Terms

Terms and Conditions

1. Interpretation
   1. In this Agreement, unless the context otherwise requires:
   1. 'Agreement': means this service agreement, including the background, forward page, quotes and schedules.
   2. 'Commencement Date': means the date listed on the forward page as the required start date of work to complete the services listed.
   3. 'Intellectual Property': means any copyright, patent, trade mark, service mark, design right, know-how, trade secret, eligible layout and all or any other industrial or intellectual property rights whether or not registered.
   4. 'Services': means the services referred to in any forward page, quotes and schedules.
   5. 'Completion Date': means the date listed on the forward page as the required completion date of work to complete the services listed.
2. Term of Agreement
   1. This Service Agreement ("Agreement") is entered into between Yard Matters Limited, hereinafter referred to as "Yard Matters", and the "Client" named overleaf.
   2. Both parties agree to fulfil their respective obligations as outlined or detailed as attached in this Agreement.
   3. This Agreement will commence on the date it is signed, with work beginning on the Commencement Date arranged with the Client and, unless terminated earlier in accordance with clause 13, shall be deemed complete when all services have been completed and invoices have been paid.
   4. There is no obligation on the Client or Yard Matters to extend the Agreement upon its termination or agree to enter into any subsequent Agreement or other engagement.
3. Obligations
   1. Provision of Services
   1. Throughout the term of this Agreement, Yard Matters shall report to and comply with the reasonable requests concerning the performance of the Services of the Client. Yard Matters may provide services for any other person so long as such services do not interfere with Yard Matters's obligations under this Agreement.
   2. General Obligations
   1. During the term of this Agreement, Yard Matters must perform the Services to industry standards.
   2. Without the other party's prior written consent, either party shall not contract any liability of any kind whatsoever in the name of or on behalf of the Client, except as expressly permitted by this Agreement.
   3. Use of Premises and Equipment
   1. Yard Matters must provide their own equipment and such other equipment necessary to perform the Services unless agreed with the Client.
   2. Whilst Yard Matters is working on the Client's property, Yard Matters may (for the purposes of delivering Services) use any services necessary to complete the work specified by this Agreement as Yard Matters needs.
   3. Yard Matters agrees to treat the Client's property with all reasonable care and diligence.
   4. Site Preparation and Access
   1. The Client must ensure the site is ready for work and provide clear access. Any costs incurred due to lack of access or unprepared sites will be the responsibility of the Client.
   2. The Client is responsible for advising Yard Matters of any underground utilities or other obstacles that might affect work.
   5. Weather
   1. Should inclement weather conditions make services unsafe or unfeasible, Yard Matters reserves the right to postpone the scheduled service.
   2. Yard Matters will endeavor to inform the Client of any postponements in a timely manner.
   3. Postponed services will be allocated the next available slot, respecting prior bookings. Delays may occur, and immediate rescheduling is not guaranteed.
   6. Delivery And Installation
   1. Yard Matters shall endeavour to meet any stated delivery or installation dates but will not be liable for any losses incurred by any delays.
   2. Any additional costs incurred due to changes or delays not caused by Yard Matters will be charged to the Client.
   7. Waste Removal
   1. Unless otherwise agreed upon, waste generated due to the services provided will be removed by Yard Matters and disposed of in an environmentally friendly manner. The Client will bear any disposal fees.
   8. Subcontracting
   1. Yard Matters reserves the right to subcontract any of its obligations under this Agreement, but it will remain responsible for the performance and quality of the work.
   9. Warranties And Guarantees
   1. If the Services performed by Yard Matters are defective or not performed in accordance with the provisions of this Agreement, Yard Matters shall promptly remedy the defective Services, and the Client shall not be required to pay Yard Matters for undertaking such remedial work. To the extent that Yard Matters cannot remedy the defective Services, Yard Matters shall be liable for the cost of obtaining a third party to do so.
   2. Yard Matters guarantees the health and quality of plants at the time of planting but cannot guarantee their survival as they depend on proper care and environmental conditions beyond Yard Matters' control.
   3. Any guarantees on workmanship or materials will be as per manufacturer warranties or as separately documented.
   4. Yard Matters is not responsible for the quality or warranty of third-party products used during the service. The Client agrees to seek any warranty or quality claims directly from the third-party product manufacturer.
