Terms and Conditions of Trade
1.1 In these Terms and Conditions:
(a) “Agreement” means the Contract Key Terms as stated in the Schedule, and these Terms and Conditions.
(b) “Contractor”, “We” or “Us” means Rochford Landscapes Limited and its successors and assigns.
(c) “Client” or “You” means the person, firm, company or entity buying Services from us.
(d) “Materials” means the materials to be supplied as described in the Schedule or as otherwise agreed in accordance with this Agreement.
(e) “Price” means the contract price stated in the Schedule or as otherwise fixed in accordance with this Agreement.
(f) “Services” means all Services We will supply to you as described in the Schedule or as otherwise agreed in accordance with this Agreement.
(g) “Schedule” means the Schedule attached to these Terms.
2.1 Calculation: At our sole discretion the Price will be either:
(a) Our quoted Price (subject to clause 2.3); or
(b) Our estimated Price (subject to clause 3) which shall not be deemed binding upon us as the actual Price can only be determined upon completion of the Services. We undertake to keep you informed should the actual Price look likely to exceed the original estimate; or
(c) As indicated on our invoices in respect of the Services and Materials.
2.2 Price plus tax: You will pay the Price together with the amount of any Materials and Services Tax or any other tax which may be payable in respect of the supply of Services and Materials or otherwise under these Terms and Conditions.
2.3 Quotation: Any quotation we have made for the supply of Services constitutes an invitation to treat and not a binding offer. All quotations lapse after 7 days but we reserve the right to change or withdraw any quotation without notice at any time.
3.1 We reserve the right to change the Price:
(a) If you request a change to the Materials;
(b) If you request a variation to the Services originally scheduled (including any applicable designs, plans and/or specifications);
(c) where additional Services are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, poor weather conditions, limitations to accessing the site, unmarked or unknown services, high water table; 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, hard rock barriers below the surface, the need for rock breaking, iron reinforcing rods in concrete, or hidden pipes and wiring in walls, etc.) which are only discovered on commencement of the Services;
(d) in the event of increases to us in the cost of labour or Materials, or fluctuations in currency exchange rates, which are beyond our control;
(e) in the event that we are required to provide the Services urgently, and as a result may require our employees to work outside normal business hours (including but not limited to working, through lunch breaks, weekends and/or Public Holidays) with the consequential additional labour costs (penalty rates may apply).
3.2 Our hourly rates for variations are detailed in the Schedule. We reserve the right to amend these at any time.
3.3 Variations do not need to be in writing.
4.1 For breach: Without prejudice to any other remedies we may have, if at any time you remain in breach for more than 7 days of any obligation (including those relating to payment) under these terms and conditions we may suspend or terminate the provision of Services to you. We will not be liable to you for any loss or damage you suffer because we have exercised our rights under this clause.
4.2 Before commencement: We may cancel any contract to which these terms and conditions apply or cancel provision of Services at any time before we have commenced the Services, by giving written notice to you. On giving such notice we will repay to you any sums paid in respect of the Price, less any amounts you owe to us for Materials already procured. We will not be liable for any loss or damage whatsoever arising from such cancellation.
4.3 Cancellation by Client: In the event that you cancel this Agreement, or the provision of any Services, you will be liable for any and all loss incurred (whether direct or indirect) by us as a direct result of the cancellation (including, but not limited to, any loss of profits).
4.4 Material made to order: Cancellation of orders for Materials made to your specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
5.1 Deposit: In order to confirm a booking for Services you may be required to pay a deposit.
5.2 Payment of balance: You will pay the balance of your account (time being of the essence) according to any combination of the following:
(a) on completion of the Services;
(b) by way of instalments/progress payments in accordance with our specified progress payment schedule. Such progress payment claims may include the reasonable value of authorised variations and the value of any Materials delivered to the site but not yet installed;
(c) the date specified on any invoice or other form as being the date for payment;
(d) failing any notice to the contrary, on receipt of our invoice.5.3 No deductions: All payments by you will be full, free and clear of any deduction, withholding, set-off, counterclaim or other claim.
