GENERAL TERMS AND CONDITIONS FOR THE SUPPLY OF SERVICES BY TREETECH SPECIALIST TREECARE LIMITED
1. APPLICATION
(a) You (the Customer) acknowledge that all services provided to you by Treetech Specialist Treecare Limited (Treetech) (Services) are subject to these Terms.
If there is any inconsistency between these Terms and any other written agreement between the Customer and Treetech, the provisions in that written agreement will prevail to the extent of the inconsistency with these Terms. These Terms will prevail over any other terms and conditions stipulated by the Customer or included as part of any of the Customer's documentation unless such other terms are expressly acknowledged and agreed to in writing by Treetech.
(b) Treetech may amend these Terms at any time by uploading the latest version of these Terms to www.treetech.co.nz. The revised Terms will apply in respect of any Services that are requested by the Customer following the amended Terms being uploaded.
2. QUOTATIONS
(a) If Treetech wishes to offer the requested Services to a Customer Treetech will provide the Customer with a quotation describing the Services that it will undertake and the charges for those Services or the basis on which the charges for the Services will be calculated (Quotation). In addition to any Quotation, the Customer agrees that the price payable by the Customer to Treetech for any Services is determined as set out in clause 5.
(b) Subject to clause 2(c) below, a Quotation will be open for acceptance by the Customer for 30 days after it is provided to the Customer, following which time the Quotation will automatically lapse without notice.
(c) Treetech reserves the right to withdraw or update any Quotation at any time before it has been accepted by the Customer.
(d) Treetech or the Customer must immediately provide written notice to the other party on becoming aware of anything that may materially affect the scope or timing of the supply of the Services under any Quotation. Upon receipt of a written notice, the parties must agree in writing to any amendment as a new Quotation before Treetech supplies, or continues to supply, the Services. Treetech may also update any Quotation as provided for in clause 5(d) of these Terms.
(e) Either party may request that amendments are made to the Services by written notice to the other party. Treetech may, in its sole discretion, determine that a direction from the Customer or any other request amounts to an amendment to the Quotation and provide the Customer with written notice of the amendment.
3. CANCELLATION OR SUSPENSION
(a) The Customer acknowledges that upon acceptance of any Quotation, the Customer will be bound by that Quotation and will not be entitled to terminate, rescind or cancel the Quotation or Services without Treetech's prior consent. Any consent to cancellation given by Treetech will be subject to:
(i) the Customer paying all reasonable costs incurred by Treetech up to the date of cancellation including (without limitation) costs in relation to traffic management plan preparation, equipment preparation and management planning time incurred by Treetech; and
(ii) the Customer paying the full amount due for the Services if the cancellation occurs 48 hours or less before the schedule time for delivery of the Services.
(b) If Treetech has notified the Customer that Treetech wishes to increase a Quotation under clause 5(d), the Customer may cancel the Quotation (and the Services) by notice to Treetech (but provided that the Customer will otherwise pay to Treetech all costs incurred by Treetech in providing any Services prior to cancellation, including without limitation, costs in relation to traffic management plan preparation, equipment preparation and management planning time incurred by Treetech).
(c) Notwithstanding any other provision set out in these Terms, Treetech reserves the right to cancel or suspend the provision of any Services to the Customer in its sole discretion at any time and without liability to the Customer.
4. SERVICES
(a) Treetech will carry out the Services with a degree of skill, diligence, prudence and foresight which would reasonably and ordinarily be expected from a skilled and experienced person engaged in New Zealand in the same type of activity and under the same or similar circumstances (Good Industry Practice).
