- 1.1. You are taken to have accepted these Terms when you order a Document Package from our Website and make payment of the Price.
- 1.2. Please read these Terms carefully and contact us if you have any questions.
2. Your use of the Document Package
- 2.1. You must only use the Document Package for the purposes of building the Dwelling for you personally, or by your builder. You must not use the Document Package for any other purposes (commercial or otherwise).
- 2.2. It is your (and your Personnel’s) responsibility to (at your cost):
- (a) Obtain any Approvals from any Authority required in relation to the construction of the Dwelling.
- (b) Construct the Dwelling and obtain a Code of Compliance Certificate from the relevant Authority on completion of the construction of the Dwelling (if required).
- (c) Verify the dimensions and details of the Dwelling are appropriate for the proposed site.
- (d) Ensure the onsite drainage levels comply with the requirements of the relevant Authority.
- (e) Ensure that all boundary setbacks and building recession and cladding lines comply with the requirements of the relevant Authority.
- (f) Where vegetation is removed from the site, check all site levels and heights with the finished floor levels of the Dwelling.
- (g) Ensure the Dwelling and any materials used in it are constructed or used in accordance with the Document Package, any manufacturer instructions or requirements and all applicable Laws.
- (h) Ensure on-site health and safety at all times during the construction of the Dwelling.
- (i) Ensure the finished Dwelling is structurally sound and weathertight.
- (j) Effect and maintain any insurances in relation to the Dwelling (including during the construction of it).
- 2.3. You are responsible for the acts or omissions, and any goods or services provided by your Personnel.
- 3.1. You acknowledge and agree that we continue to own the copyright in the Plans and by purchasing the Document Package, we provide a limited, non-exclusive, non-sub-licensable and non-transferable licence to use the Plans in the Document Package for the purposes of constructing the Dwelling only.
- 4.1. If you make any variations to the Plans or materials used in the Dwelling (each, a Variation), such Variation is at your sole risk. You are entirely responsible for, at your cost, obtaining any required Approvals in relation to a Variation and for the outcome and finished look of any Variations.
5. Warranties and Representations
- 5.1. You warrant represent and agree that:
- (a) you have full legal capacity, right, authority and power to enter into these Terms, to perform your obligations under these Terms, and to carry on your business;
- (b) that these Terms constitute a legal, valid and binding agreement, enforceable in accordance with their terms;
- (c) if applicable, you are registered for GST purposes;
- (d) you have not relied on any representations or warranties made by us in relation to the Document Package (including as to whether the Document Package is or will be fit or suitable for your particular purposes), unless expressly stipulated in these Terms;
- (e) you agree that we do not provide any warranty against defects in the Document Package;
- (f) you will cooperate with us, and promptly provide us with all documentation, information, instructions, facilities and access as reasonably required by us;
- (g) the information you provide to us is true, correct and complete;
- (h) you will not infringe any third party rights in carrying out your obligations under these Terms;
- (i) we aim to display the colours, design and dimension of the Dwelling as accurately as possible, however, they can appear slightly different on your screen or device. To the maximum extent permitted by law, we do not warrant that the appearance of the Dwelling on your screen or device is accurate, complete, reliable, error-free or as it appears in real life;
- (j) you will ensure that the site is safe and free of harmful materials or substances.
6. New Zealand Consumer Law
- 6.1. If you are a consumer (as that term is defined in the Consumer Guarantees Act 1993 (CGA)):
- (a) Nothing in this clause affects any rights you have under the CGA.
- (b) We do not accept returns or provide refunds for changes of mind in relation to the Document Package, or other circumstances.
- (c) To the maximum extent permitted by law, our obligations to you for any defects in the Document Package is limited to the remedies you have available under the CGA.
- 6.2. If you are in trade (as that term is defined in the CGA):
- (a) To the maximum extent permitted by law, the provisions of the CGA do not apply and we exclude all express and implied warranties, representations and guarantees of any kind (whether under statute, Law, equity or on any other basis) and the Document Package is provided to you without warranties, representations and guarantees of any kind.
- (b) The Parties agree that it is fair and reasonable that they are bound by this clause 6.
7. Delivery, Title and Risk
- 7.1. Title in the Document Package will remain with us until the Price is paid in full.
- 7.2. Risk in the Document Package will pass to you on delivery of the Document Package to you.
