Terms of Trade

D2 Process Limited
Terms and Conditions of Trade

All works, services and materials provided by D2 Process Limited to its Customers shall be in accordance with the following terms and conditions of trade.

1. Definitions
1.1 "Contractor", refers to D2 Process Limited, it's successors and/or any person acting on behalf of and with the authority of D2 Process Limited.
1.2 “Customer” means the Customer or any person acting on behalf of and with the authority of the Customer, as specified in any invoice, document or order, and if there is more than one Customer is a reference to each Customer jointly and severally.
1.3 “Works” ” means all Works, Services or Materials (including all materials, goods and equipment) supplied by the Contractor to the Customer at the Customer’s request from time to time (where the context so permits the terms ‘Works’ or ‘Services’ or ‘Materials’ shall be interchangeable for the other).
1.4 “Price” means the Price payable for the Works as agreed between the Contractor and the Customer in accordance with clause 3 below.

2 Acceptance
2.1 The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for, or accepts delivery of, the Works.
2.2 Where the Customer is unable to order or approve the provision of the Works in writing, the Customer’s verbal instructions shall be deemed to be full acceptance of the Contractor’s terms and conditions.
2.3 These terms and conditions may only be amended with the Contractor’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Customer and the Contractor.
2.4 These terms and conditions are to be read in conjunction with the Contractor’s quotation, agreement, manifests, or any other forms as provided by the Contractor to the Customer. If there are any inconsistencies between these documents, then the terms and conditions contained in that document shall prevail.
2.5 Any advice, recommendation, information, assistance or service provided by the Contractor in relation to Materials, Services or Works supplied is given in good faith, is based on the Contractor’s own knowledge and experience and shall be accepted without liability on the part of the Contractor and it shall be the responsibility of the Customer to confirm the accuracy and reliability of the same in light of the use to which the Customer makes or intends to make of the Materials, Services or Works.
2.6 Provided the Contractor acts reasonably, then the Contractor is entitled to assume that any request in connection with the Works that the Contractor receives from the Customer (or the Customer’s agents, employees or contractors) is authorised by the Customer.
2.7 Where the Customer is requesting or organising the Contractor to provide Works is acting with or on behalf of any third party and that third party is intended to be responsible for the payment (or any part thereof) of the Price then in the event that the third party does not pay for the Works when due, the Customer acknowledges that they shall be liable for the payment of the Price as if they had contracted the Works on their own behalf.
2.8 These terms and conditions will apply to any Purchase Order placed by the Customer in the absence of the Contractor not agreeing in writing to the Customer or Contract terms and conditions.

3 Price and Payment
3.1 The Contractor’s Price shall be either:
(a) as indicated on invoices provided by the Contractor to the Customer in respect of Works and Services performed or Materials supplied; or
(b) the Contractor’s quoted Price (subject to clause 3.2) which shall be binding upon the Contractor provided that the Customer shall accept the Contractor’s quotation in writing within fourteen (14) days.
3.2 The Contractor reserves the right to change the Price:
(a) if a variation to the Materials which are to be supplied is requested; or
(b) if a variation to the Works or Services originally scheduled (including any applicable plans or specifications) is requested; or
(c) where additional Works or Services are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to poor weather conditions, limitations to accessing the site, dewatering, safety considerations etc) which are only discovered on commencement of the Works; or
(d) in the event of increases to the Contractor in the cost of labour or materials which are beyond the Contractor’s control.
3.3 Variations will be charged for on the basis of the Contractor’s quotation, and will be detailed in writing, and shown as variations on the Contractor’s invoice. The Customer shall be required to respond to any variation submitted by the Contractor within ten (10) working days. Failure to do so will entitle the Contractor to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion.
3.4 At the Contractor’s sole discretion, a deposit may be required.
3.5 Time for payment for the Works being of the essence, the Price will be payable by the Customer on the date/s determined by the Contractor, which may be:
(a) before delivery of the Materials; or
(b) on completion of the Works; or
(c) by way of progress payments in accordance with the Contractor’s specified progress payment schedule. Such progress payment claims may include the reasonable value of authorised variations and the value of any Materials delivered to the worksite but not yet installed;
(d) for certain approved Customer’s, due twenty (20) days following the end of the month in which a statement is posted to the Customer’s address or address for notices;
(e) seven (7) days following the date specified on any invoice or other form as being the date for payment; or
(f) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Customer by the Contractor.
3.6 Payment may be made by cheque, bank cheque, electronic/on-line banking, credit card (a surcharge may apply per transaction), or by any other method as agreed to between the Customer and the Contractor.
3.7 The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by the Contractor nor to withhold payment of any invoice because part of that invoice is in dispute.
3.8 Unless otherwise stated the Price does not include GST. In addition to the Price, the Customer must pay to the Contractor an amount equal to any GST the Contractor must pay for any supply by the Contractor under this or any other contract for the sale of the Materials. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition, the Customer must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price. 

