021 183 5373

Terms of Service

Winfield Landscapes Limited

1. DEFINITIONS AND INTERPRETATION

  1. ‘Winfield Landscapes’ means Winfield Landscapes Limited and shall include its agents, directors, and employees.
  2. ‘Client’ means any person who utilises the services of Winfield Landscapes and any person acting on behalf of, and with the authority of, the Client.
  3. ‘Services’ shall refer to all activities, tasks, labour, and responsibilities undertaken by Winfield Landscapes in relation to the project. These services include, but are not limited to, landscaping, construction, installation, maintenance, and any other activities necessary to fulfil the obligations outlined in the agreement. The scope of Services may also encompass consultations, inspections, and any modifications requested by the client during the course of the project, subject to agreed-upon terms.
  4. ‘Materials’ shall refer to all physical items, products, supplies, or equipment provided by Winfield Landscapes, including but not limited to landscaping materials, tools, plants, or any other items necessary for the performance of the services. These materials may be either sourced directly by Winfield Landscapes or acquired through approved third-party suppliers, and they are integral to the completion of the Services at the Project Site.
  5. ‘Fee’ shall mean the cost of the Services as agreed between Winfield Landscapes and the Client and shall include all disbursements, additional costs and expenses otherwise incurred by Winfield Landscapes in accordance with these Terms. All costs are based on current supplier pricing but may be subject to change.
  6. The Client has been afforded an opportunity to read these Terms and obtain advice and to negotiate changes hereto.
  7. ‘Terms’ means these terms and conditions of service.

2. APPLICATION OF THESE TERMS

These general terms apply to all contracts between Winfield Landscapes and the Client and override any terms referred to in writing or orally. Nobody claiming to act on behalf of Winfield Landscapes is authorised to waive or change these general terms verbally. Waivers or changes to these general terms are effective only if made in writing and signed by the Winfield Landscapes director.

3. MATERIALS, SERVICE, AND SITE

Winfield Landscapes shall supply all Materials and equipment required for the Services being undertaken at the Project Site.

4. AVAILABILITY OF PLANT AND MATERIALS

This Agreement is based on all Materials required to provide the Services continuing to be available to Winfield Landscapes on existing terms. Winfield Landscapes reserves the right to cancel this Agreement prior to commencement of the Services in the event of any change in circumstances relating to supply of Materials beyond the control of Winfield Landscapes, which are to Winfield Landscapes’ disadvantage. In the event of cancellation under this clause, Winfield Landscapes shall return all money paid in advance of commencement of Services by the Client, subject to Clause 6.7, and neither party shall have any right or action against the other for cancellation.

5. ACCEPTANCE

  1. Any instructions received by Winfield Landscapes from the Client for the supply of Services shall constitute a binding contract and acceptance of these Terms.
  2. All amounts are in New Zealand Dollars and are exclusive of GST unless otherwise stated.

6. PAYMENT TERMS

  1. Payment for Services shall be made in full on the date of the invoice (the “due date”) unless otherwise agreed.
  2. A deposit may be required and if required, no Services will commence until the deposit is paid and the Client will have no claims for any resultant delays.
  3. Progress payments may be required and if required, no services will continue until the progress payment is paid and the Client will have no claims for any resultant delays.
  4. Interest may be at the discretion of Winfield Landscapes and be charged on any amount owing after the due date at the rate of 10% per annum above Winfield Landscapes’ bank’s commercial overdraft interest rate.
  5. Any expenses (including debt collection agency and service fees), disbursements and legal costs (including legal costs on a solicitor-client basis) incurred by Winfield Landscapes in the enforcement of any rights contained in this contract shall be paid by the Client on demand.6. Receipt of a bill of exchange, or other negotiable instrument shall not constitute payment until such negotiable instrument is paid in full. All payments are to be made by means of an electronic funds transfer or cash payment unless otherwise agreed by Winfield Landscapes.
  6. Winfield Landscapes reserves the right to alter the estimate/quotation because of circumstances beyond its control and unknown to it at the time of the estimate/quotation. Such circumstances may include, but are not limited to, property access issues, unexpected underground obstructions (e.g., pipes, rocks, or tree roots), unforeseen weather conditions that delay or impact the work schedule, or changes in local regulations or council requirements affecting the project. Any additional costs arising from these, or similar circumstances will be communicated to the Client and agreed upon before proceeding.
  7. If this Agreement or any part of this Agreement is cancelled for any reason, Winfield Landscapes reserves the right to retain all or part of any moneys paid to cover any costs incurred or disbursements Winfield Landscapes has paid under this contract.

7. OWNERSHIP

  1. Notwithstanding any period of credit, ownership of the Materials remains with Winfield Landscapes and will not pass to the Client until all Materials supplied to, and all Services performed have been paid in full. Until that time, the Client agrees as follows:
  2. The Client will hold the Materials as bailee for, and in a fiduciary relationship with Winfield Landscapes.
  3. The Client must store all Materials so they can readily be identified by Winfield Landscapes.
  4. In accordance with, and subject to the Client’s rights under the Credit (Repossessions) Act 1997, Winfield Landscapes, or Winfield Landscapes’ Agent(s) may (in addition to Winfield Landscapes’ other rights) enter any premises where any of the Materials the subject of this Agreement are stored (or where Winfield Landscapes reasonably believes the Materials are stored) and search and recover the Materials, and may resell any of them.

