our Terms of Trade
1.1 DMI shall mean DMI Plumbing Limited its successors and assigns or any person acting on behalf of and with the authority of DMI Plumbing Limited.
1.2 Client shall mean the Client (or any person acting on behalf of and with the authority of the Client) as described on any quotation, work authorisation or other form as provided by DMI to the Client.
1.3 Guarantor shall mean that person (or persons) who agrees to be liable for the debts of the Client on a principal debtor basis.
1.4 Goods shall mean all Goods supplied by DMI to the Client (and where the context so permits shall include any supply of Services as hereinafter defined) and includes Goods described on any invoices, quotation, work authorisation or any other forms as provided by DMI to the Client.
1.5 Services shall mean all services supplied by DMI to the Client and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).
1.6 Price shall mean the price payable for the Goods as agreed between DMI and the Client in accordance with clause 3 of this contract.
2.1 Any instructions received by DMI from the Client for the supply of Goods and/or the Clients acceptance of Goods supplied by DMI shall constitute acceptance of the terms and conditions contained herein.
2.2 Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all payments of the Price.
2.3 Upon acceptance of these terms and conditions by the Client the terms and conditions are binding and can only be amended with the written consent of DMI.
2.4 The Client shall give DMI not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client or any change in the Clients name and/or any other change in the Clients details (including but not limited to, changes in the Clients address, facsimile number, or business practice). The Client shall be liable for any loss incurred by DMI as a result of the Clients failure to comply with this clause.
2.5 Goods are supplied by DMI only on the terms and conditions of trade herein to the exclusion of anything to the contrary in the terms of the Clients order notwithstanding that any such order is placed on terms that purport to override these terms and conditions of trade.
3. Price And Payment
3.1 At DMIs sole discretion the Price shall be either: (a) as indicated on invoices provided by DMI to the Client in respect of Goods supplied; or (b) DMIs quoted Price (subject to clause 3.2) which shall be binding upon DMI provided that the Client shall accept DMIs quotation in writing within thirty (30) days.
3.2 DMI reserves the right to change the Price in the event of a variation to DMIs quotation.
3.3 At DMIs sole discretion a deposit may be required.
3.4 At DMIs sole discretion: (a) payment for approved Clients shall be made by instalments in accordance with DMIs payment schedule; or (b) payment for approved Clients shall be due twenty (20) days following the end of the month in which a statement is posted to the Clients address or address for notices.
3.5 Time for payment for the Goods shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due seven (7) days following the date of the invoice.
3.6 Payment will be made by cash, or by cheque, or by bank cheque, or by direct credit, or by any other method as agreed to between the Client and DMI.
3.7 GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.
4. Delivery Of Goods
4.1 At DMIs sole discretion delivery of the Goods shall take place when the Client takes possession of the Goods at the Clients nominated address (in the event that the Goods are delivered by DMI or DMIs nominated carrier).
4.2 At DMIs sole discretion the costs of delivery are included in the Price.
4.3 The Client shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. In the event that the Client is unable to take delivery of the Goods as arranged then DMI shall be entitled to charge a reasonable fee for redelivery.
4.4 Delivery of the Goods to a third party nominated by the Client is deemed to be delivery to the Client for the purposes of this agreement.
4.5 The failure of DMI to deliver shall not entitle either party to treat this contract as repudiated.
4.6 DMI shall not be liable for any loss or damage whatsoever due to failure by DMI to deliver the Goods (or any of them) promptly or at all, where due to circumstances beyond the control of DMI.
5.1 If DMI retains ownership of the Goods nonetheless, all risk for the Goods passes to the Client on delivery.
5.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, DMI is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by DMI is sufficient evidence of DMIs rights to receive the insurance proceeds without the need for any person dealing with DMI to make further enquiries.
5.3 The Client acknowledges and agrees that the presence of plant/tree root growth and/or blockages generally indicates damaged pipes. Accordingly the Client agrees that these pipes cannot be fixed by simply removing plant/tree root growth or cleaning the drain, therefore no warranty is provided against this situation arising again in the future and in respect of any work carried out in relation thereto.
6.1 The Client shall ensure that DMI has clear and free access to the work site at all times to enable them to undertake the works. DMI shall not be liable for any loss or damage to the site (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of DMI.
7. Underground Locations
7.1 Prior to DMI commencing any work the Client must advise DMI of the precise location of all underground services on the site and clearly mark the same. The underground mains & services the Client must identify include, but are not limited to, electrical services, gas services, sewer services, pumping services, sewer connections, sewer sludge mains, water mains, irrigation pipes, telephone cables, fibre optic cables, oil pumping mains, and any other services that may be on site.
