Terms of service

  1. SCOPE
    • Backyard Folly Limited (BFL) are in the business of creating and selling architecturally designed digital building plans for small and ancillary buildings (Plans).
    • BFL agrees to provide the Plans to the Customer (Customer) in consideration for payment of fees (Fees), and on the terms of these terms of trade (referred to both as Terms, and Agreement).
    • The Plans provided are digital only. BLF is not involved with the implementation of the plans, the creation of the buildings.

 

  1. CUSTOMER ACKNOWLEDGMENT
    • The Customer agrees and acknowledges that they are solely responsible for:
      • Carrying out any building works associated with the Plans.
      • Obtaining any local authority or other consent that may be required for any building works associated with the Plans (Consent).
      • Complying with any Consent and any law, including any local authority district plan, environmental law, governmental Consent, governmental requisition, public utility Consent and applicable industry code of conduct.
      • Ensuring that any Plans relating to a playground and/or a playhouse are strictly for personal use only. Commercial playgrounds have additional specification and requirements that are not included in the Plans.
    • BFL has no responsibility for any loss or lability caused if the Customer does not comply with 2.1 (a)-(d).

 

  1. COMPLIANCE
    • BFL confirms that the Plans provided will comply with the New Zealand Building Code as at the date of delivery of the Plans. The Customer acknowledges however that failure to follow the Plans, may result in the non-compliance with the Building Code which BFL takes no liability for.

 

  1. LIABILITY
    • BFL is not responsible for any loss incurred by the Customer if the Customer makes variations to or does not adhere to the Plans.
    • BFL cannot control the actions of the Customer, so to the maximum extent permitted at law BFL cannot be held liable for any accidents, damage or injuries that may arise with the Product from its use and any associated construction by the Customer.
    • BFL shall not have any liability or responsibility to the Customer for any loss which does not flow directly or naturally (i.e. in the ordinary course of things) from a breach of this Agreement. BFL shall only be liable for losses (excluding loss of business or profits) which flow directly or naturally from a breach of this Agreement up to a maximum of the amount paid by the Customer to BFL for the amount paid for the Plans.

 

  1. FEES AND PAYMENT
    • Unless otherwise agreed to in writing by BFL, all Fees will be payable in full and upfront before any Plans will be provided. If BFL elects to provide any Plans in advance of any Fees being paid, or any additional services, the Customer will pay those Fees immediately after being invoiced.
    • If the Customer fails to pay any amount due, BFL may without prejudice to its other rights require the Customer to pay interest on the amount due from the due date until the date of payment, at a rate equal to 2% per month, calculated daily (in addition to the Customer remaining liable for the full amount outstanding).
    • Any expenses, disbursements and legal costs incurred by BFL in the enforcement of any rights contained in these Terms shall be paid by the Customer, including any reasonable solicitors’ fees or debt collection agency fees.
    • All Fees noted in this Agreement are in New Zealand dollars and are GST exclusive unless stated otherwise.

 

  1. PROTECTION OF INTELLECTUAL PROPERTY
    • For the purposes of this agreement, Intellectual Property means all rights, including designs, specifications, plans, drawings, concepts, copyright, patents, trademarks, trade names, goodwill rights, trade secrets, confidential information and any other Intellectual Property or proprietary right in or relating to the Plans.
    • All Intellectual Property supplied or created under this agreement will be owned by BFL, and the Customer shall have no rights to reproduce, distribute, or sell the Plans themselves.
    • BFL provides a limited licence to the Customer, to allow the Customer to advertise or market that the building constructed in accordance with the Plans is a Backyard Folly This right shall no longer apply if the building constructed has been varied from the Plans in a way that is more than minor, or in a way that in BFL’s sole and unfettered discretion no longer meets BFL’s brand or internal design guidelines. 

 

  1. REFUNDS
    • All purchases are final, and BFL shall not be obliged to provide any refunds if any Plans are not used or if a Customer simply changes their mind.
    • If the Customer shall become entitled to a refund under any other provision of general law, such refund shall not exceed the total amount of any money actually received by BFL from the Customer.

 

  1. GENERAL
    • No amendment to these Terms will be effective unless it is in writing and signed by both parties.
    • No exercise or failure to exercise or delay in exercising any right or remedy by a party shall constitute a waiver by that party of that or any other right or remedy available to it.
    • Any provision of these terms that is illegal, invalid or unenforceable will be severed to the extent that it is illegal, invalid or unenforceable, with the remainder of the Terms continuing in full force.
    • The agreements, obligations and warranties contained in and created pursuant to these Terms shall not merge on completion of any transactions for Plans but shall remain in full force until satisfied.
    • Plans provided to all business Customers or for commercial purposes are expressly excluded from all provisions under Consumer Guarantees Act 1993.
    • These Terms and any agreement made pursuant to these Terms shall be governed by New Zealand law, and the parties submit to the non-exclusive jurisdiction of the courts of New Zealand.

 

  1. DISPUTE RESOLUTION
    • Where any dispute arises between the parties concerning this Agreement or the circumstances, representations, or conduct giving rise to the Agreement, no party may commence any court or arbitration proceedings relating to the dispute unless that party has complied with the procedures set out in this clause 9.
    • The party initiating the dispute (“the first party”) must provide written notice of the dispute to the other party (“the other party”) and nominate in that notice the first party’s representative for the negotiations. The other party must within seven (7) days of receipt of the notice give written notice to the first party, naming its representative for the negotiations.  Each representative nominated shall have authority to settle or resolve the dispute.
    • If the parties are unable to resolve the dispute by discussion and negotiation within 14 days of receipt of the written notice from the first party, then the parties must immediately refer the dispute to mediation.
    • The mediation must be conducted in terms of the LEADR New Zealand Inc Standard Mediation Agreement. The mediation must be conducted by a mediator at a fee agreed by the parties. Failing agreement between the parties, the mediator shall be selected and his or her fee determined by the Chair for the time being of LEADR New Zealand Inc.