5.4 Acceleration: Notwithstanding any credit period, full payment for all unpaid Materials and Services will become due immediately upon:
(a) You or any guarantor becoming insolvent or bankrupt;
(b) The commencement of any act or proceeding in which your or any guarantor’s insolvency is involved; or
(c) You or any guarantor resolving to wind up or being ordered to be wound up or having a receiver, liquidator of official manager appointed in respect of all or any of your assets; or
(d) You or any guarantor ceasing to trade.
PENALTY FOR LATE PAYMENT
6.1 Default interest: Failure by you to make payment in full of any amount payable pursuant to this Agreement on the due date constitutes a default and, without prejudice to any other rights or remedies available to us, simple interest at 1.5% per month will be payable upon demand and from the due date until payment.
6.2 Legal costs: You will indemnify us against all loss, costs and expenses, including legal costs on a solicitor/client basis, which we may suffer or incur as a result of any failure by you to make due and punctual payment.
PERFORMANCE OF THE SERVICES
7.1 Time: We undertake to use reasonable endeavours to deliver the Services within the time specified by us but dates we give for performance will be indicative only. No date specified by you will be binding on us without our written agreement. In the event that we are unable to provide the Services as agreed solely due to any action or inaction by you then we will be entitled to charge a reasonable fee for re-providing the Services at a later time and date.
7.2 Delays: The Services start date will be put back and/or the completion date extended by whatever time is reasonable in the event that we claim an extension of time (by giving you written notice) where completion is delayed by an event beyond our control, including but not limited to any failure by you to:
(a) Have the site ready for the Services; or
(b) Notify us that the site is ready.
7.3 Services to be supplied: You acknowledge and agree that the Services are limited to those set out in the invoice, order form or other similar document issued by us.
7.4 Substitution of Materials: If we are not able to obtain the specific Materials described in the Schedule we can use substitute materials at our discretion.
8.1 You will comply with any specific obligations detailed in the Schedule.
8.2 Access: You will ensure that we have clear and free access to the site at all times to enable us to perform the Services. We will 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 it is due to our negligence.
8.3 Information: you will provide us with any relevant information required to enable us to perform the Services. This includes advising us of the precise location of all underground services on the site. We will be entitled to rely on the accuracy of any plans, specifications and other information provided by you. Where information you provide is incorrect and we are required to undertake additional work we reserve the right to charge for such additional work.
8.4 Consents/Approvals: you will obtain, at your cost, all licenses, approvals, application and permits that may be required for the Services.
8.5 Insurance: You will obtain and keep on foot contracts work cover in relation to the Services.
8.6 Laws: you will comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Services, including any Worksafe guidelines regarding health and safety laws relating to building/construction sites and any other relevant safety standards or legislation.
8.7 Health and Safety: It is your responsibility to ensure that all safety measures have been taken at the site where the Services are to be performed so as to comply with all applicable health and safety laws. We have not and will not at any time assume any obligations as your agent or otherwise which may be imposed on you from time to time pursuant to the Health & Safety at Work Act 2015, including any subsequent regulations (the “HSW Act”) arising from the engagement of Services under this Agreement. Unless otherwise agreed, the parties agree that for the purposes of the HSW Act, we will not be the person who controls the place of work. Prior to our personnel attending the relevant site to perform the Services you will:
(a) Inform us of all applicable health and safety rules and regulations that may apply at the site;
(b) Notify us promptly of any risk, safety issues or incidents that may arise or may have arisen at the site that are relevant to our provision of the Services.
8.8 Right to delay or cancel: If we are concerned about the presence of any hazards or risks at the site we may, in our absolute discretion, delay the performance of some or all of the Services or cancel any order by notice in writing to you.
OUR OBLIGATIONS AND WARRANTIES
9.1 We warrant that:
(a) We have the right to enter into this Agreement;
(b) We will perform the Services to a reasonable standard of care and skill;
(c) We will perform the Services in accordance with relevant laws.9.2 We will take reasonable steps to ensure that while on site our personnel comply with any health and safety requirements and other reasonable security requirements made known to us by you.
9.3 If this Agreement relates to a residential building project then the implied warranties in the Building Act are excluded as far as possible.
9.4 Where the Agreement relates to completion of work initiated by another contractor our obligations will be strictly limited to those stated in the Schedule and our warranty is limited to Producer Statement 3.