- 8.1. Exclusions: Despite anything to the contrary, to the maximum extent permitted by law, we will not be liable for, and you waive and release us from and against, any Liability caused or contributed to by (whether directly or indirectly):
- (a) acts or omissions of you or Your Personnel;
- (c) any information, documentation, specifications or directions given by you or your Personnel;
- (d) Your Items;
- (e) your use of the Document Package;
- (f) the materials used in the Dwelling;
- (g) the finished look of the Dwelling;
- (h) any Variations;
- (i) any Approvals (whether obtained or not) or the requirements of any Authority;
- (j) failing to comply with Document Package, any manufacturer instructions or requirements and all applicable Laws; and
- (k) any event or circumstance beyond our reasonable control.
- 8.2. Indemnity: Despite anything to the contrary, to the maximum extent permitted by law, you are liable for, and agree to make good, indemnify us and hold us harmless in respect of, any Liability that we may suffer, incur or otherwise become liable for, arising from or in connection with
- (a) acts or omissions of you or Your Personnel;
- (b) any information, documentation, specifications or directions given by you or your Personnel;
- (c) any breach of third party Intellectual Property Rights;
- (d) your use of the Document Package;
- (e) the finished look of the Dwelling;
- (f) the materials used in the Dwelling;
- (g) any Variations;
- (h) any Approvals (whether obtained or not) or the requirements of any Authority;\
- (i) Your Items.
- 8.3. Limitation of liability: Despite anything to the contrary, to the maximum extent permitted by law:
- (a) neither Party will be liable for any Consequential Loss;
- (b) our maximum aggregate liability for any and all Liabilities arising from or in connection with the Document Package will be limited to us resupplying the Document Package or, in our sole discretion, to repaying you the amount of the Price paid by you to us in respect of the provision of the Document Package, to which the Liability relates;
- (c) a Party’s liability for any Liability under, arising from, or in connection with, these Terms will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the acts or omissions of the other Party (including a failure to take reasonable steps to mitigate the relevant Liability); and
- (d) we will not be liable for, and you waive and release us from and against, any Liability caused or contributed to by any loss or damage which is the inevitable and unavoidable part of performing the Document Package.
9. Intellectual Property
- 9.1. As between the Parties:
- (a) we own all Intellectual Property Rights in Our Materials; and
- (b) nothing in these Terms constitutes a transfer or assignment of any Intellectual Property Rights in Our Materials.
- 9.2. As between the Parties, ownership of all Intellectual Property Rights in any New Materials or Improvements will at all times vest, or remain vested, in us upon creation. To the extent that ownership of such Intellectual Property Rights in any New Materials and/or Improvements do not automatically vest in us, you agree to do all things necessary or desirable to assure our title in such rights.
- 9.3. You grant us a non-exclusive, revocable, worldwide, non-sub licensable and non-transferable right and licence, to use your or your Personnel’s Intellectual Property that you provide to us for any purpose reasonably contemplated by these Terms, including in order to promote our business, whether online or on digital or print or social media.
- 9.4. Except for the inclusion of the plans showing the layout of the Dwelling and an artist’s impression of the finished Dwelling where you build it to on-sell, you must not reproduce, retransmit, distribute, display disseminate, sell, broadcast or circulate any of Our Materials to any third party.
- 9.5. If you or any of your Personnel have any Moral Rights in any material provided, used or prepared in connection with these Terms, you agree to (and agree to ensure that your Personnel) consent to our use or infringement of those Moral Rights.
- 9.6. This clause 9 will survive the termination or expiry of these Terms.
- 10.2. Disputes: A Party may not commence court proceedings relating to any dispute, controversy or claim arising from, or in connection with, these Terms (including any question regarding its existence, validity or termination) (Dispute) without first meeting with a senior representative of the other Party to seek (in good faith) to resolve the Dispute. If the Parties cannot agree how to resolve the Dispute at that initial meeting, either Party may refer the matter to a mediator. If the Parties cannot agree on who the mediator should be, either Party may ask the New Zealand Law Society to appoint a mediator. The mediator will decide the time, place and rules for mediation. The Parties agree to attend the mediation in good faith, to seek to resolve the Dispute. The costs of the mediation will be shared equally between the Parties. Nothing in this clause will operate to prevent a Party from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction.
- 10.3. Email: You agree that we are able to send electronic mail to you and receive electronic mail from you. To the maximum extent permitted by law, you release us from any Liability you may have as a result of any unauthorised copying, recording, reading or interference with that document or information after transmission, for any delay or non-delivery of any document or information and for any damage caused to your system or any files by a transfer.
- 10.5. Governing law: These Terms are governed by the laws of New Zealand. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in New Zealand and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.
