TERMS OF SERVICE  

In these Terms of Service we have used "we", "us", and "our" to refer to Vertical Contract Climbing Limited T/A Vertical Arborists and "you" to refer to our Customers. “Services” refers to any services we agree to provide for you. By requesting Services from us, you agree to these Terms of Service to the exclusion of any of your terms and conditions. These Terms of Service will apply to all Services we provide for you from time to time (except where agreed in writing otherwise).

1. No obligation to accept requests for Services

1.1 Any request for Services will for all purposes be deemed to be acceptance by you of these Terms of Service.

1.2 At no time will we be obliged to accept any request to perform Services for you and we reserve the right to refuse any request from you at any time.

1.3 We may also, at our discretion, impose further terms and conditions prior to undertaking any Services for you. These may include, but are not limited to, your directors or shareholders giving a personal guarantee for you to secure our costs or our requiring you give us some further security for our costs.

2. What are our fees?

2.1 We may agree to perform Services (or part of any Services) for a fixed or set fee (“a Fixed Fee”). In such case the following will apply:

(a) The Fixed Fee will be agreed by us in writing, such documentation to include a description of the scope of Services for which the Fixed Fee is to be charged;

(b) Unless stated otherwise all fees are GST exclusive.

(c) All Services outside the scope of the Fixed Fee will be charged as an additional cost to be determined in accordance with these terms; and

(d) If, for reasons outside our control, the Services is not or cannot be completed, the Fixed Fee will remain payable by you.

2.2 In all other cases, all costs for Services will be calculated in accordance with clause 3 below.

3. How will other fees be calculated?

3.1 Subject to clause 2 above, any cost indication we give you for Services is an estimate ("the Estimate") on a plus GST basis of the anticipated cost for us to complete that Services.

3.2 Notwithstanding any Estimate given, unless we have explicitly agreed in writing to be bound by a fixed price under clause 2, you shall pay to us our actual cost of completing the Services ("the Actual Cost") which will be calculated by totalling the following:

(a) The number of hours of service multiplied by the hourly rates for the Services involved (which may be

adjusted for such matters as complexity, urgency, importance or specialised knowledge;

(b) Any disbursements incurred by us on your behalf;

(c) The cost of any goods supplied by us as part of the Services.

3.3 We will provide you with the hourly rate of the Services on request.

3.4 The Actual Cost and all prices are plus GST and other taxes.

3.5 Disbursements incurred by us on your behalf may include a reasonable mark-up by us.

3.6 In the event our engagement with you is terminated prior to completion of the Services, you must immediately pay us the Actual Cost at the termination date.

4. Who is liable for our fees?

4.1 Invoices for our costs will be sent to and are payable by the party named on the invoice and/or as instructed by you to be the client as the "instructing party" responsible for payment of the invoices.

4.2 The instructing party must be recognised as a legal entity, such as an individual (whether a sole trader or not)or company.

4.3 Where the instructing party is a company is yet to be formed, the instructing party is the individual instructing the matter in the first instance and that person shall remain the instructing party until such time as the advised company is incorporated. Where the party is a partnership, the names of the partners shall be incorporated by reference to one or more; and the partners agree they are jointly and severally liable for the work carried out and instructed on behalf of the partnership by any one or more of the partners.

5. How will you make payments?

5.1 We may require you to pay a deposit, being an advance payment for the Services, before we commence the Services. The amount of the deposit will be set at our discretion.

5.2 Payment for the Services (and any associated expenses and disbursements) is within 7 days following the date of our invoice except where we have agreed in writing that other terms shall apply ("the Due Date").

5.3 If you do not make payment on the Due Date, you are in default and must pay default interest at the rate of 16% per annum, which shall accrue on a daily basis on the total amount outstanding from the Due Date to the date of payment in full.

5.4 Notwithstanding the above, if payment is outstanding for 7 days from the Due Date, we may suspend performing the Services on credit until the date of payment in full. You must pay through internet banking, cash or cheques for any Services done by us until payment is made in full (together with any accrued interest).