   10. Client Responsibilities
   1. The Client shall be responsible for the care of plants and materials once installed, including appropriate watering, unless a separate maintenance agreement is in place.
4. Quotes
   1. Any quotes provided are Yard Matters's best estimate of their cost to complete the work specified by this Agreement. Invoiced fees may vary slightly.
5. Fees, Invoicing and Payment
   1. Fees
   1. The Client must pay the Fees to the Supplier for providing the Services.
   2. Fees charge hourly will be charged an additional administration fee per invoice period.
   3. If quoted costs are found to change drastically due to any reason, Yard Matters will cease work and advise the Client as soon as this becomes apparent.
   4. Costing structure may vary from Client to Client depending on the job requirements and the Client's wishes. However, Yard Matters makes the best effort to ensure costs remain relative no matter the cost structure used.
   2. Invoicing
   1. Invoices will be prepared and sent on completion of the work, weekly, fortnightly, or monthly, depending on the nature of the work and the details of this Agreement.
   2. Invoices will be produced and sent to the Client as close as possible to the end of the invoice period and by the means specified in this Agreement.
   3. The invoice must specify to which Services the Fees and reimbursable expenses relate. Yard Matters's total Fees claimed in the invoice shall be calculated in the manner specified in the Agreement and are Yard Matters's total payment for the Services performed in the period to which the invoice relates.
   4. The invoice shall specify the amount of GST payable (if any). Where GST is charged, Yard Matters shall provide a valid tax invoice under section 24 of the Goods and Services Act 1985.
   3. Payment
   1. Payment of amounts invoiced is due the 15th day of the following month unless alternative arrangements are made with the Client.
   2. On accounts over 15 working days overdue, Yard Matters reserves the right to charge 25% per month interest (accruing daily from the date invoiced until paid in full).
6. Expenses
   1. Yard Matters must not incur any expenses on behalf of the Client without prior written consent of the Client. Any agreed expenses must be included with Yard Matters's invoice and substantiated with reasonable evidence of the expense having been incurred.
7. Set Off
   1. To the extent that any amount is due and payable by Yard Matters to the Client under this Agreement, the Client may set- off that amount against monies otherwise payable to Yard Matters in respect of the Services without prior notice to Yard Matters.
8. Intellectual and Physical Property
   1. All intellectual property rights related to the services will remain the exclusive property of Yard Matters.
   2. All work and materials produced and/or provided by Yard Matters as a result of the Agreement remain in Yard Matters's ownership until all invoices are paid in full.
   3. All work and materials produced and/or provided by Yard Matters as a result of this Agreement will become the Client's Property on the full payment of the invoice issued for the services provided.
9. Confidentiality
   1. For the purpose of this Agreement, 'Confidential Information' means all confidential information to which either party may have access in its dealings with the other in connection with performing the Services specified in this Agreement.
   2. Both the Client and Contractor will keep all Confidential Information confidential. Without the other parties written consent, they must not disclose or permit disclosure of the Confidential Information to anyone.
10. Conflict of Interest
    1. Yard Matters must ensure in the course of performing the Services that conflicts of interest that may compromise the Client's interests do not arise. Yard Matters must notify the Client immediately in writing if it considers a conflict of interest may occur or has appeared.
11. Health and Safety
    1. Yard Matters must comply with the Health and Safety at Work Act 2015 (and its amendments and any other Health and Safety regulations) in providing the Services or any associated activities under this Agreement.
12. Liability
    1. Yard Matters is liable for and indemnifies the Client in relation to:
    1. Any direct, indirect or consequential injury, loss, damage or costs incurred by Yard Matters while completing the services agreed to by this Agreement.
    2. Any liability incurred by Yard Matters for any claim or demand made by or on behalf of any person or authority against Yard Matters while performing the work agreed under this Agreement or on the Client property, including any penalties, costs or losses arising from any such claim.
    3. Any infringement by Yard Matters to the Confidential Information of the Client.
    2. Yard Matters holds liability insurance coverage. Any claims against Yard Matters should be made within 15 days of the incident or are otherwise no longer claimable, releasing Yard Matters from any liability.
13. Termination
    1. Except as provided in this clause, this Agreement will terminate on the completion of the services covered by this Agreement.