8. RISK AND INSURANCE

Notwithstanding Clause 9, the Materials become the Client’s responsibility on delivery and all risk (including loss, damage, or deterioration) passes to the Client. Delivery shall be deemed to have occurred when the Materials are delivered to the Project Site. Insurance is the responsibility of the Client, and the Client agrees to adequately insure the Materials, unless otherwise arranged in writing with Winfield Landscapes before delivery of the Materials.

9. BOUNDARIES

The Client shall, at the request of Winfield Landscapes, point out the boundaries of the Project Site, and the Client acknowledges that Winfield Landscapes will rely on the Client’s representation. The Client agrees that Winfield Landscapes shall have no liability to the Client whatsoever for any loss or damage to any person arising as a result of Winfield Landscapes’ reliance on the Client’s representation as to the boundaries of the Project Site. The Client will indemnify Winfield Landscapes and will keep Winfield Landscapes fully and effectively indemnified against any cost, claim, charge, loss, liability, damage, or expense Winfield Landscapes suffers or incurs as a result of Winfield Landscapes’ reliance on the Client’s representation as to the boundaries of the Project Site.

10. PRIVACY ACT

Winfield Landscapes will use any personal information collected about and supplied by the Client solely for providing the Services, credit, and administration. The Client is entitled to access and request correction of all personal information.

11. COMPLETION DATE

Whilst Winfield Landscapes will endeavour to keep to estimated construction and completion dates, Winfield Landscapes shall not be liable for, and the Client is not entitled to cancel this Agreement for any reasonable delay in construction and/or completion, howsoever caused. The Client shall indemnify Winfield Landscapes against any loss, liability, cost, claim, charge, damage, or expense suffered or incurred by Winfield Landscapes in consequence of any delay on the part of or caused by the Client.

12. ACCESS

Any estimate of completion date is given on the understanding that the Client provides a satisfactory, safe, and continuous means of access to the Project Site, with a clear passage for all Materials, together with adequate protection for all such Materials.

13. FORCE MAJEURE

Winfield Landscapes shall not be liable in any way for any failure to perform or delay in performing this Agreement if the cause of such failure or delay is outside or beyond Winfield Landscapes’ reasonable control (including but without derogating from the generality of the foregoing: fire, wind, flood, earthquake, volcanic eruption, public disorders, riot, war, strike, embargoes, lockout, industrial action, transport restrictions).

14. WARRANTY

  1. Winfield Landscapes warrants that the Services will be performed in a good and workmanlike manner and pursue all manufacturers’/suppliers’ warranties given in respect of the Materials. The Client acknowledges and agrees that the Materials (including, without limitation, paving tiles, laid in situ concrete, coloured concrete, and exposed concrete) may vary in colour from batch to batch, which means there may be a variation in colour between any sample, description, photo or specification and the Materials provided. Accordingly, the Client acknowledges and agrees that, to the extent permitted by law, any such variation in colour in any Materials will not constitute a failure of the Materials to correspond with the sample, description, photo, or specification and that the Client may not reject the Materials and/or withhold payment of the price solely because of any such variation in colour.
  2. All plants will be installed following the best horticultural practice, but survival of plants cannot be guaranteed post finalisation of the project.

15. CONSUMER GUARANTEES ACT AND FAIR TRADING ACT

Nothing in these terms shall limit or restrict the Client’s rights or remedies under the Consumer Guarantees Act 1993 (if applicable) or the Fair Trading Act 1986 (if applicable).

16. LIABILITY

  1. The Consumer Guarantees Act 1993, the Fair Trading Act 1986 and other statutes may imply warranties or conditions or impose obligations upon Winfield Landscapes which cannot by law (or which can only to a limited extent by law) be excluded or modified. In respect of any such implied warranties, conditions or terms imposed on Winfield Landscapes, Winfield Landscapes’ liability shall, where it is allowed, be excluded or if not able to be excluded only apply to the minimum extent required by the relevant statute. If the Client is in trade (and this is not the Client’s primary residential property) then the parties agree to contract out of the Fair Trading Act and the Consumer Guarantees Act to the greatest extent possible, it being fair and reasonable to do so.
  2. Except as otherwise provided by clause 6.4, Winfield Landscapes shall not be liable for any loss or damage of any kind whatsoever, arising from the supply of Services by Winfield Landscapes to the Client, including consequential loss whether suffered or incurred by the Client or another person and whether in contract or tort (including negligence) or otherwise and irrespective of whether such loss or damage arises directly or indirectly from Services provided by Winfield Landscapes to the Client.
  3. The Client shall indemnify Winfield Landscapes against any and all claims and losses of any kind whatsoever however caused or arising and without limiting the generality of the foregoing of this clause whether caused or arising as a result of the negligence of Winfield Landscapes or otherwise, brought by any person in connection with any matter, act, omission, or error by Winfield Landscapes its agents or employees in connection with the Services. If contrary to the disclaimer or liability contained in these Terms Winfield Landscapes is deemed liable to the Client, following and arising from the supply of Services by Winfield Landscapes to the Client, then such liability is limited in its aggregate to the Fee.

