Terms & Conditions

1. Definitions and Interpretation

1.1  Where used in these terms and conditions:

(a) "MTC" mean's MTC Property Management Ltd. with Registered Office at 20 Goodall Road, Snells Beach, 0920, Auckland, New Zealand. with Company Number 8387204.

(b) "Client" means the entity, company, firm, partnership or organization as defined in Schedule 1 that purchases products and or services from MTC.

(c) "Agreement" means these terms and conditions as updated from time to time and made available at MTC’s website located at the following link: terms.mtc.kiwi AND Schedules 1 and  2

(d) "Services" means the services MTC agrees to supply as defined in Schedule 2

(e) "Site" means the Client related property, or part thereof, located at the address indicated in Schedule 1

(f) "Commencement Date" means the date from which MTC shall deliver Services.

“Adjudication” has the meaning given to that term by the Construction Contracts Act 2002;

“Agreement” means this Landscaping Works Agreement including the Terms and Conditions, the Schedules and any other variations agreed under clause 7.2;

“Aspect” means a discrete part of the Landscape Works as identified in the Specifications;

“Business Day” means a day on which banks are open for business in Christchurch;

“Commencement Date” means the date on which the Client will provide access to the Site as specified in schedule 1;

“Contract Documents” means this Agreement and the documents referred to in and forming part of this Agreement;

“Contract Sum” means the amount stated in schedule 1 which is payable for the completion of the Landscaping Works subject to such adjustments as are provided for in the Contract Documents;

“Default Rate” means an interest rate of 1.5 times the monthly interest rate payable by the Contractor for overdraft facilities;

“Drawings” means all drawings set out in schedule 3 together with any modification of such drawings approved in writing by the Client;

“GST” means the goods and services tax applicable under the Goods and Services Tax Act 1985 (“GST Act”);

“Landscaping Works” means all the work to be executed in accordance with this Agreement and as more particularly set out in schedules 2 and 3;

“Site” means the land, buildings or other places made available by the Client to the Contractor for the purpose of carrying out the Landscaping Works; and

“Specifications” means the written description of works set out in schedule 2 together with any modifications of such specifications approved in writing by the Client.

1.2 In this Agreement unless the context otherwise requires:

(a) words importing any gender include every gender;

(b) words importing the singular number include the plural number and vice versa;

(c) words importing persons include firms, companies and corporations and vice versa;

(d) any obligation on any party not to do or omit to do anything is to include an obligation not to allow that thing to be done or omitted to be done;

(e) the table of contents, headings to the clauses and schedules of this Agreement are not to affect the interpretation;

(f) any reference to an enactment includes reference to that enactment as amended or replaced from time to time and to any subordinate legislation or bylaw made under that enactment; and

(g) the word "including" (and related forms including "includes") will be understood as meaning "including without limitation".

2. Introduction

Subject to the terms and conditions of this Agreement:

2.1 MTC undertakes to carry out the Services; and

2.2 the Client undertakes to accept and pay for the Services.

3. MTC's Responsibilities

3.1 MTC shall provide the labour, materials, transport and such other components specified in, or to be reasonably inferred from, the Services.

3.2 As far as is reasonable practicable, MTC shall deliver Services in a manner so as not to unreasonably disrupt users of the Site. 

3.3 MTC shall be entitled to place temporary warning signage, including road cones at appropriate locations on the Site whilst delivering Services. This temporary signage is intended to:

(a) alert site users to MTC's activity
(b) isolate any area of higher risk to prevent access by users of the Site that are not MTC staff
(c) provide a dedicated uninterrupted area for MTC staff to work 

3.4 MTC shall maintain public liability insurance for an appropriate sum.

3.5 All equipment and materials placed on the Site by MTC and not consumed within delivery of the Services remain MTC’s property. Upon completion of delivery of the Services, MTC will remove all such equipment and materials together with green waste directly caused by the delivery of Services.

3.6 MTC shall deliver the Services according to the timeframes outlined in Schedule 2 

4. Client Responsibilities

4.1 The Client warrants that:

(a) the Client is the owner, or is properly authorised by the owner, of the Site to carry out the Services on the Site

(b) the Client has appropriate third party (such as unit owner or tenants) consent for the delivery of the Services on the Site

(c) MTC shall be provided with free and unimpeded access to such areas of the Site as are necessary for delivery of the Services from the Commencement Date.

4.2 The Client shall ensure that, where other contractors are allowed access to the Site during the term of this Agreement, the Client shall ensure that such other contractors are co-ordinated to allow maximum continuity of, and minimum inconvenience and delay of, delivery of Services by MTC. The Client acknowledges that MTC shall have no responsibility for any contractor not subcontracted by MTC, and indemnifies MTC from and against any costs, losses, claims, expenses or damage MTC suffers as a result of any act or omission on the part of such contractors.

4.3 The Client acknowledges that if:

(a) MTC is not given access or is impeded from delivering Services due to activity of other site users and/or

(b) other contractors either; interfere with MTC's performance under this Agreement or cause alterations or damage to the Services delivered,

then MTC shall, without limiting or waiving the indemnity in clause 4.2, be entitled to a reasonable extension of time to complete the delivery of Services and/or to charge additional costs, having regard to the loss of time, interference or other costs or damage suffered.

5. Commencement

5.1 The Client shall give MTC access to the Site on the Commencement Date and MTC shall use all reasonable endeavours to commence delivery of Services within 5 Business Days of the later of the Commencement Date or the date on which access is granted. To this end, MTC shall advise the Client of any decision or instruction which needs to be made or given prior to MTC being able to proceed with delivering the Services.