- 10.6. Joint and Several Liability: Where you constitute two or more individuals or entities, you will each be jointly and severally liable under these Terms.
- 10.7. Notices: Any notice given under these Terms must be in writing addressed to the relevant address last notified by the recipient to the Parties. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission by email.
- 10.8. Publicity: You agree that we may advertise or publicise the broad nature of our provision of the Document Package to you, including on our website or in our promotional material.
- 10.9. Privacy: Each Party agrees to comply with the legal requirements of the New Zealand Privacy Principles as set out in the Privacy Act 2020 and any other applicable legislation or privacy guidelines.
- 10.10. Relationship of Parties: These Terms are not intended to create a partnership, joint venture, employment or agency relationship between the Parties.
- 10.11. Severance: If any provision (or part of it) under these Terms is held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from these Terms without affecting the validity or enforceability of the remainder of that provision or the other provisions in these Terms.
- 10.12. Survival: Each clause, which by its nature survives termination, will survive the termination or expiry of these Terms.
11. Interpretation & Definitions
- 11.1. In these Terms, unless the context otherwise requires:
- (a) a reference to these Terms or any other document includes the document, all schedules and all annexes as novated, amended, supplemented, varied or replaced from time to time;
- (b) a reference to any legislation or law includes subordinate legislation or law and all amendments, consolidations, replacements or re-enactments from time to time;
- (c) a reference to a natural person includes a body corporate, partnership, joint venture, association, government or statutory body or authority or other legal entity and vice versa;
- (d) no clause will be interpreted to the disadvantage of a Party merely because that Party drafted the clause or would otherwise benefit from it;
- (e) a reference to a party (including a Party) to a document includes that party’s executors, administrators, successors, permitted assigns and persons substituted by novation from time to time;
- (f) a reference to a covenant, obligation or agreement of two or more persons binds or benefits them jointly and severally;
- (g) words like including and for example are not words of limitation;
- (h) a reference to time is to local time in New Zealand; and
- (i) a reference to $ or dollars refers to the currency of New Zealand from time to time.
- 11.2. In these Terms, unless the context otherwise requires:
Approval means any approval, consent (including any resource consents and/or building consents), licence, permit, permission, application, registration or equivalent required to be obtained in connection with the Document Package and/or the construction of the Dwelling by any Authority or any Law.
Authority means any national or local government departments, bodies, instrumentalities or other public authorities the approval of which is applicable to or necessary in relation to the Document Package and/or the construction of the Dwelling.
Consequential Loss includes any consequential loss, indirect loss, real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise. The Parties acknowledge and agree that your obligation to pay us the Price under these Terms will not constitute “Consequential Loss” for the purposes of this definition.
Document Package means the document package, including the Plans, created by us and purchased by you from our Website.
Dwelling means the residential tiny home to be constructed as specified in a Document Package.
Improvements means any development, modification, adaptation or improvement of Our Materials or any New Materials made by or on behalf of either Party (or any of their respective Personnel), or in respect of which Intellectual Property Rights are acquired by, either Party during the Term.
Intellectual Property means any copyright, registered or unregistered designs, patents or trade marks, domain names, know-how, inventions, processes, trade secrets or confidential information; or circuit layouts, software, computer programs, databases or source codes, including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing.
Intellectual Property Rights means for the duration of the rights in any part of the world, any industrial or intellectual property rights, whether registrable or not, including in respect of Intellectual Property.
Laws means all applicable laws, regulations, codes, guidelines, policies, protocols, consents, approvals, permits and licences, and any requirements or directions given by any person with the authority to bind the relevant Party in connection with this Agreement or the provision of the Document Package.
Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, un-ascertained, future or contingent and whether involving a third party, a Party to these Terms or otherwise.
Moral Rights has the meaning given in the Copyright Act 1994.
New Materials means all Intellectual Property developed, adapted, modified or created by or on behalf of us or you or any of your Personnel or our Personnel in connection with these Terms or the provision of the Document Package, whether before or after the date of these Terms, but excludes Our Materials.
Our Materials means the Document Package, all work, models, processes, technologies, strategies, materials, information, documentation and services that we may provide to you under these Terms, and which may contain material which is owned by or licensed to us, and is protected by New Zealand and international laws.
Personnel means, in respect of a Party, any of its employees, consultants, suppliers, builders, subcontractors or agents, but in respect of you, does not include us.
Plans means the tiny home floor plans contained in the Document Package.
Price means the price set out on the Website for the Document Package.
Website means www.cocoontinyhomes.nz or such other website through which we sell Document Packages from time to time.