Terms And Conditions Of Trade
Terms
1. These terms and conditions constitute the complete contract between DPL and the Customer.
2. Subject to clause 16, these terms and conditions of trade may only be modified, altered or amended in writing signed by DPL and the Customer.
3. For the purposes of this contract the “Customer” includes agents and/or representatives on behalf of the Customer.
4. DPL reserves the right in its absolute discretion to refuse to complete the Works for the Customer.
Definitions and Interpretation
5. “the Act” means the Construction Contracts Act 2002.
6. “Claimed Amount” means the amount claimed by DPL under any Payment Claim.
7. “Consents” includes building consents, code of compliance certificates or other certificates or consents required under any law or by any territorial authority; and consents required from any landlord or body corporate; in respect of the Works.
8. “Customer” is as defined in the Quote.
9. “Due Date” means the date specified in a Payment Claim by which the applicable Claimed Amount must, subject to clause 26, be paid to DPL by the Customer.
10. “Goods” means any goods or materials used by DPL in performing the Works irrespective of whether they are attached or affixed to the Site.
11. “Guarantor” is as defined in the Quote.
12. “Payment Claim” shall have the meaning as defined in section 5 of the Act.
13. “Payment Schedule” shall have the meaning as defined in section 5 of the Act.
14. “Price” shall have the meaning as described in the Quote or as varied in accordance with clause 16.
15. “Site” shall have the meaning as described in the Quote.
16. “working day” shall have the meaning ascribed to that term in the Act.
17. “Works” shall mean the works to be completed by DPL as described in the Quote.
18. “Quote” means the quote provided by DPL to the Customer recording the estimated cost of the Works.
Works and Price
19. DPL agrees to complete the Works at the Price.
20. Where the Works have been varied at the instruction of the Customer and no written variation has been agreed, then if DPL has attended to that variation in reliance on that instruction, DPL shall be entitled to increase the Price by such reasonable amount as is necessary to reflect the cost of the additional time and materials.
21. The Price is exclusive of any Goods and Services Tax.
Payments
22. Payment of the Price is to be made in accordance with the provisions contained in the Quote.
23. In accordance with section 15 of the Act, in the event that no payment arrangement is provided in the Quote then the default provisions of sections 16 to 18 of the Act shall apply.
Payment Claims
24. DPL will prepare and serve the Customer with Payment Claims pursuant to clauses 23 and 24.
25. In accordance with section 20 of the Act each Payment Claim must:
(a) be in writing; and
(b) contain sufficient details to identify this contract; and
(c) identify the Work and the relevant period to which the Payment Claim relates; and
(d) indicate the Claimed Amount and the Due Date; and
(e) indicate the manner in which DPL calculated the claimed amount; and
(f) state that it is made under the Act.
26. The Claimed Amount becomes payable on the due date specified in the Payment Claim unless a Payment Schedule has been served in accordance with clauses 25, 26 and 27 in which case the Scheduled Amount becomes payable on the Due Date.
Payment Schedules
27. The Customer may respond to a Payment Claim by serving a Payment Schedule as defined by the Act on DPL within 5 working days from the date of service of the Payment Claim.
28. In accordance with section 21 of the Act such Payment Schedule must:
(a) be in writing; and
(b) identify the Payment Claim to which it relates; and
(c) indicate an amount that the Customer proposes to pay to DPL in response to a payment claim (“Scheduled Amount”).
29. If the Scheduled Amount is less than the Claimed Amount, the Payment Schedule must indicate—
(a) the manner in which the Customer calculated the Scheduled Amount; and
(b) the Customer’s reason or reasons for the difference between the Scheduled Amount and the Claimed amount; and
(c) in a case where the difference is because the Customer is withholding payment on any basis, the Customer’s reason or reasons for withholding payment.