4 Provision of Works
4.1 Subject to clause 4.2 it is the Contractor’s responsibility to ensure that the Works start as soon as it is reasonably possible.
4.2 The Works’ commencement date will be put back and the completion date extended by whatever time is reasonable in the event that the Contractor claims an extension of time (by giving the Customer written notice) where completion is delayed by an event beyond the Contractor’s control, including but not limited to any failure by the Customer to:
(a) make a selection; or
(b) have the premises ready for the Works; or
(c) notify the Contractor that the premises is ready.
4.3 The Contractor may deliver the Works by separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
4.4 Any time specified by the Contractor for delivery of the Works is an estimate only and the Contractor will not be liable for any loss or damage incurred by the Customer as a result of delivery being late. However, both parties agree that they shall make every endeavour to enable the Works to be supplied at the time and place as was arranged between both parties. In the event that the Contractor is unable to supply the Works as agreed solely due to any action or inaction of the Customer, then the Contractor shall be entitled to charge a reasonable fee for re-supplying the Works at a later time and date, and/or for storage of the Materials.
4.5 The Customer shall ensure that the Contractor has clear and free access to the work site at all times to enable them to undertake the. The Contractor shall not be liable for any loss or damage to the site unless due to the negligence of the Contractor.

5. Risk
5.1 All risk in the Materials will pass to the customer upon delivery.
5.2 If the Contractor retains ownership of the Materials under clause 8 then:
(a) where the Contractor is supplying Materials only, all risk for the Materials shall immediately pass to the Customer on delivery and the Customer must insure the Materials on or before delivery. Delivery of the Materials shall be deemed to have taken place immediately at the time that either;
(i) the Customer or the Customer’s nominated carrier takes possession of the Materials at the Contractor’s address; or
(ii) the Materials are delivered by the Contractor or the Contractor’s nominated carrier to the Customer’s nominated delivery address (even if the Customer is not present at the address).
5.3 Notwithstanding the provisions of clause 5.2, if the Customer specifically requests the Contractor to leave Materials outside the Contractor’s premises for collection or to deliver the Materials to an unattended location then such materials shall always be left at sole risk of the Customer and it shall be the Customer’s responsibility to ensure the Materials are insured adequately or at all. In the event that such Materials are lost, damaged or destroyed then replacement of the Materials shall be at the Customer’s expense.
5.4 The Contractor shall not be held liable for any costs, losses or damages where there are delays due to work not being completed by either third parties or circumstances beyond the Contractor’s control.

6. Title
6.1 Contractor and the Customer agree that ownership of the Materials shall not pass until:
(a) the Customer has paid Contractor all amounts owing to Contractor; and
(b) the Customer has met all of its other obligations to Contractor.
6.2 Receipt by Contractor 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.
6.3 It is further agreed that:
(a) until ownership of the Materials passes to the Customer in accordance with clause 6.1 that the Customer is only a bailee of the Materials and unless the Materials have become fixtures must return the Materials to Contractor on request.
(b) the Customer holds the benefit of the Customer’s insurance of the Materials on trust for Contractor and must pay to Contractor the proceeds of any insurance in the event of the Materials being lost, damaged or destroyed.
(c) the production of these terms and conditions by Contractor shall be sufficient evidence of Contractor’s rights to receive the insurance proceeds direct from the insurer without the need for any person dealing with Contractor to make further enquiries.
(d) the Customer must not sell, dispose, or otherwise part with possession of the Materials other than in the ordinary course of business and for market value. If the Customer sells, disposes or parts with possession of the Materials then the Customer must hold the proceeds of any such act on trust for Contractor and must pay or deliver the proceeds to Contractor on demand.
(e) the Customer should not convert or process the Materials or intermix them with other goods but if the Customer does so then the Customer holds the resulting product on trust for the benefit of Contractor and must sell, dispose of or return the resulting product to Contractor as it so directs.
(f) unless the Materials have become fixtures the Customer irrevocably authorises Contractor to enter any premises where Contractor believes the Materials are kept and recover possession of the Materials.
(g) Contractor may recover possession of any Materials in transit whether or not delivery has occurred.
(h) the Customer shall not charge or grant an encumbrance over the Materials nor grant nor otherwise give away any interest in the Materials while they remain the property of Contractor.
(i) Contractor may commence proceedings to recover the Price of the Materials sold notwithstanding that ownership of the Materials has not passed to the Customer.