(b) The Customer acknowledges and agrees that:
(i) it has the authority to have the Services carried out at the property described in the Quotation (Property). Where the Customer is obtaining the Services on behalf of a third party Property owner the Customer will provide these Terms and the Quotation to the Property owner and obtain the Property owner’s prior agreement to these Terms, including the claims limitations set out in clause 9 of these Terms;
(ii) a Quotation for felling services assume that the relevant trees are free from metal, stone or any other hidden obstructions;
(iii) should Treetech determine, in its sole discretion, that any tree is unable to be removed (whether for safety of persons or property, or other reasons) in the manner anticipated in the Quotation, Treetech reserves the right to increase the Quotation (and clause 2(d) of these Terms will apply);
(iv) unless specified in the Quotation, stump grinding services include the removal of the relevant tree stump to a depth of 150mm and do not include the removal of lateral roots or stump grindings;
(v) unless specified in the Quotation, firewood left on the Property will be in rings and not split. All lengths provided by Treetech are approximate; and
(vi) while Treetech will use Good Industry Practice in relocating any trees, Treetech does not guarantee the survival of any relocated trees and will not be liable for any loss incurred by the Customer as a direct or indirect result of Treetech relocating any trees in accordance with the Quotation.
(c) The Customer acknowledges and agrees that it has the sole responsibility and liability for:
(i) any damage to underground services (including but not limited to water pipes, power cables or telecommunications cables) as a direct or indirect result of Treetech supplying the Services, unless the Customer has provided the exact location of the underground services to Treetech prior to Treetech supplying the Services (a cable location service can be provided by Treetech for an additional cost);
(ii) any damage to any driveways, paths and any other property as a direct or indirect result of Treetech supplying the Services, including but not limited to damage resulting from Treetech’s use of any heavy machinery or any oil or residue left behind;
(iii) identifying any protected trees on the Property;
(iv) obtaining all necessary resource consents, and providing evidence of these consents to Treetech prior to Treetech supplying the Services, unless the Customer provides written authorisation for Treetech to obtain these consents on its behalf;
(v) defining all boundaries in relation to the Property;
(vi) investigating all private covenants in relation to the Property;
(vii) obtaining any permissions required for Treetech to supply the Services (including but not limited to, neighbour consents); and
(viii) obtaining permission for Treetech to supply the Services from the Property owner (if not the Customer) and from any person (not being the Customer) who owns a tree located within the Property or who occupies any property Treetech needs to access in order to provide the Services.
5. PRICE AND PAYMENT
(a) The price payable for any Services supplied by Treetech to the Customer (Price) will be calculated on the basis of:
(i) the price provided in, or calculated according to, the Quotation (or any update to the Quotation);
(ii) plus any additional costs incurred by Treetech and payable by the Customer under these Terms including clauses 5(d) to (f) below.
(b) The Price will be payable by the Customer:
(i) for a residential Customer within seven days following the issue of an invoice (subject to paragraph (iii)); or
(ii) for commercial Customers by the 20th of the month following the issue of an invoice (subject to paragraph (iii)); or
(iii) on or before the date, or dates, agreed between the parties and in the manner specified or accepted by Treetech,
(the Due Date).
(c) An invoice will be issued immediately upon completion of the provision of the relevant Services by Treetech.
(d) Treetech reserves the right to alter the Price agreed with any Customer by notice to the Customer to reflect any increase in the costs incurred by the Seller in supplying the Services to the Customer that is beyond the reasonable control of the Seller (including without limitation any taxes, foreign exchange fluctuations, duties and the provision of any laws enacted after the date of acceptance of any Quotation by the Customer), provided that the Customer does not terminate the relevant Quotation and Services in accordance with clause 3(a) of these Terms.
(e) Where a Quotation states that the Services will be carried out on a time charge basis, Treetech may purchase any incidental goods and/or services as are reasonably required for Treetech to perform the Services and the costs of such incidental goods and/or services will be payable by the Customer.
(f) Unless expressly stated in writing, all:
(i) Services are carried out on a cash basis;
(ii) hourly rates are charged per hour with a minimum charge of 1 hour and hourly thereafter;
(iii) amounts quoted by Treetech will be deemed to exclude GST; and
(iv) consumables and reasonable out of pocket expenses incurred by Treetech in providing the Services will be charged to the Customer at Treetech’s standard charges for those consumables and expenses.
All GST, the costs of consumables and out of pocket expenses will be payable by the Customer at the same time as the Price and in addition to the Price.