17. SUBCONTRACTS

Winfield Landscapes may subcontract out the performance of Winfield Landscapes’ obligations under this contract or any part of this contract without prior consent.

18. COMPLIANCE WITH PLANS AND BY-LAWS

Winfield Landscapes shall conform to the plans and specifications provided, and with the by-laws and regulations of the relevant local authority. Winfield Landscapes shall in all respects comply with the terms of any building permits issued and directions given by the building inspector. This offer, and the commencement and completion of the project are subject to our being able to obtain on terms satisfactory to us, all such licences, permits and authorities whether governmental or otherwise essential to the performance of our obligations. Winfield Landscapes accepts no responsibility for the delays in the granting of or for any failure to grant any such licenses, permits or authorities.

19. TERMINATION

Winfield Landscapes may, (in addition to other rights), terminate all or any Agreement with the Client if:

  1. The Client fails to, or Winfield Landscapes has reasonable grounds to believe the Client will fail to, comply duly and punctually with any of these conditions or other terms of any contract with Winfield Landscapes; or
  2. The Client declares bankruptcy. Termination of this Agreement is without prejudice to any other right, power, or remedy that Winfield Landscapes may have.

20. DISPUTE RESOLUTION

In the first instance, any dispute between the Client and Winfield Landscapes will be discussed between the parties to attempt to settle such dispute in good faith. Where the parties cannot resolve the dispute the provisions of the Arbitration Act 1996 apply. All contracts between the parties are governed by the laws of New Zealand.

21. CHANGES TO TERMS OF TRADE

Winfield Landscapes reserves the right to alter these terms of trade at any time, by publication to the Winfield Landscapes website and/or written notice to the Client.

22. PLANTS

  1. As natural growing matter, the health of plants (including trees and shrubs) is influenced by many factors outside the Contractor’s control. Where the Landscaping Works includes any planting and/or the relocating of plants, this clause 22 applies.
  2. For the avoidance of doubt, if the Contractor plants a planting plan prepared for the site by another party, the Contractor takes no responsibility for the suitability of plants specified on any design. A suitability analysis should be carried out by the persons engaged to implement any design or plans.
  3. Supply & Planting
    (a) Every reasonable effort will be made to source best quality specimens.
    (b) The Contractor will plant in accordance with best horticultural practice.
    (c) The Contractor will provide instructions on how best to maintain any planting carried out.
  4. Relocating Plants
    If the Contractor is engaged to relocate plants as part of the Landscaping Works, the Contractor will undertake all such relocation to the appropriate horticultural standard. However, the Contractor does not guarantee the continued health and viability of the relocated plants.
  5. Contractor’s Plants Guarantee
    (a) Evergreen Trees: The Contractor will replace any evergreen trees supplied and planted by it, if found to be dead or dying within three months of planting (subject to clause 22.5(d) below).
    (b) Deciduous Trees: The Contractor will replace any deciduous trees supplied and planted by it, that does not ‘come into leaf’ during the first growing season following planting (subject to clause 22.5(d) below).
    (c) Shrubs: The Contractor does not guarantee the continued health and viability of any shrub. However, in the event of any shrub death during the first growing season following planting, the Contractor will assess on Site and may (at its sole discretion) replace the shrub at its cost (subject to clause 22.5(d) below).
    (d) Limitations of Guarantees: The guarantees in this clause 22.5 exclude plant death resulting from exposure to drought conditions, high winds, abnormal winter conditions, under-watering, over-watering, adverse soil conditions, over-fertilizing, pest or stock damage, or any other condition or act over which the Contractor has no control.

23. NEW LAWN INSTALLATION

  1. Winfield Landscapes shall install new lawns in strict accordance with the supplier’s installation process and standard horticultural practices.
  2. Upon completion of the installation, Winfield Landscapes shall bear no liability for any damage to the new lawns, including but not limited to damage arising from environmental factors, improper maintenance by the Client, or any other circumstances beyond the control of Winfield Landscapes.
  3. Winfield Landscapes will provide the Client with a written breakdown of maintenance guidelines to help ensure the proper care and longevity of the installed lawn. The Client is encouraged to follow these guidelines to promote the best possible outcome for the lawn.

24. TIMBER

  1. It must be remembered that timber is a natural product and will be subject to movement and weathering as it seasons. It is not uncommon for small splits to occur (called shakes) in timber when drying and warping if timber is allowed to dry too rapidly due to external temperatures. These will normally go back when the humidity rises. This may also include twisting and warping of timber. This is nature at work and should not be considered a fault or bad workmanship.