7 Personal Property Securities Act 1999 (“PPSA”)
7.1 Security:
Upon accepting these terms and conditions in writing or verbally the Customer acknowledges and agrees that:
(a) These Terms create in favour of the Contractor, a security interest in all present and after acquired Goods (being for the avoidance of doubt, all the Customer’s present personal property and after acquired personal property except for any item of personal property which has not (or which is exclusively the proceeds of any item of personal property which has not) been supplied by the Contractor to (or for the account of) the Customer) to secure the payment by the Customer to the Contractor of all indebtedness of the Customer to the Contractor.
(b) These Terms shall apply notwithstanding anything, express or implied, to the contrary contained in the Customer’s order; and
(c) The security interest continues until the Contractor gives a final release.
7.2 Financing statement
The Customer undertakes to:
(a) sign any further documents and/or provide any further information (which information you warrant to be complete, accurate and up-to-date in all respects) which the Contractor may reasonably require to enable the Contractor to perfect and maintain the perfection of its security interest (including by registering a financial statement and financing change statement);
(b) not register a financing change statement or a change demand in respect of the Goods (as those terms are defined in the PPSA) without our prior written consent; and
(c) give the Contractor not less than 14 days prior written notice of any proposed change in the Customer’s name and/or any other change in the Customer’s details (including, but not limited to, changes in the Customer’s address, facsimile number, trading name or business practice).
7.3 Waiver and Contracting Out
(a) Unless otherwise agreed to in writing by the Contractor the Customer waives the right to receive a verification statement in respect of any financing statement or financing change statement relating to the security interest.
(b) To the maximum extent permitted by law, the Customer waives its rights and, with our agreement, contract out its rights under the sections referred to in section 107(2)(c), (d), (h) and (i) of the PPSA.
(c) The Customer agrees that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these Terms and, with the Contractor’s agreement, contract out of such sections.
(d) The Customer and Contractor agree that section 109(1) of the PPSA is contracted out of in respect of particular Goods if and only for as long as the Contractor is not the secured party with priority over all other secured parties in respect of those Goods.
7.4 Defined Terms
“Goods” means all Goods (including materials and equipment) supplied from time to time by the Contractor to the Customer, provided that:
(a) where the Goods supplied are the Customer’s Inventory, then all references to Goods in these Terms shall, in respect of those Goods, be read as references to Inventory; and
(b) where the Goods supplied are not Inventory then all references to Goods in these Terms shall, in respect of those Goods, mean the Goods described in any one or more of the relevant order form, packing slip or invoice (or its equivalent, whatever called) relating to those Goods, on the basis that each such order form, packing slip or invoice (or its equivalent) shall be deemed to be incorporated in, and form part of, these Terms.
“Inventory” has the meaning given to that term in the PPSA.
“PPSA” means the Personal Property Securities Act 1999 as amended or substituted from time to time.
“Terms” means these terms of trade.
Unless the context otherwise requires, words and phrases shall have the meanings given to them in, or by virtue of, the PPSA.

8 Default and Consequences of Default
8.1 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 one half percent (2.5%) per calendar month (and at the Contractor’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
8.2 If the Customer owes the Contractor any money the Customer shall indemnify the Contractor from and against all costs and disbursements incurred by the Contractor in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own Customer basis, the Contractor’s collection agency costs, and bank dishonour fees).
8.3 Without prejudice to any other remedies the Contractor may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions, the Contractor may suspend or terminate the supply of Works to the Customer (including repossessing the Materials), and any of its other obligations under the terms and conditions including the Contractor’s right to revoke any discount which applies to the order, and apply their standard rates. The Contractor will not be liable to the Customer for any loss or damage the Customer suffers because the Contractor has exercised its rights under this clause.
8.4 In the event that any discount offered to the Customer is revoked due to late payment, interest shall be charged in accordance with clause 8.1 on the full amount of the invoice including the addition of the discounted amount.
8.5 Without prejudice to the Contractor’s other remedies at law the Contractor shall be entitled to cancel all or any part of any order of the Customer which remains unperformed in addition to and without prejudice to any other remedies the Contractor may have and all amounts owing to the Contractor shall, whether or not due for payment, become immediately payable in the event that:
 (a) any money payable to the Contractor becomes overdue, or in the Contractor’s opinion the Customer will be unable to meet its payments as they fall due; or
 (b) the Customer has exceeded any applicable credit limit provided by the Contractor.
 (c) the Customer becomes insolvent or bankrupt, 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
 (d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.