(g) If the Customer fails to pay any amount due to Treetech on or before the relevant Due Date, Treetech may in its sole discretion:
(i) suspend performance of any further Services until the Customer pays the amount due in full; and/or
(ii) charge interest on any amount overdue for payment by the Customer from the Due Date until the date payment of that amount is received in full, together with any actual costs (legal or otherwise and including legal costs on a solicitor/client basis) incurred by Treetech for the enforcement of payment of such overdue amounts. Interest will be charged on any overdue amount at the rate of Treetech’s current overdraft rate plus 5% per calendar month and will be compounded monthly.
6. CLAIMS IN RELATION TO SERVICES
(a) Any claim by the Customer that any Services supplied do not correspond to the relevant Quotation, or that any Services received are defective or have damaged any property or thing, must be made in writing to Treetech within a period of 10 working days from the date of performance of the relevant Services.
(b) If a claim is made by the Customer in accordance with clause 6(a), the Customer will afford Treetech a reasonable opportunity to investigate the reason for that claim.
(c) Subject to verification by Treetech, Treetech may in its sole discretion either re-perform the relevant Services provided to the Customer or will otherwise provide a refund of the Price paid by the Customer in relation to the Services, provided that any refund of the Price paid by the Customer in relation to the Services will be the sole and exclusive remedy of the Customer in the circumstances and will be in full and final settlement of any and all claims relation to the Services to which any claim relates.
7. NO WARRANTIES
(a) Except as expressly set out in these Terms or any Quotation, Treetech makes no representation, warranty or undertaking (whether express or implied) in relation to any Services. To the maximum extent permitted by law, all such representations, warranties and undertakings are negatived and excluded.
(b) Where the Customer is acquiring, or holds itself out as acquiring, any Services for the purposes of a business:
(i) in terms of section 43(2) of the Consumer Guarantees Act 1993 (CGA), the Customer will not assert or attempt to assert any rights or claims against Treetech under the provisions of the CGA; and
(ii) the Customer and Treetech agree that sections 9, 12A, 13 or 14 of the Fair Trading Act 1986 do not apply with respect to the Services and these Terms, and the Customer agrees it is fair and reasonable that the Customer is bound by this provision.
(c) The Customer acknowledges that it is not relying on Treetech's skill or judgment as to the suitability or otherwise of the Services for any purpose that was not expressly set out in the Quotation.
8. INTELLECTUAL PROPERTY
(a) The Customer acknowledges that, as between the Customer and Treetech, Treetech will own all of the intellectual property rights (whether registered or unregistered) relating to the Services (Intellectual Property) and all right and title to any actual or possible development or improvement in the Services or the Intellectual Property (Developed IP), including but not limited to, data specific to Treetech’s asset management software (GUS).
(b) Subject to the Customer’s full payment of the Price and any additional costs incurred by Treetech in accordance with clause 5(f) by the Due Date, Treetech grants the Customer the right to use and reproduce any Intellectual Property inherent in the Services provided to the Customer, as reasonably required, for the exclusive purposes in connection with those Services. If the Customer fails to make full payment of the Price and any additional costs incurred by Treetech in accordance with clause 5(f), by the Due Date, the Customer will have no right to use any of the Intellectual Property.
(c) Notwithstanding any rights acquired under clause 8(b), the Customer acknowledges that it will not at any time acquire any other right, title or interest in any kind in the Intellectual Property or the Developed IP.
9. INDEMNITY AND LIMITATION OF LIABILITY
(a) To the extent permitted by law, Treetech will have no liability to the Customer or any third-party in respect of the provision of the Services including damage to property and including but not limited to:
(i) damage to driveways, footpaths or paving;
(ii) damage to any guttering;
(iii) other damage caused by material of any kind dislodging or falling and landing in an unexpected area.
(b) Notwithstanding clause 9(a) above and any contrary provision contained in these Terms or elsewhere, and subject to clause 9(c), the maximum liability of Treetech to the Customer under or in connection with these Terms or in relation to any Services for any claims, damages, liabilities, losses or expenses howsoever incurred (and whether in contract, tort or otherwise) will be limited at Treetech's sole option to:
(i) re-performing the relevant Services; or
(ii) the refund (or partial refund if a full refund is not reasonable) of the Price actually paid by the Customer for the Services; or
(iii) a combination of (i) and (ii) above,
on the basis that to the extent permitted by law this will be the sole and exclusive remedy of the Customer as against Treetech in connection with the relevant Services.
