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Terms of Trade

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  1. Definitions
    1. Buyer means the Buyer or any person acting on behalf of and with the authority of the Buyer.
    2. Goods have the same meaning as in section 2 of the Sale of Goods Act 1908 and are goods supplied by the Seller to the Buyer (and where the context so permits shall include any supply of Services (as defined below)).
    3. Online Portal means the internet site operated by the Seller, being the medium by which Goods and Services are offered for sale online by the Seller.
    4. Seller means D M Dunningham Limited and its successors and assigns.
    5. Services means all services supplied by the Seller to the Buyer and includes any advice or recommendations (and where the context so permits shall include any supply of Goods (as defined above)).
  2. Acceptance
    1. Any instructions received by the Seller from the Buyer for the supply of Goods and Services, including by way of the Buyer placing an order on the Seller’s Online Portal and/or the Buyer’s acceptance of Goods and Services supplied by the Seller shall constitute acceptance of the terms and conditions contained herein.
    2. Where more than one Buyer has entered into this agreement, the Buyers shall be jointly and severally liable for all payments for the Goods and Services.
    3. Upon acceptance of these terms and conditions by the Buyer the terms and conditions are irrevocable and can only be rescinded in accordance with these terms and conditions or with the written consent of the manager of the Seller.
    4. None of the Seller’s agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the manager of the Seller in writing nor is the Seller bound by any such unauthorised statements.
  3. Goods/ Services
    1. The Goods and Services are as described on the Online Portal, invoices, quotation, work authorisation or any other work commencement forms as provided by the Seller to the Buyer.
  4. Use of the Online Portal
    1. The Seller may, in its absolute discretion, refuse any application by a Buyer who wishes to access the Online Portal and the Seller may suspend or terminate the ability of a Buyer to purchase Goods and Services through the Online Portal for any reason whatsoever.
    2. The Seller may accept or refuse any order placed through the Online Portal at its absolute discretion and may cancel an order placed through the Online Portal for any reason.
    3. The Buyer shall ensure that their Login is kept safe and confidential at all times and shall not disclose their Login to any person or allow any other person to access their Online Portal.
    4. The Buyer shall be liable for every order placed using the Buyer’s Login.
    5. The Seller shall use reasonable endeavours to prevent unauthorised entry into the Online Portal. However, the Seller shall not be liable for any damage or loss caused as a result of a third party gaining unauthorised access except in the event of the Seller’s negligence.
  5. Price and Payment
    1. Where orders are placed through the Online Portal, the Buyer shall pay the price that is displayed online at the time the Buyer submits the order on the Online Portal and payment for goods ordered must be received in full prior to delivery being made.
    2. For orders that are not made through the Online Portal, the price shall be the Seller’s current price, at the date of purchase of the Goods and Services.
    3. Except for orders made through the Online Portal, for which payment must be made by credit card, a Buyer can make payment by cheque, credit card, direct credit, or any other method as agreed between the Buyer and the Seller.
    4. All prices shall be in New Zealand dollars and shall be increased by the amount of any GST and other taxes and duties which may be applicable, except to the extent that such taxes are expressly included in any quotation given by the Seller.
    5. The Seller may require the Buyer to pay any delivery or freight costs that the Seller incurs in delivering Goods to the Buyer.
    6. D M Dunningham Limited - Terms & Conditions of Trade (Consumer) © Copyright – EC Credit Control Limited - 2005
  6. Delivery Of Goods
    1. Delivery of the Goods ordered from the Online Portal shall be made to the Buyer’s address as specified to the Seller in the Online Portal application or as notified to the Seller in writing at the time the Buyer places the order.
    2. The Buyer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. The Seller shall be entitled to assume that any person accepting delivery of the Goods is authorised to do so on behalf of the Buyer.
    3. If the Seller considers that delivery of the Buyer’s order is to be substantially delayed, the Seller may contact the Buyer to arrange an alternative delivery timeframe. If that timeframe is not acceptable to the Buyer, the Buyer may cancel the order without incurring any fee for doing so.
    4. The failure of the Seller to deliver shall not entitle either party to treat this contract as repudiated.
  7. Risk
    1. Property and risk in the Goods passes to the Buyer on delivery.
    2. If any of the Goods are damaged or destroyed prior to title to them passing to the Buyer, the Seller isentitled, without prejudice to any of its other rights or remedies under these terms and conditions (including the right to receive payment of the balance of the price for the Goods), to receive all insurance proceeds payable in respect of the Goods. This applies whether or not the price has become payable under these terms and conditions. The production of these terms and conditions by the Seller is sufficient evidence of the Seller’s rights to receive the insurance proceeds without the need for any person dealing with the Seller to make further enquiries.