7.2 Whilst DMI will take all care to avoid damage to any underground services the Client agrees to indemnify DMI in respect of all and any liability claims, loss, damage, costs and fines as a result of damage to services not precisely located and notified as per clause 7.1.
8.1 DMI and Client agree that ownership of the Goods shall not pass until:
(a) the Client has paid DMI all amounts owing for the particular Goods; and
(b) the Client has met all other obligations due by the Client to DMI in respect of all contracts between DMI and the Client.
8.2 Receipt by DMI of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then DMIs ownership or rights in respect of the Goods shall continue.
8.3 It is further agreed that:
(a) where practicable the Goods shall be kept separate and identifiable until DMI shall have received payment and all other obligations of the Client are met; and
(b) until such time as ownership of the Goods shall pass from DMI to the Client DMI may give notice in writing to the Client to return the Goods or any of them to DMI. Upon such notice being given the rights of the Client to obtain ownership or any other interest in the Goods shall cease; and
(c) the Client is only a bailee of the Goods and until such time as DMI has received payment in full for the Goods then the Client shall hold any proceeds from the sale or disposal of the Goods, up to and including the amount the Client owes to DMI for the Goods, on trust for DMI; and
(d) until such time that ownership in the Goods passes to the Client, if the Goods are converted into other products, the parties agree that DMI will be the owner of the end products; and
(e) if the Client fails to return the Goods to DMI then DMI or DMIs agent may (as the invitee of the Client) enter upon and into land and premises owned, occupied or used by the Client, or any premises where the Goods are situated and take possession of the Goods, and DMI will not be liable for any reasonable loss or damage suffered as a result of any action by DMI under this clause.
9. Personal Property Securities Act 1999 (PPSA)
9.1 Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that:
(a) these terms and conditions constitute a security agreement for the purposes of the PPSA; and
(b) a security interest is taken in all Goods previously supplied by DMI to the Client (if any) and all Goods that will be supplied in the future by DMI to the Client.
9.2 The Client undertakes to:
(a) sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which DMI may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
(b) indemnify, and upon demand reimburse, DMI for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Goods charged thereby;
(c) not register a financing change statement or a change demand without the prior written consent of DMI; and
(d) immediately advise DMI of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
9.3 DMI and the Client agree that nothing in sections 114(1)
(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
9.4 The Client waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
9.5 Unless otherwise agreed to in writing by DMI, the Client waives its right to receive a verification statement in accordance with section 148 of the PPSA.
9.6 The Client shall unconditionally ratify any actions taken by DMI under clauses 9.1 to 9.5.
10.1 The Client shall inspect the Goods on delivery and shall within seven (7) days of delivery (time being of the essence) notify DMI of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford DMI an opportunity to inspect the Goods within a reasonable time following delivery if the Client believes the Goods are defective in any way. If the Client shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which DMI has agreed in writing that the Client is entitled to reject, DMIs liability is limited to either (at DMIs discretion) replacing the Goods or repairing the Goods.
10.2 Goods will not be accepted for return other than in accordance with 10.1 above.
11.1 For Goods not manufactured by DMI, the warranty shall be the current warranty provided by the manufacturer of the Goods. DMI shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Goods.
12. Consumer Guarantees Act 1993
12.1 If the Client is acquiring Goods for the purposes of a trade or business, the Client acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of Goods by DMI to the Client.
13. Default & Consequences Of Default
13.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at DMIs sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
13.2 In the event that the Clients payment is dishonoured for any reason the Client shall be liable for any dishonour fees incurred by DMI.
13.3 If the Client defaults in payment of any invoice when due, the Client shall indemnify DMI from and against all costs and disbursements incurred by DMI in pursuing the debt including legal costs on a solicitor and own client basis and DMIs collection agency costs.
13.4 Without prejudice to any other remedies DMI may have, if at any time the Client is in breach of any obligation (including those relating to payment) DMI may suspend or terminate the supply of Goods to the Client and any of its other obligations under the terms and conditions. DMI will not be liable to the Client for any loss or damage the Client suffers because DMI has exercised its rights under this clause.
13.5 If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten percent (10%) of the amount overdue (up to a maximum of two hundred dollars ($200.00)) shall be levied for administration fees which sum shall become immediately due and payable.
13.6 Without prejudice to DMIs other remedies at law DMI shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to DMI shall, whether or not due for payment, become immediately payable in the event that:
(a) any money payable to DMI becomes overdue, or in DMIs opinion the Client will be unable to meet its payments as they fall due; or
(b) the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
14. Security And Charge
14.1 Despite anything to the contrary contained herein or any other rights which DMI may have howsoever:
(a) where the Client and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Client and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to DMI or DMIs nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Client and/or the Guarantor acknowledge and agree that DMI (or DMIs nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations payable hereunder have been met.