9 Customer’s Disclaimer
9.1 The Customer hereby disclaims any right to rescind or cancel any contract with the Contractor or to sue for damages or to claim restitution arising out of any inadvertent misrepresentation made to the Customer by the Contractor and the Customer acknowledges that the Works are ordered relying solely upon the Customer’s skill and judgment.
10 Defects, Errors and Omissions
10.1 The Customer shall inspect the Works on delivery and shall within five (5) days of such time (being of the essence) notify the Contractor of any alleged defect, shortage in quantity, errors, omissions or failure to comply with the description or quote. The Customer shall afford the Contractor an opportunity to inspect/review the Works within a reasonable time following such notification if the Customer believes the Works are defective in any way. If the Customer shall fail to comply with these provisions, the Works shall be conclusively presumed to be in accordance with the terms and conditions and free from any defect or damage.
10.2 For defective Works, which the Contractor has agreed in writing that the Customer is entitled to reject, the Contractor’s liability is limited to either (at the Contractor’s discretion) replacing the Works, repairing the Equipment/Goods or rectifying the Works provided that the Customer has complied with the provisions of clause 10.1
10.3 Returns will only be accepted provided that:
(a) the Customer has complied with the provisions of clause 10.1; and
(b) the Contractor has agreed in writing to accept the return of the Materials; and
(c) the Materials are returned at the Customer’s cost within five (5) days of the delivery date; and
(d) the Contractor will not be liable for Materials which have not been stored or used in a proper manner; and
(e) the Materials are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonably possible in the circumstances.
10.4 Returned Materials may (at the Contractor’s sole discretion), incur restocking and handling fees.
10.5 Materials made to the Customer’s specifications are under no circumstances acceptable for credit or return.

11 Electronic Transactions Act 2002
11.1 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 22 of the Electronic Transactions Act 2002 or any other applicable provisions of that Act or any Regulations referred to in that Act.

12 Change in Control
12.1 The Customer shall give the Contractor not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s name, address, contact phone or fax number/s, or business practice). The Customer shall be liable for any loss incurred by the Contractor as a result of the Customer’s failure to comply with this clause.

13 Consumer Guarantees Act 1993
13.1 If the Customer is ordering Works, Services or Materials for the purposes of a trade or business, the Customer acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of Works, Services or Materials by the Contractor to the Customer.

14 Intellectual Property
14.1 Where Contractor has designed, drawn, written plans or a schedule of Works, or created any products for the Customer, then the copyright in all such designs, drawings, documents, plans, schedules and products shall remain vested in Contractor, and shall only be used by the Customer at Contractor’s discretion. Under no circumstances may such designs, drawings and documents be used without the express written approval of Contractor.
14.2 The Customer warrants that all designs, specifications or instructions given to Contractor will not cause Contractor to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify Contractor against any action taken by a third party against Contractor in respect of any such infringement.
14.3 The Customer agrees that Contractor may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings, plans or products which Contractor has created for the Customer.

15 Compliance with Laws
15.1 The Customer and the Contractor 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, including any WorkSafe guidelines regarding health and safety laws relating to building/construction sites and any other relevant safety standards or legislation.
15.2 The Contractor has not and will not at any time assume any obligation as the Customer’s agent or otherwise which may be imposed upon the Customer from time to time pursuant to the Health & Safety at Work Act 2015, including any subsequent regulations (the “HSW Act”) arising from the engagement of Works under this contract. Unless other agreed, the parties agree that for the purposes of the HSW Act, the Contractor shall not be the person who controls the place of work in terms of the HSW Act.
15.3 The Customershall obtain (at the expense of the Customer) all licenses, approvals, applications and permits that may be required for the Works.