  8. Defects/Returns
    1. The Buyer shall inspect the Goods on delivery and shall within seven (7) days of delivery notify the Seller of any alleged defect, shortage in quantity, damage or failure to comply with the description.
    2. The Buyer shall afford the Seller an opportunity to inspect the Goods within a reasonable time following delivery if the Buyer believes the Goods are defective in any way. If the Buyer fails to comply with these provisions the Goods shall be conclusively presumed to be free from any defect or damage.
    3. For defective Goods, which the Buyer is entitled to reject, the Seller’s liability is limited to either replacing or repairing the Goods or refunding the price paid by the Buyer for the Goods provided that:
      • the Buyer has complied with the provisions of clauses 8.1 and 8.2;
      • the Goods are returned at the Buyer’s cost within seven (7) days of the delivery date;
      • the Seller will not be liable for Goods which the Buyer has not stored or used in a proper manner;
      • the Goods 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.
  9. Warranties and Consumer Guarantees Act 1993
    1. For Goods not manufactured by the Seller, the warranty shall be the current warranty provided by the manufacturer of the Goods. The Seller shall not be bound by nor responsible for any term, condition, representation or warranty given by the manufacturer of the Goods.
    2. The Buyer acknowledges that where it is acquiring the Goods and Services for business purposes, the provisions of the Consumer Guarantees Act 1993 are excluded.
  10. Cancellation
    1. If the Buyer wishes to cancel an order after it has been placed, the Buyer may incur a cancellation fee which will the Seller will notify to the Buyer at the time of the cancellation.
    2. The Seller may cancel these terms and conditions or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Buyer. On giving such notice the Seller shall promptly repay to the Buyer any sums paid in respect of the price for those Goods. The Seller shall not be liable for any loss or damage whatsoever arising from such cancellation.
  11. Privacy Act 1993
    1. The Buyer authorises the Seller to:
      • collect, retain and use any information about the Buyer, for the purpose of assessing the Buyer’s creditworthiness or marketing products and services; and
      • to disclose information about the Buyer, whether collected by the Seller from the Buyer directly or obtained by the Seller 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 Buyer.
    2. The authorities under clause 11.1 are authorities or consents for the purposes of the Privacy Act 1993. D M Dunningham Limited - Terms & Conditions of Trade (Consumer) © Copyright – EC Credit Control Limited - 2005
    3. The Buyer shall have the right to ask the Seller for a copy of the information about the Buyer retained by the Seller and the right to ask the Seller to correct any incorrect information about the Buyer held by the Seller.
  12. Contractual Remedies Act 1979
    1. The provisions of the Contractual Remedies Act 1979 shall apply to this contract as if section 15(d) of the Contractual Remedies Act (which states that nothing in the Contractual Remedies Act shall affect the Sale of Goods Act 1908), was omitted from the Contractual Remedies Act 1979.
  13. Unpaid Seller’s Rights
    1. Where the Buyer has left any item with Seller for repair, modification, exchange or for the Seller to perform any other Service in relation to the item and Seller has not received or been tendered the whole of the price, or the payment has been dishonoured, the Seller shall have:
      • a lien on the item;
      • the right to retain the item for the price while the Seller is in possession of it;
      • a right of resale,
      • the foregoing right of disposal, provided that the lien of the Seller shall continue despite the commencement of proceedings or judgement for the price having been obtained.
  14. General
    1. If any provision of these terms and conditions shall be invalid, void or illegal or unenforceable the validity existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
    2. All Goods and Services supplied by the Seller are supplied subject to the laws of New Zealand and the Seller takes no responsibility for changes in the law that affect the Goods and Services supplied.
    3. The Seller shall be under no liability whatsoever to the Buyer for any indirect loss and/or expense (including loss of profit) suffered by the Buyer arising out of a breach by the Seller of these terms and conditions.
    4. In the event of any breach of this contract by the Seller the remedies of the Buyer shall be limited to damages. Under no circumstances shall the liability of the Seller exceed the price of the Goods and Services.
    5. Neither party shall be liable for any default due to any act of God, terrorism, war, strike, lock out, industrial action, flood, storm or other event beyond the reasonable control of either party.
    6. The Buyer shall not set off against the price for the Goods and Services amounts due from the Seller.
    7. The Seller may license or sub-contract all or any part of its rights and obligations without the Buyer’s consent.