Consents
30. Except where expressly provided in the Quote, the Customer is responsible for obtaining at its cost all Consents.
Default
31. If full payment of the Claimed Amount or Scheduled Amount, whichever is applicable, is not made by the Due Date, then without prejudice to any other remedies available to DPL (including but not limited to those provided in sections 23, 24 and 72 of the Act):
(a) DPL may charge interest on the overdue account at a rate of 10 percent per annum.
(b) Cancel this contract and be under no obligation to complete the Works.
(c) DPL shall be entitled to enter the Site and remove any Goods and the Customer grants a licence to DPL to give effect to the terms of this provision.
32. The Customer shall be responsible for all costs incurred by DPL in recovering such monies including but not limited to any solicitor’s costs and collection costs.
Personal Property Securities Act 1999
33. The legal, equitable and beneficial ownership and title of any Works completed and any Goods brought onto the Site shall remain vested in DPL until such time as the Customer has paid DPL all monies due and payable under this contract in cleared funds.
34. The Customer grants a Purchase Money Security Interest (“PMSI”) pursuant to the Personal Property Securities Act 1999 (“PPSA”) in favour of DPL over all the Goods and the priority thereof shall extend into and over the proceeds of any sale of such Goods by the Customer
35. DPL may at the Customer’s cost register the PMSI under the PPSA by registering a financing statement and if at some later date additional or different works are supplied, to provide if necessary for registration a new collateral description by registering a financing change statement. This will not affect DPL’s right to register subsequent financing statements, and to register subsequent financing change statements in respect of any other amendments;
36. The Customer agrees to provide DPL with such information as it may need to enable registration of the PMSI under the PPSA and shall promptly execute any documents to ensure that the security interest under these terms and conditions is a first ranking perfected security interest and waive the right to receive a copy of the verification statement issued upon registration of the financing statement of any financing change statement;
37. Where the Goods have been incorporated into the Site so as to form part of the realty, the Customer nonetheless grants the DPL the right to enter the Site and remove the Goods at the Customer’s cost subject only to the provisions of any other applicable law.
Termination
38. This contract can be terminated by the Customer only if DPL, in its sole discretion, agrees to the termination in writing prior to the provision of any of the Works.
39. In the event of termination, DPL may charge a termination fee.
Warranty and Limitation of Liability
40. DPL warrants that the Works completed provided under this contract will be completed in a good workman like manner and in accordance with standard trade practices.
41. Any defects in the Works which may appear as a result of faulty workmanship, defect or failure in materials which are notified to DPL in writing and served within 45 days after Completion of the Work, fair wear and tear excepted, shall be corrected by DPL at DPL’s own cost within a reasonable time.
42. DPL’s liability under any statutory right or any condition or warranty, including any implied by the Sale of Goods Act 1908, the Fair Trading Act 1986, the Consumer Guarantees Act 1993 or similar Act is, to the maximum extent permitted by law, excluded and the Customer acknowledges that any products and Services supplied by DPL are, for the purposes of the Consumer Guarantees Act, acquired in trade.
43. DPL’s liability beyond the above warranty or for any defect in or for any loss, injury or damage attributable thereto is limited to the consideration paid by the Customer for the Works.
Intellectual Property
44. All rights, title and interest in any copyright, trade mark, or other intellectual property rights relating to the completion of the Works is the property of DPL and shall remain the property of DPL.
45. The Customer is not entitled to use any copyright, trade mark, or other intellectual property rights relating to the completion of the Works.
Confidentiality
46. Each party must ensure that all confidential information disclosed within the course of the completion of the Works remains strictly confidential.
47. The Customer must not publish any negative information in any public forum that is likely to cause harm to the reputation or good will of DPL.
Disputes
48. In the event that the Customer has served DPL with a Payment Schedule and the Customer and DPL cannot come to an agreement between themselves on the Claimed Amount then the dispute resolution provisions in Part 3 of the Act shall apply.