(c) Nothwithstanding clauses 9(a) and 9(b) above, nothing expressed or implied in these Terms will confer any liability on Treetech for any claim of any nature concerning the Services which is made:
(i) after the date that is 20 working days from the date the Services are provided; or
(ii) for any loss of profit or consequential, indirect or special loss, damage, cost or expense, suffered or incurred by the Customer,
as a direct or indirect result of:
(iii) a breach by Treetech of any of its obligations under these Terms; or
(iv) the performance of the Services.
(d) The Customer will indemnify Treetech at all times against any liability, loss, damage, costs or claims (including any third party claim) suffered or incurred by Treetech as a direct or indirect result of the Services or any breach by the Customer of any of its obligations under these Terms (including without limitation all dishonour fees, debt collection, collection agency costs and legal costs on a solicitor/client basis), except to the extent any such loss, damage, costs or claim results from any breach of these Terms by Treetech or negligence on the part of Treetech in its performance of the Services.
10. USE OF INFORMATION
The Customer acknowledges and agrees that:
(a) when providing any personal information to Treetech, the Customer will ensure that it complies with all applicable laws (including but not limited to the Privacy Act 2020 and the Copyright Act 1994), relevant agreements or use licences and will notify Treetech of any proprietary rights that any other person may have in any information provided;
(b) any personal information provided by the Customer to Treetech may be collected and used by Treetech for any purpose connected with Treetech's business including (but not limited to) providing the Customer with direct marketing materials, debt collection, and credit reporting or assessment;
(c) Treetech has the right to take photographs of the Property and the Services on the Property,;
(d) the Customer consents to Treetech’s use any photographs taken in accordance with clause 10(c) above for Treetech’s marketing purposes;
(e) Treetech is authorised to carry out credit checks in relation to the Customer, and where the Customer is a company, about the directors of the Customer and to provide such information to any external agency or party for credit information and assessment purposes necessary for those purposes;
(f) Treetech and any external agency or party may retain and/or use such information for as long as they see fit; and
(g) the Customer may request access to, and correction of, any of the Customer’s personal information that is held by Treetech.
11. GENERAL
(a) These Terms are governed by the laws of New Zealand. The parties submit to the exclusive jurisdiction of the New Zealand courts in respect of all matters relating to these Terms.
(b) If any provision of these Terms is found to be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions will not be affected.
(c) The Customer may not assign, subcontract or hold on trust for any third party any of its rights under these Terms without the prior written consent of Treetech. Any change of control of the Customer will be deemed to be an assignment for the purposes of this clause.
(d) Where two or more persons or entities are listed as being the Customer, those parties will be jointly and severally liable for the payment of all amounts owing by the Customer to Treetech.
(e) Treetech will not assume any duty imposed on the Customer pursuant to the Health and Safety at Work Act 2015 in connection with these Terms or the Services.
(f) Treetech will not be liable for any delay in performance of the Services or default under these Terms due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, drought, storm or any other event beyond the reasonable control of Treetech.
12. DISPUTE RESOLUTION
(a) If a genuine dispute relating to the Services or these Terms arises between the Customer and Treetech (Dispute), either of them may give written notice (Dispute Notice) to the other stating the subject matter of the Dispute, and the parties must attempt to resolve the Dispute between themselves. If the dispute remains unresolved following the period of one month from the date the Dispute Notice is issued, the Customer or Treetech may submit the Dispute to mediation by a single mediator agreed upon in writing by them or (if they are unable to agree on a mediator within one after the submission to mediation) nominated by the President for the time being of the Arbitrators' and Mediators' Institute of New Zealand Inc.. In the event of any submission to mediation:
(i) the mediator will not be acting as an expert or as an arbitrator;
(ii) the mediator will determine the procedure and timetable for the mediation; and
(iii) the Customer and Treetech will share equally the cost of the mediation.
No party may issue any legal proceedings (other than for urgent interlocutory relief) relating to any Dispute, unless that party has first taken all reasonable steps to comply with this clause.