10.1 The parties agree that your obligations to us for the provision of the Services will not cease (and ownership of the Materials will not pass) until:
(a) you have paid us all amounts owing to us; and
(b) you have met all other obligations due by you to us in respect of all contracts between us and you.
10.2 The parties further agree that, until ownership of the Materials passes to you in accordance with clause 10.1:
(a) you are only a bailee of the Materials and unless the Materials have become fixtures must return the Materials to us on request;
(b) you hold the benefit of your insurance of the Materials on trust for us and must pay to us the proceeds of any insurance in the event of the Materials being lost, damaged or destroyed. The production of these terms and conditions by us will be sufficient evidence of our rights to receive the insurance proceeds direct from the insurer without the need for any person dealing with us to make further enquiries;
(c) unless the Materials have become fixtures you irrevocably authorise us to enter any premises where we believe the Materials are kept and recover possession of the Materials;
(d) you will not charge or grant an encumbrance over the Materials nor grant nor otherwise give away any interest in the Materials while they remain our property;
(e) we may commence proceedings to recover the Price notwithstanding that ownership of the Materials has not passed to you.
PERSONAL PROPERTY SECURITIES ACT 1999 (“PPSA”) AND PROTECTION OF THE CONTRACTOR’S RIGHTS
11.1 You acknowledge that on signing the Agreement you grant us a security interest in favour of us in respect of the Materials and their proceeds and secures payment by you to us of all amounts from time to time owing by you to us under this Agreement or any other agreement between us. When Materials supplied by us have become an accession or have been manufactured, processed, co-mingled or affixed with other property, you will ensure that Materials supplied by us and their proceeds will remain identifiable. You acknowledge that your security interest continues in the accession or the processed or co-mingled Materials and their proceeds.
11.2 You will promptly do all things, sign any further documents and/or provide any further information which we may reasonably require to enable us to perfect and maintain the perfection of our security interest.
11.3 You will notify us of any change in name and/or any other change in your details (including, but not limited to, changes in your address, email address, trading name or business practice) not less than 14 days before the change takes effect.
11.4 The parties agree that to the fullest extent permitted by law, nothing in sections 114(1)(a) and 133 of the PPSA will apply in respect of them. You waive your rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129 and 131 of the PPSA.
11.5 You waive the right to receive a copy of the verification statement or a financing change statement in respect of your security interest.
11.6 In the event that:
(a) you fail to perform any obligation contained or implied in this Agreement; and/or
(b) it is necessary for us to take any steps or incur any expense to protect our interests under this Agreement, including the registration and maintenance of our security interests or repossession of the Materials;then we may perform such obligation, pay such money, or incur such expense, and you will indemnify and reimburse us for all monies paid or expenses incurred (including all legal and associated costs) by us (inclusive of any tax).
11.7 You must not create, or allow or permit the creation of, a security interest (as defined in the PPSA) or lien in any Materials.
11.8 If you have not paid an account in full by the due date for payment, we or our agent(s) may (in addition to our other rights), and is authorised to, enter your premises without giving prior notice and recover our Materials, and may resell any of them, without incurring any liability to you or any person claiming through you. You may not revoke the permission granted in this clause.
12.1 Consumer Guarantees Act: If you are a consumer, you have certain rights under the Consumer Guarantees Act 1993 and the Fair Trading Act 1986. Those rights apply alongside these Terms and Conditions and are not affected by anything in this clause.
12.2 Limitation of liability:
(a) Claims: We will have no liability for unsatisfactory Materials or Services unless you notify us in writing of your claim within 12 months (in the case of residential projects) or 30 days (in the case of commercial projects) after performance of the Services. You will give us the opportunity to inspect the Materials and the work done and must (at your cost) store the Materials separately (if appropriate) and in the state and condition in which they were supplied until the inspection;
(b) We will have the option, exercisable at our discretion, to replace or give credit for any Services in respect of which any claim is made or proven, thereby fully discharging all our legal liability. Materials will not be accepted for return other than in accordance with this clause;
(c) We are not liable for any loss caused by you, or any loss that results from your failure to take reasonable steps to avoid or minimise your loss;
(d) Notwithstanding any other provision of this agreement, neither party will be liable for indirect, special, consequential or similar damages or losses, including but not limited to loss of profit or revenues or other financial or economic losses of any kind and whether or not the other party has been advised of the potential for such damages.12.3 Materials Warranties: A warranty for Materials will be the current warranty provided by the manufacturer of the Materials. We will 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.