49. The parties agree that any dispute relating to or arising from this contract that does not fall into the ambit of clause 48 (“a Dispute”) shall in the first instance be subject to the resolution process provided in clauses 49 to 54 (inclusive) and neither party shall commence or maintain any action or proceeding in any court, tribunal or otherwise regarding a Dispute without first complying with those provisions.
50. If a party considers that a Dispute has arisen, it may issue a written Dispute notice to the other party, setting out reasonable particulars of the matter in Dispute. For a period of 20 working days after a party receives a Dispute notice, the parties shall with best endeavours and in good faith negotiate to attempt to resolve the Dispute and shall (subject to privilege) furnish to the other party all information with respect to the Dispute which is reasonably requested by the other party.
51. If the Dispute has not been resolved within 20 working days after receipt of the Dispute notice, or within such further period as the parties agree in writing, the parties shall attempt to settle the Dispute by mediation administered by Leadr NZ Inc. (or, if for any reason Leadr NZ Inc. does not exist or is unable to act, then a mediator selected by the current President of the New Zealand Law Society), before having recourse to any other Dispute resolution processes which may be available to the parties.
52. The mediation described in clause 49 shall be conducted in accordance with Leadr NZ Inc. Guidelines as from time to time in force.
53. If the Dispute has not been resolved within 20 working days, or within such further period as the parties agree in writing, after the commencement of mediation, then either party may exercise any of its rights under the termination provisions of this contract or any other legal rights which may be available to it.
54. Each party shall use its best endeavours to ensure that, where a Dispute is reasonably foreseeable, it is dealt with at a sufficiently early stage to ensure that there is a minimum effect on the ability of any party to perform its obligations under this contract.
55. Notwithstanding the above, nothing in clauses 49 to 54 shall prevent any party from seeking urgent equitable relief before an appropriate court.
Guarantee
56. Where a Guarantor has entered into this contract the provisions of clauses 57 to 61 (inclusive) shall apply.
57. The Guarantor unconditionally guarantees the due payment by the Customer of all monies due to DPL, whether now or in the future, pursuant to the provisions of this contract (“Guaranteed Moneys”). The Guarantor undertakes that if, for any reason, the Customer does not pay any Guaranteed Moneys or any part of them when due (whether by acceleration or otherwise), the Guarantor will pay the relevant amount immediately on demand being made by DPL.
58. As between the Guarantor and DPL (but without affecting the obligations of the Customer) the Guarantor is liable under this contract as a sole and principal debtor and not as a surety.
59. The Guarantor’s liability shall not be discharged or affected by any time, indulgence or waiver given to the Customer or any other person; the making of, or failure to make, a demand on the Customer or another person for payment; the enforcement of, or failure to enforce, any other security, guarantee or other agreement; the release of, or failure to release, the Customer from any rights and obligations owed to DPL; or the dissolution, amalgamation, change in status, constitution or control or reconstruction of the Customer or another person (or the commencement of steps to effect the same).
60. The guarantee contained in this Deed shall be a continuing guarantee and shall remain in full force and effect until the Customer has paid to DPL all the Guaranteed Moneys.
61. The Guarantor will pay upon demand all costs and expenses (including all taxes and legal expenses on a solicitor/client basis) sustained or incurred by DPL as a result of the exercise of, or in protecting or enforcing or otherwise in connection with its rights under this Guarantee.
Service
62. Service of any Payment Claim or Payment Schedule will be deemed to be made if posted by a party to the address for the other party recorded in the Quote.
General
63. This contract between DPL and the Customer shall be governed by New Zealand law and will be in the exclusive jurisdiction of New Zealand Courts.
64. No waiver or any breach of the terms and conditions of service shall be deemed to be a waiver of any other or any subsequent breach.
65. The failure of either party to enforce any provision in the terms and conditions of service at any time shall not be interpreted as a waiver of the provision.
66. If any provision of the terms and conditions of service are unenforceable, such unenforceability shall not affect any other part of such provision or any other provision thereof.
67. The Customer is not entitled to assign or subcontract any of their rights or obligations under this contract.