6. Contract Sum and Payment

6.1 The Client shall pay MTC the Contract Sum in the manner, at the rate and at the times provided in Schedule 2.

6.2 The Contract Sum may be adjusted in accordance with clauses 6.1, 7.1 or 10.

6.3 Unless other conditions are stated in Schedule 2, MTC will invoice the Client for Services monthly for payment 20th of the following month. All payments must be made without deduction, withholding or set off.

6.4 Where any money owing under this Agreement is not paid by the due date, the Client shall pay:

(a) interest at the Default Rate on a monthly basis from the due date to the date of payment; and
(b) MTC's reasonable costs of recovering the debt.

6.5 All materials supplied by MTC including materials incorporated into the delivered Services shall remain the property of the MTC until the Contract Sum has been paid in full. MTC may enter the Site to dismantle any incorporated material component of the delivered Services if payment is not made in accordance with this Agreement.

6.6 If MTC, due to the Clients acceptance of an MTC quote, arranges or procures materials from a subcontractor or any other third party and the terms of the arrangements between MTC and the subcontractor or third party require payment by MTC, then MTC shall be entitled to request payment forthwith by the Client regardless of whether the work or materials are yet located on the Site.

6.7 All prices referred to in this Agreement are stated exclusive of GST. GST shall be payable at the then current rate applicable at the time of supply under the GST Act on each invoice based on the time the invoiced amount is due.

7. Variations

7.1 The Client may request modifications, amendments or additions to the Services at any reasonable time during the term of this Agreement, and MTC shall use all reasonable endeavours to comply with all such requests. 

(a) Where the Client’s request is to modify or amend existing agreed Services, the parties shall immediately negotiate in good faith to determine whether any such modifications or amendments are practicable and (where applicable) negotiate to agree upon an amended Contract Sum and consequential adjustment to any delivery timeframe, if applicable.
(b) Where the Client’s request is to add to existing agreed Services, MTC shall issue a new quotation for the Client to consider.
(c) Notwithstanding anything else in this Agreement, where quotations are denoted as estimated, work will be invoiced on a time and materials basis where that quotation is approved.

7.2 Where any modifications or amendments to the Landscaping Works are agreed between the parties in accordance with clause 7.1(a), they shall have agreement recorded in writing (including email) by both parties, whereupon they shall be deemed to be incorporated into this Agreement. No modifications or amendments shall be binding unless and until they are so written and agreed.

7.3 Where the parties do not reach agreement in accordance with clause 7.1(a), this Agreement shall remain unchanged and shall continue to be binding on both parties.

8. Unforeseen Difficulties

8.1 Where MTC encounters unforeseen difficulties in respect of the Site, including such matters as toxic materials, dumped rubbish, difficult tenant interactions, MTC shall immediately consult the Client and:

(a) the parties may negotiate to determine the extent of the additional work and/or time required, and any resulting variation to the Agreement; and
(b) both parties will endeavour in good faith to find solutions to the unforeseen difficulties

9. Plants

9.1 As natural growing matter, the health of plants (including grasses, trees and shrubs) is influenced by many factors outside MTC's control. 

9.2 For the avoidance of doubt, whilst MTC will use all reasonable care, MTC does not guarantee the continued health and viability of plants (including grasses, trees and shrubs) 

10. Liability

10.1 MTC’s liability under this Agreement shall not exceed the six monthly payments of the monthly Contract Sum. MTC shall not be liable for any indirect or consequential damage or loss.

11. Termination

11.1 An event of default under these terms occurs if:

(a) the Client fails to pay MTC any amounts owing within 20 Business Days of the due date for payment;
(b) either party breaches its obligations under these terms and, where that breach is capable of remedy, fail to remedy it within 5 Business Days of becoming aware of it; or
(c) either party becomes insolvent, bankrupt or unable to pay its debts as they fall due.

11.2 If MTC commits an event of default, the Client may terminate the Agreement without prejudice to either party’s rights and remedies under this Agreement.

11.3 If the Client commits an event of default, MTC may, without prejudice to any other rights MTC may have, take any or all of the following actions at its sole discretion:

(a) suspend the carrying out of Services until further notice;
(b) require the Client to pay the costs of remedying any breach of this Agreement;
(c) terminate this Agreement without prejudice to either party’s rights and remedies under this Agreement; and/or
(d) require the Client to pay all costs and expenses incurred as a consequence of termination or suspension.

11.4 If this Agreement is terminated prior to its full completion, including without limitation under clauses 2.2(b), 7.1(b) or 14 then, in addition to any payments due and owing by the Client to MTC in terms of those provisions, the Client shall also reimburse the Contractor for:

(a) any out of pocket expenses or advance payments made by MTC for goods or services to third parties which are in respect of the Services carried out or to be carried out; and
(b) any of MTC's own costs for planning, designing or administering the Services which have not been paid and which relate to either works already carried out or yet to be carried out.

12. Dispute Resolution

12.2 If any dispute arises between the Client and the Contractor as to any matter or thing arising in connection with this Agreement the parties shall refer the matter to Adjudication.

13. Consumer Guarentees

13.1 If the Client is a business, the Client is deemed to have acknowledged that the supply of goods and services under this Agreement is a supply for business purposes and that the Consumer Guarantees Act 1993 shall not apply. Nothing in this Agreement is intended to limit the rights of a consumer under the Consumer Guarantees Act 1993.