5.5 We may notify you at any time that we have ceased to carry out the Services on credit. This cessation does not relieve you for amounts owing up to the date on which the contract is terminated.

5.6 Payment of all money shall be without set-off or deduction of any kind.

5.7 We will apportion payments to outstanding accounts as we think fit.

6. How will the Services be performed?

6.1 We will:

(a) Perform the Services with reasonable skill, care and diligence in a professional manner;

(b) Endeavour to ensure that the Services is performed in accordance with any timeframes agreed in writing with you (subject to clause 6.3 below and any commitments to other customers); and

(c) Liaise with you during the course of performing the Services in accordance with your reasonable requirements.

6.2 We may delegate or subcontract our obligations relating to the Services to subcontractors. The subcontracting of any Services will not relieve us of any obligation or liability to you and we will remain responsible for all Services performed by our subcontractors.

6.3 You will give reasonable assistance to enable us to perform the

Services by:

(a) Giving clear instructions;

(b) Promptly providing any information required from you for us to complete the Services;

(c) Ensuring all information given to us by you is accurate and complete;

(d) Notifying us of any potential hazards on your property that may pose a risk to our employees or equipment;

(e) Obtaining any necessary consents at your own cost;

(f) Complying with any Health & Safety protocols we have and otherwise complying with our reasonable directions while we carry out the Services.

6.4 If we have given you a timeframe for completion of the Services, unless agreed in writing to the contrary, such time frame is approximate only and is not deemed to be of the essence of the contract.

7. Exclusions

7.1 Unless agreed otherwise, our Services exclude:

(a) “Investigatory services”; and

(b) Taxation advice of any nature.

8. What is our liability to you?

8.1 The Consumer Guarantees Act 1993, the Fair Trading Act 1986, and other statutes may impose warranties, conditions or obligations upon us which cannot by law (or which can only to a limited extent by law) be excluded. We exclude all such imposed warranties, conditions or obligations to the extent permitted by law and exclude any warranty, condition or obligation imposed or implied under common law, equity or otherwise.

8.2 The guarantees contained in the Consumer Guarantees Act 1993 are excluded where you acquire Services and/or goods from us for the purposes of a business in terms of sections 2 and 43 of that Act.

8.3 Except to the extent that the law prevents us from excluding liability and as expressly provided for in these terms, we shall not be liable for any loss or damage or liability of any kind whatsoever (including consequential loss or lost profit or business) whether suffered or incurred by you or another person and whether in contract, or tort (including in negligence), or otherwise and whether such loss or damage arises directly or indirectly from Services or goods provided by us to you.

8.4 You shall indemnify us against all claims and loss of any kind whatsoever however caused or arising which is brought by any person in connection with any matter, act, omission, or error by us, our agents or employees in connection with the Services.

8.5 To the extent that we are liable for any reason for any loss suffered or liability incurred by you arising from any breach of these Terms of Service or for any other reason, such liability is limited to the amount of the Actual Cost. If you make a claim in writing to us in relation to the Services, we may, in our discretion, repair or re-perform the Services, or refund the amount of those goods or services to you, provided that:

(a) The claim must be made in writing to us within fourteen (14) days of the goods or services being

provided; and

(b) You must supply the date and number of any invoice relating to the Services; and

(c) We must have a reasonable opportunity to inspect the Services.

8.6 Without limiting any other disclaimer or limitation of our liability, you expressly acknowledge that we are not responsible for any pipes or cables located on your property (underground services). We will have no liability to you for unintentional damage to any underground services that occurs on your property in connection with Services done by us and you indemnify us against any claim by any third party in respect of such damage.

9. What may we do with your information?

9.1 You authorise us:

(a) To collect, retain and use information about you from any person for the purpose of assessing your

creditworthiness;

(b) To disclose information about you:

(i) To any person who guarantees, or who provides insurance, or who provides any other credit support, in relation to your obligations to us;

(ii) To such persons as may be necessary or desirable to enable us to exercise any power or enforce or attempt to enforce any of our rights, remedies and powers under these Terms of Service.

9.2 Details of our privacy policy may be found on our website, www.verticalarborists.co.nz which may be updated from time to time.