(b) should DMI elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Client and/or Guarantor shall indemnify DMI from and against all DMIs costs and disbursements including legal costs on a solicitor and own client basis.
(c) the Client and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint DMI or DMIs nominee as the Clients and/or Guarantors true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 14.1.
15. Compliance with Laws
15.1 The Client and DMI shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the works.
15.2 The Client shall obtain (at the expense of the Client) all licenses and approvals that may be required for the works.
15.3 The Client agrees that the site will comply with any occupational health and safety laws relating to building/construction sites and any other relevant safety standards or legislation.
16.1 DMI may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Client. On giving such notice DMI shall repay to the Client any sums paid in respect of the Price. DMI shall not be liable for any loss or damage whatsoever arising from such cancellation.
16.2 In the event that the Client cancels delivery of the Goods the Client shall be liable for any loss incurred by DMI (including, but not limited to, any loss of profits) up to the time of cancellation.
17. Privacy Act 1993
17.1 The Client and the Guarantor/s (if separate to the Client) authorises DMI to:
(a) collect, retain and use any information about the Client and/or Guarantors, for the purpose of assessing the Clients and/or Guarantors creditworthiness or marketing products and services to the Client and/or Guarantors; and
(b) disclose information about the Client and/or Guarantors, whether collected by DMI from the Client and/or Guarantors directly or obtained by DMI from any other source, to any other credit provider or any credit reporting agency for the purposes of providing or obtaining a credit reference, debt collection or notifying a default by the Client and/or Guarantors.
17.2 Where the Client and/or Guarantors are an individual the authorities under clause 17.1 are authorities or consents for the purposes of the Privacy Act 1993.
17.3 The Client and/or Guarantors shall have the right to request DMI for a copy of the information about the Client and/or Guarantors retained by DMI and the right to request DMI to correct any incorrect information about the Client and/or Guarantors held by DMI.
18. Unpaid DMIs Rights
18.1 Where the Client has left any item with DMI for repair, modification, exchange or for DMI to perform any other Service in relation to the item and DMI has not received or been tendered the whole of the Price, or the payment has been dishonoured, DMI shall have:
(a) a lien on the item;
(b) the right to retain the item for the Price while DMI is in possession of the item;
(c) a right to sell the item.
18.2 The lien of DMI shall continue despite the commencement of proceedings, or judgement for the Price having been obtained.
19. Construction Contract Act 2002
19.1 The Client hereby expressly acknowledges that:
(a) DMI has the right to suspend work within five (5) working days of written notice of its intent to do so if a payment claim is served on the Client, and:
(i) the payment is not paid in full by the due date for payment and no payment schedule has been given by the Client; or
(ii) a scheduled amount stated in a payment schedule issued by the Client in relation to the payment claim is not paid in full by the due date for its payment; or
(iii) the Client has not complied with an adjudicators notice that the Client must pay an amount to DMI by a particular date; and
(iv) DMI has given written notice to the Client of its intention to suspend the carrying out of construction work under the construction contract.
(b) if DMI suspends work, it:
(i) is not in breach of contract; and
(ii) is not liable for any loss or damage whatsoever suffered, or alleged to be suffered, by the Client or by any person claiming through the Client; and
(iii) is entitled to an extension of time to complete the contract; and
(iv) keeps its rights under the contract including the right to terminate the contract; and may at any time lift the suspension, even if the amount has not been paid or an adjudicators determination has not been complied with.
(c) if DMI exercises the right to suspend work, the exercise of that right does not:
(i) affect any rights that would otherwise have been available to DMI under the Contractual Remedies Act 1979; or
(ii) enable the Client to exercise any rights that may otherwise have been available to the Client under that Act as a direct consequence of DMI suspending work under this provision.
20.1 If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
20.2 These terms and conditions and any contract to which they apply shall be governed by the laws of New Zealand and are subject to the jurisdiction of the courts of New Zealand.
20.3 DMI shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by DMI of these terms and conditions.
20.4 In the event of any breach of this contract by DMI the remedies of the Client shall be limited to damages which under no circumstances shall exceed the Price of the Goods.
20.5 The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by DMI nor to withhold payment of any invoice because part of that invoice is in dispute.
20.6 DMI may license or sub-contract all or any part of its rights and obligations without the Clients consent.
20.7 DMI reserves the right to review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which DMI notifies the Client of such change.
20.8 The provisions of the Contractual Remedies Act 1979 shall apply to this contract as if section 15(d) were omitted from the Contractual Remedies Act 1979.
20.9 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.
20.10 The failure by DMI to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect DMIs right to subsequently enforce that provision.