16 Warranties
16.1 Subject to the conditions of warranty set out in clause 16.2 the Contractor warrants that if any defect in any workmanship of the Contractor becomes apparent and is reported to the Contractor within twelve (12) months of the date of delivery (time being of the essence) then the Contractor will either (at the Contractor’s sole discretion) replace or remedy the workmanship.
16.2 The conditions applicable to the warranty given by clause 16.1 are:
(a) the warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
(i) failure on the part of the Customer to properly maintain any Materials; or
(ii) failure on the part of the Customer to follow any instructions or guidelines provided by the Contractor; or
(iii) any use of any Materials otherwise than for any application specified on a quote or order form; or
(iv) the continued use of any Materials after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or
(v) fair wear and tear, any accident or act of God.
(b) the warranty shall cease and the Contractor shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without the Contractor’s consent.
(c) in respect of all claims the Contractor shall not be liable to compensate the Customer for any delay in either replacing or remedying the workmanship or in properly assessing the Customer’s claim.
16.3 For Materials not manufactured by the Contractor, the warranty shall be the current warranty provided by the manufacturer of the Materials. the Contractor 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 Materials.

17 Cancellation
17.1 Without prejudice to any other remedies the Contractor may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions the Contractor may suspend or terminate the supply of Works to the Customer. The Contractor will not be liable to the Customer for any loss or damage the Customer suffers because the Contractor has exercised its rights under this clause.
17.2 The Contractor may cancel these terms and conditions or cancel delivery of Works at any time before the Works are delivered by giving written notice to the Customer. On giving such notice the Contractor shall repay to the Customer any sums paid in respect of the Price. The Contractor shall not be liable for any loss or damage what so ever arising from such cancellation.
17.3 In the event that the Customer cancels delivery of the Works the Customer shall be liable for any and all loss incurred (whether direct or indirect) by the Contractor as a direct result of the cancellation (including, but not limited to, any loss of profits).

18 Privacy Act 1993
18.1 The Customer authorises the Contractor or the Contractor’s agent to:
 (a) access, collect, retain and use any information about the Customer;
 (i)(including any overdue fines balance information held by the Ministry of Justice) for the purpose of assessing the Customer’s creditworthiness; or 
 (ii) for the purpose of marketing products and Works to the Customer.
 (b) disclose information about the Customer, whether collected by the Contractor from the Customer directly or obtained by the Contractor 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 Customer.
18.2 Where the Customer is an individual the authorities under clause 18.1 are authorities or consents for the purposes of the Privacy Act 1993.
18.3 The Customer shall have the right to request the Contractor for a copy of the information about the Customer retained by the Contractor and the right to request the Contractor to correct any incorrect information about the Customer held by the Contractor.

19. Service of Notices
19.1 Any written notice given under this contract shall be deemed to have been given and received:
(a) by handing the notice to the other party, in person;
(b) by leaving it at the address of the other party as stated in the contract for Works;
(c) by sending it by registered post to the address of the other party as stated in the contract for Works;
(d) if sent by facsimile transmission to the fax number of the other party as stated in this contract (if any), on receipt of confirmation of the transmission;
(e) if sent by email to the other party’s last known email address.
19.2 Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.

20 Dispute Resolution
20.1 All disputes and differences between the Customer and the Contractor concerning this agreement shall be referred to arbitration under a single arbitrator agreed upon by both parties, or failing agreement, by two arbitrators (one to be appointed by each party) and their umpire (appointed by them prior to arbitration), such arbitration to be carried out in accordance with provisions of the Arbitration Act 1996.

21 General
21.1 The failure by the Contractor to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect the Contractor’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforce-ability of the remaining provisions shall not be affected, prejudiced or impaired.
21.2 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.
21.3 Neither the Customer nor the Contractor will be liable at any time for an indirect or consequential loss, or loss of revenue or profits.
21.4 The Contractor may elect to subcontract out any part of the Works but shall not be relieved from any liability or obligation under this contract by so doing. The Customer agrees and understands that they have no authority to give any instruction to any of the Contractor’s sub-contractors without the authority of the Contractor.
21.5 The Customer agrees that the Contractor may amend these terms and conditions at any time. If the Contractor makes a change to these terms and conditions, then that change will take effect from the date on which the Contractor notifies the Customer of such change. The Customer will be taken to have accepted such changes if the Customer makes a further request for the Contractor to supply Works to the Customer. The Contractor’s current terms and conditions will also be available on the Contractor’s website.
21.6 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
21.7 The Customer warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it.
21.8 In cases where the Contractor has supplied all required documentation to the Customer and said documentation is miss-placed or lost and a request to re-supply said documentation is made, administration fees can and will be applied.