers that a Force Majeure Event has occurred and the Company will be unable to perform the Services as a result of a Force Majeure Event, the Company will promptly notify the Customer of that fact and may suspend the Services. Any suspension of the Services by the Company will be limited to the period during which the Force Majeure Event continues. Where the provision of the Services by the Company has been suspended for a period of 30 consecutive days or more, the Company may terminate the Services by giving written notice to the Customer.
50. Each notice or other communication under these Terms is to be made in writing by personal delivery or by post to the addressee at the address, and marked for the attention of the person or office holder (if any), from time to time designated for the purpose by the addressee.
51. A communication will be deemed to be received:
1. In the case of a letter, on the seventh Working Day after posting;
2. In the case of personal delivery, when delivered; and
3. In the case of emails upon delivery to the recipient’s last known email address provided that no notification of failed delivery has been received by the sender,
52. provided that any notice given after 5:00pm or on a day which is not a Working Day shall be deemed to be given at 9:00am on the next Working Day.
53. These Terms set out the entire agreement and understanding between the parties and merges all prior discussions between them. No party will be bound by any conditions, warranties or representations except as expressly provided in these Terms.
54. Any waiver, delay or failure to execute any rights by the Company shall not be deemed a waiver of that right or any further or other right of the Company. No waiver is effective unless it is in writing.
55. If any provision of these Terms is, or becomes, unenforceable, illegal or invalid for any reason, the relevant provision shall be deemed to be modified to the extent necessary to remedy such unenforceability, illegality or invalidity or if this is not possible then such provision shall be severed from these Terms, without affecting the enforceability, legality or validity of any other provision of these Terms.
56. The Customer may not assign its rights and obligations under these Terms without the Company’s written consent.
57. If the Customer is a company of trust, then in consideration of the Company agreeing to provide the Services to the Customer, the director(s), trustee(s) or agent(s) entering into these Terms on behalf of a customer who is a company or trust (each a “Guarantor”), also enter into these Terms in their personal capacity and jointly and severally personally undertake to ensure the payment of all money owed now or in the future by the Customer to the Company and indemnify the Company against any non-payment by the Customer and any other breach of these Terms.
58. Any personal liability of a Guarantor under these Terms will not exclude the Customer in any way from the liabilities and obligations contained in these Terms.