SMAIL & CO TERMS & CONDITIONS OF SALE (TERMS)
Unless otherwise agreed in writing by Smail & Co (Us) where you submit a credit account application and/or order Goods from Smail & Co, you (Customer) agree the following Terms of sale shall apply to the supply of those Goods and to any quotation or estimate given, by or on behalf of Smail & Co. These Terms replace any previous arrangements or understandings relating to supply by Smail & Co to the Customer. Where any terms of the Customer’s order are inconsistent with these Terms, then these Terms will prevail. Any variations or additions to these Terms not expressly agreed in writing by Us are expressly rejected.
Goods, upon the unloading of Goods by Smail & Co at the curbside at the Customer’s delivery address.
a) Smail & Co at its absolute discretion may allow the Customer to return new Goods to Smail & Co, provided such Goods were purchased within the previous three months and remain in re-saleable condition with the exception of Goods which are not a standard in stock item of Smail & Co or Goods manufactured especially for the Customer. Where Smail & Co allows the Goods to be returned then, freight and re- stocking fees shall apply.
6. WARRANTIES AND LIABILITY
Smail & Company Limited (Smail & Co) warrants that in the manufacture of its Bath Co products only high quality workmanship and materials have been used. The following warranty applies to Bath Co products supplied to customers in New Zealand, for use in residential installations only.
Subject to the warranty conditions, in addition to any other right or remedy that the purchaser may have under any relevant consumer protection legislation, Smail & Co undertakes to either repair or replace (at its discretion) any Bath Co product if that
product contains a material defect with either materials or workmanship which arose in the course of manufacture.
In relation to the following products bathroom vanities, basins, tops, baths, toilets, showers, tapware a 5 year warranty applies to from date of purchase.
In relation to the following products shower hoses, shower heads, cartridges, mirrors, cistern fittings, wastes, toilet seats, electrical, face plates, washers, valves and shower seals a 1 year warranty applies to from date of purchase.
In relation to any Bath Co product installed in a commercial situation a 12 month warranty applies from the date of purchase. Commercial situations are defined as public washrooms, public buildings, schools, sports centres, gymnasium, hospitals, motels, hotels and retirement villages.
Smail & Co’s domestic/residential warranty and commercial warranty is subject to the following conditions:
9. If you acquired the Bath Co product in trade (or some other exception exists under the Consumer Guarantees Act 1993 (the Act)) then the Act shall not apply.
If the above conditions are not met, the warranty will be null and void.
Smail & Co shall not be liable to the purchaser for any loss, damage (direct, indirect or consequential), cost or expense incurred by the purchaser (including, without limitation, any damage to other products and/or labour costs incurred in the installation, repair or replacement of the product) other than in accordance with the above warranty, under any relevant consumer
To the fullest extent permitted by law, Smail & Co has no liability (whether statutory, in contract or tort (including negligence), or howsoever) to the Customer or any of its agents or employees for any physical, or special damage, direct loss, indirect loss, economic loss of any kind (including loss of profits and expectation loss), any other loss or costs (including legal and solicitor/client costs) caused or contributed to by Smail & Co or any of its agents or employees in respect of any Goods supplied or any quotation or estimate given. Without limiting the foregoing, Smail & Co has no responsibility or liability for any
dangerous good(s) or any contaminant, ozone depleting or hazardous substance in or emitted by any Goods.
(i) hold the Goods on trust for Smail & Co as bailee;
(ii) store the Goods safely and in such a way that clearly identifies the Goods as the sole property of Smail & Co and shall not relinquish possession or remove the Goods from the Customer’s premises except in the ordinary course of business;(iii) only use or sell the Goods in the ordinary course of business. This authority is revoked immediately if an Event of Default occurs;
(iv) insure the Goods against all usual risks for full replacement value. Any insurance claims in respect of damage to, or destruction of, the Goods are hereby assigned by the Customer to Smail & Co.