    2. Notwithstanding clause 13.1, either party may terminate this Contract, at any time, on 30 days written notice to the other party.
    3. Notwithstanding clause 13.1, the Client may terminate this Agreement immediately without notice to Yard Matters if:
    1. Yard Matters fails to observe or perform any of the terms and conditions of this Agreement or
    2. Yard Matters commits an act which, in the Client's reasonable opinion, is incompatible with Yard Matters's continued performance of its obligations under this Contract or
    3. Yard Matters becomes insolvent.
    4. Such immediate termination shall release the Client from any financial obligation to Yard Matters, save any monies owing for services performed to the date of such termination.
14. Disputes
    1. Dispute
    1. Where any question, dispute or difference ('Dispute') arises between the parties concerning or in any way arising out of this Agreement or the performance of either party in terms of this Agreement, the parties will make a genuine effort to resolve the question, dispute or difference without resorting to litigation using the procedures set out in this clause.
    2. Representatives for negotiation
    1. The party seeking resolution of a Dispute ('the First Party') must provide written notice of the same to the other party ('the Other Party') and nominate in that notice its representatives for the negotiation. The Other Party must, within 15 days, notify the First Party in writing of the names of its representatives for the negotiation. Each representative nominated will have the authority to settle the Dispute.
    3. Referral to mediation
    1. If the parties are unable to resolve the Dispute by discussion and negotiation within 14 days of receipt of the written notice from the Other Party (or a timeframe as otherwise agreed), then the parties must immediately refer the Dispute to mediation.
    4. Conduct of mediation
    1. The mediation should be conducted in terms of the LEADR New Zealand Inc Standard Mediation Agreement. The mediation must be conducted by a mediator and at a fee agreed by the parties. Failing an Agreement between the parties, the mediator will be selected, and their fee will be determined by the Chair for LEADR New Zealand Inc. The mediator's fee will be borne equally between the parties.
    5. Urgent interlocutory relief and right to terminate
    1. Nothing in this clause will preclude or prevent either party from taking immediate steps to seek urgent interlocutory relief before an appropriate court or from terminating this Agreement in accordance with its provisions.
15. General Provisions
    1. Force Majeure
    1. No party shall be liable for any act, omission or failure to fulfil its obligations under this Agreement if such act, omission or failure arises from any cause reasonably beyond its control. The party unable to fulfil its obligations will immediately notify the other in writing of the reasons for its failure to fulfil its obligations and the effect of such failure. If there is any reason or intervening event that means that Yard Matters cannot perform their duties under this Agreement, Yard Matters will not be entitled to be paid in relation to that period.
    2. Waiver
    1. To waive a right under the Agreement, that waiver must be in writing and signed by the waiving party.
    3. Independent contractor
    1. The Supplier is an independent contractor of the Client. No other relationship (e.g. joint venture, agency, trust or partnership) exists under the Agreement.
    4. Notices
    1. Notice given by a party under the Agreement must be delivered via email to Yard Matter and by the method chosen by the Client to receive invoices defined by this Agreement.
    5. Severability
    1. Should any part or portion of this Agreement be held invalid, the remainder shall continue in force and effect as if the invalid provision had been deleted, provided that the parties to this Agreement may negotiate a valid and enforceable provision and replacement of the invalid provision.
    6. Variations
    1. This Agreement contains all of the terms, representations and warranties made between the parties and supersedes all prior discussions and agreements covering the subject matter of the Agreement.
    2. This Agreement can be varied only by written Agreement between the parties.
    7. Entire Agreement
    1. The Agreement sets out everything agreed by the parties relating to the Services and supersedes and cancels anything discussed, exchanged or agreed prior to the Agreement's start. The parties have not relied on any representation, warranty or Agreement relating to the subject matter of the Agreement that is not expressly set out in the Agreement, and no such representation, warranty or Agreement has any effect from the Agreement's start. Without limiting the previous sentence, the parties agree to contract out of sections 9, 12A, and 13 of the Fair Trading Act 1986, and it is fair and reasonable that the parties are bound by clause.
    8. Governing Law
    1. This Agreement is subject to New Zealand law. References to dollars are references to New Zealand dollars unless otherwise stated. Any arbitration or court proceedings about this Agreement or the Services must be brought and heard in New Zealand.