10. How will disputes be resolved?

10.1 The parties agree that any dispute that arises in connection with these Terms of Service will be resolved in the Disputes Tribunal of New Zealand to the extent that the Tribunal has authority to deal with the matter.

10.2 Pending resolution of any dispute you agree to continue at all times to meet your payment obligations under clause 5 above, provided that a disputed amount on an invoice may be withheld only to the extent of the dispute.

11. Circumstances beyond our control

11.1 We shall not be liable for delay or failure to perform the Services if the cause of delay or failure is beyond our control. This includes, but is not limited to, weather conditions that delay or prevent completion of the Services within any timeframes given to you.

12. Termination

12.1 Either party may terminate these Terms of Service at any time by notice in writing. If you terminate these Terms of Service then you will remain liable for the payment of:

(a) All fees and costs incurred up until the time of termination; and

(b) Any Fixed Fee for Services already commenced, which will be deemed to become due and owing immediately.

13. What will happen if you default?

13.1 You will have committed an “Event of Default” if:

(a) You fail to pay any money owing on the Due Date;

(b) We believe you have committed or will commit an act of bankruptcy, have had or are about to have a receiver or liquidator appointed, or are declared insolvent;

(c) You neglect or fail to carry on your business to our reasonable satisfaction, or if there is a significant deterioration in your trading or asset position;

(d) You are otherwise in breach of your obligations under these Terms of Service.

13.2 If an Event of Default occurs then, in addition to any remedies we may have at law, we may do one or more of the following:

(a) Charge default interest;

(b) Refer any unpaid amounts to a debt collection agency

(all costs of which will be your responsibility);

(c) Suspend the Services; and

(d) Immediately terminate these Terms of Service by notice in writing to you.

14. General Terms

14.1 Our agreement is with you and, unless agreed otherwise, not with any other person. Before any other person may rely on our advice, we must expressly agree to this. You agree to not use our Services or advice other than for the purpose for which they were sought.

14.2 When visiting your place of business, we will be entitled to assume that any person who gives us directions or instructions to us is entitled to do so except where you have expressly advised us otherwise.

14.3 Any notice may be given by phone, in person, post or email to you (or where you are a company, to any of your directors) to your last known place of business or any address of which we have been notified by you or which can be found in any publicly searchable register.

14.4 We shall be entitled at any time by notice in writing to you to vary any provision of these Terms of Service and you shall be bound by such variation.

14.5 You shall at all times treat as confidential all non-public information and material received from us and shall not publish, release, or disclose the same without our prior written consent. For clarity, confidential information includes any new Intellectual Property and prices.

14.6 You must pay our costs (including legal costs, as between solicitor and client) of and incidental to the enforcement or attempted enforcement of our rights, remedies and powers under these Terms of Service.

14.7 You consent to us and any financier or credit-rating agency making enquiries of and obtaining any information about your financial standing and creditworthiness.

14.8 This agreement constitutes the entire agreement between the parties as to its subject matter and supersedes and cancels any previous agreement, understanding or arrangement whether written or oral.

15. Definitions

15.1 In these Terms of Service:

(a) "Intellectual Property" includes all intellectual property rights (including without limitation copyright, patent and design rights, drawings, documents, data, ideas, procedures and calculations).

(b) "Services" means but is not limited to tree planting, pruning, stump grinding and removal and such other related services as may be requested from time to time and the production or supply of any goods by us as part of or related to such services.

15.2 The rule of construction known as the contra proferentem rule does not apply to these Terms of Service.

15.3 Words importing the singular include the plural and vice versa.

15.4 Headings are for convenience only and do not form part of, or affect the interpretation of, these Terms of Service.

15.5 References to a party include that party's successors, personal representatives, executors, administrators and permitted assigns.

15.6 References to a statute include references to:

(a) Regulations, orders, rules or notices made pursuant to that statute;

(b) All amendments to that statute and those regulations, orders, rules or notices, whether by subsequent statute or otherwise; and

(c) Any statute passed in substitution of that statute.

15.7 References to "us" include our employees, contractors and agents.

3475-3391-2860-V1 [428533]