(v) disclose to Smail & Co all information reasonably required regarding the Goods and any on-sale of the Goods by the Customer;
(vi) inform Smail & Co immediately of any attempt by any third party to exercise remedies against the Goods or of any circumstances that may jeopardise Smail & Co’s interest in the Goods;
(vii) not do or allow to be done anything that might contribute to a deterioration in the value of the Goods or otherwise adversely affect Smail & Co’s security in the Goods.
(a) agrees that the retention of title in clause 7 of these Terms creates a Purchase Money Security Interest (having the meaning given to that term in the PPSA) in all present and after acquired Goods (and their Proceeds) as security for payment of the purchase price for the Goods until such amount is paid in full; and
(b) grants to Smail & Co a security interest in all of the Customer’s present and after acquired personal property (as defined in the PPSA) including a fixed charge over all the Customer’s real property, wherever situated as security for the due payment of all other Secured Indebtedness, and to secure performance of all obligations owing by the Customer
The Customer undertakes:
(c) to promptly do all things, execute all documents and/or provide any information which Smail & Co may reasonably require to enable Smail & Co to perfect and maintain the perfection of its security interests (including by registration of a financing statement); and (d) not to consent to or enter into any agreement which permits any supplier or other person to register a security interest in respect of any collateral subject to Smail & Co’s security interest, including (without limitation) the Goods (whether an accession or otherwise), which ranks in priority to Smail & Co’s rights as first ranking security holder.
(e) To further secure the Secured Indebtedness, the Customer agrees Smail & Co shall have the right, at its absolute discretion to complete and register a mortgage (in the form of the then current New Zealand Law Society all obligations mortgage) over any interest in any land owned or held by the Customer now or in the future (whether a beneficial or legal interest owned jointly or alone, and as trustee or otherwise) and/or to lodge a caveat against the title to such land and the Customer irrevocably appoints Smail & Co as its attorney for the purposes of executing and registering such mortgage and
specifically authorises Smail & Co to lodge a caveat against such land.
(f) Each security interest created under these Terms is a continuing security, notwithstanding any intermediate payments or settlements of accounts or anything else and is in addition to, and is not to be merged with any other security or guarantee expressed or intended to be security for any Secured Indebtedness or any other obligations owing by the Customer to Smail & Co.
(g) The Customer waives its rights under the PPSA to receive a copy of any verification statement, financing statement or financing change statement (as those terms are defined in the PPSA) and agrees that:
(i) as between Smail & Co and the Customer, the Customer will have no rights under (or by reference to) sections 114(1)(a), 116, 120(2), 121, 125, 129, 131, 133 and 134 of the PPSA;
(ii) to the extent permitted by law these Terms exclude any other provisions of the PPSA which may be excluded in Smail & Co’s discretion and which would otherwise confer rights on the Customer; and
(iii) where Smail & Co’s has rights in addition to Part 9 of the PPSA, those rights will continue to apply.
(h) The Customer acknowledges that is has received value as at the date of first delivery of the Goods and that Smail & Co has not agreed to postpone the time for attachment of the security interest granted to Smail & Co under these Terms.
(i) The Customer must not:
(i)change its name, address or contact details without providing Smail & Co 30 days prior written notice (which may be by email the address of an authorised Smail & Co representative).
(ii) give to Smail & Co a written demand, requiring a financing change statement to be registered; or
(iii) lodge a change demand in relation to a financing statement registered by Smail & Co under the PPSA.
(j) The Customer will, upon demand, pay all Smail & Co’s expenses and legal costs (on a
solicitor-client basis) in relation to or in connection with the registration, maintenance and enforcement of Smail & Co’s security interest.