12.4 Indemnity: Whilst we will take all care to avoid damage to any underground services you agree to indemnify us 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 8.3.
12.5 Business purposes: If you hold yourself out as acquiring the Services for business purposes, you acknowledge that the provisions of the Consumer Guarantees Act 1993 will not apply and are expressly excluded.
CONSTRUCTION CONTRACTS ACT 2002
13.1 You hereby expressly acknowledge that:
(a) We have the right to suspend work within five (5) working days of written notice of our intent to do so if a payment claim is served on you, and:
(i) the payment is not paid in full by the due date for payment and no payment schedule has been given by you; or
(ii) a scheduled amount stated in a payment schedule issued by you in relation to the payment claim is not paid in full by the due date for its payment; or
(iii) you have not complied with an adjudicator’s notice that you must pay an amount to us by a particular date; and
(iv) we have given written notice to you of our intention to suspend the carrying out of construction work under the construction contract.
(b) if we suspend work, we:
(i) are not in breach of contract; and
(ii) are not liable for any loss or damage whatsoever suffered, or alleged to be suffered, by you or by any person claiming through you; and
(iii) are entitled to an extension of time to complete the contract; and
(iv) keep our 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 an adjudicator’s determination has not been complied with.
(c) if we exercise the right to suspend work, the exercise of that right does not:
(i) affect any rights that would otherwise have been available to us under the Contract and Commercial Law Act 2017; or
(ii) enable you to exercise any rights that may otherwise have been available to you under that Act as a direct consequence of us suspending work under this provision.
14.1 Dispute Resolution: Any dispute concerning this Agreement will be settled by full and frank discussion between the parties. In the absence of any agreement within 30 days of any notification of any dispute, the matter will be referred to the Building Disputes Tribunal for arbitration in accordance with the Tribunal’s processes. The parties agree that any decision by the arbitrator will be fully and finally binding on the parties, all of whom waive their respective rights to further appeal or redress in any court or tribunal, except solely for the purpose of obtaining execution of the judgment rendered by the arbitration. The parties agree that all costs and expenses of the arbitration proceeding will be borne in accordance with the decision of the arbitrator.
14.2 Services of Notices: Any written notice given under this contract shall be deemed to have been given and received:
(a) by handing the notice to the other party, in person;
(b) by leaving it at the address of the other party as stated in this Agreement;
(c) if sent by email to the other party’s last known email address.14.3 Events outside our control: If any cause beyond our reasonable control including but not limited to order of a government or other authority, strike, lockout, labour dispute, delays in transit, difficulty in procuring components or equipment, embargo, accident, emergency, act of God interfere with our performance of any of our obligations under these Terms and Conditions then we may at our sole discretion suspend our performance of any such obligation or cancel any contract for the purchase of Services and we will not be liable to you in any respect.
14.4 Waiver: These Terms and Conditions remain in force notwithstanding any neglect, forbearance or delay in enforcement. We will not be deemed to have waived any condition unless such waiver will be in writing and such waiver will only apply to the particular transaction to which it refers.
14.5 Severability: If any clause or provision of these Terms and Conditions will be held illegal or unenforceable by any judgment of any Court or Tribunal having competent jurisdiction, such clause will not apply to this Agreement. The remaining provisions of this Agreement will remain in full force and effect as if the clause or provision held to be illegal or unenforceable had not been included.
14.7 Electronic Communications: You consent to receive commercial electronic messages from us. If you wish to opt out of receiving these messages tell us in writing and we will remove you from the mailing list.
14.8 Confidentiality: Each party must keep confidential during the term and after termination of this Agreement the existence and terms of this Agreement and all information of a confidential or sensitive nature supplied by the other party to this Agreement except to the extent that disclosure is required by law or where such information is or becomes available in the public domain without breach by a party of its confidentiality obligations under this Agreement. A party may disclose such information to its legal and other advisers, bankers and other persons who are subject to an obligation of confidentiality.