(a) If, at any time and for any reason, an Event of Default occurs, then (without prejudice to any other remedies Smail & Co may have):
(i) Smail & Co may suspend or cancel (in whole or in part) any order created under these Terms or any other contract with the Customer by written notice to the Customer;
(ii) Smail & Co may delay delivery of any Goods until the matter is resolved to Smail & Co’s satisfaction;
(iii) the Secured Indebtedness will become immediately due and payable;
(iv) each security interest created under these Terms will become immediately enforceable;
(v) Smail & Co may at any time appoint in writing one or more Receivers (jointly and/or severally) in respect of any Secured Property who shall be entitled to exercise all rights conferred on Smail & Co under these Terms as well as at law generally and pursuant to the Receiverships Act 1993 and otherwise on such terms considered necessary or expedient by Smail & Co;
(vi)Smail & Co or a Receiver may take possession of the Goods and any other Secured Property (including Goods that have become an accession under the PPSA) and may dispose of them or retain them for the benefit of Smail & Co and for that purpose may, without notice enter directly (or through its agents) on any premises where Smail & Co reasonably believes the Goods are stored, without being liable to any person. In respect of other Secured Property Smail & Co may, in the name of the Customer or otherwise, at any time do anything and exercise any right which the Customer could do or exercise in relation to the Secured Property, including the right to take possession of, demand, collect and get in any Secured Property and deal with it in any way whatsoever including but not limited to disposing of Secured Property, cancelling any contracts, borrowing any money, taking any proceedings in the Customer’s name and settling any disputes or proceedings; and
(vii) Smail & Co may suspend all payment credit arrangements offered to the Customer immediately, without notice, until the Event of Default is remedied to Smail & Co’s satisfaction and require future orders to be paid in cash in full prior to delivery.
(b)Smail & Co does not (and will not be deemed to) undertake any of the Customer’s obligations in respect of the Secured Property by virtue of these Terms.
(c) Smail & Co is not required to marshall, enforce or apply under any security interest, guarantee or other entitlement held by Smail & Co at any time or any money or property that Smail & Co at any time holds or is entitled to hold.
(d) The remuneration of the Receiver may be fixed by Smail & Co but is payable by the Customer and forms part of the Secured Indebtedness. To the fullest extent permitted by law, a Receiver will be the agent of the Customer and the Customer will be solely responsible for that Receivers acts and defaults. Smail & Co may remove any Receiver appointed by providing that Receiver with written notice that the Receiver’s appointment has thereby ceased, whereupon the Receiver shall immediately cease to act.
(e) The Customer irrevocably appoints, and ratifies the actions or omissions of, Smail & Co, each Receiver, each nominee of Smail & Co in whose name any Secured Property is registered and each duly authorised officer or attorney of Smail & Co severally, to be its attorney (Attorney) (with full power to appoint substitutes and to sub-delegate) on behalf of the Customer and in the Customer’s name or otherwise and at its expense to complete, execute and otherwise perfect all assignments, security interests and other agreements and documents, and generally to do all other things which the Attorney may consider
necessary or expedient to secure Smail & Co the full benefit of its rights and intended rights under these Terms and any other contract with Smail & Co to secure payment of the Secured Indebtedness and performance of the Customer’s obligations to Smail & Co and any matters incidental thereto.
(f) A certificate signed by Smail & Co as to an amount due by the Customer shall be conclusive evidence of such for all purposes, including for any proceedings.
(i) any act, omission, default by the Customer or any subsequent purchaser of the Goods;
(ii) any breach of the Customer’s obligations under these Terms;
(iii) anything done or omitted to be done, or purported to be done or omitted by Smail & Co and/or a Receiver and/or an Attorney in the exercise or purported exercise of its rights under these Terms or conferred by law (and whether or not arising by reason of mistake, oversight, negligence or error of judgment);
(iv) any liability, loss or expense arising out of Smail & Co’s security interest in any of the Secured Property, or any act or omission of the Customer in respect of any circumstance which breaches or might breach any environmental law.
a) Smail & Co may vary these Terms at any time by publishing the varied terms on the Smail & Co website (www.bathco.nz). Goods ordered after the date of the publication
of the varied terms will be subject to the variation and the placing of the order shall be deemed to be an acceptance of such varied Terms.
In these Terms, unless the context requires otherwise: CGA means the Consumer Guarantees Act 1993;
Customer means the party(s) stated in the credit application form as the customer (together with its successors), or any other person whose order for the purchase of Goods is accepted by Smail & Co. If the Customer comprises more than one person, each of those person’s liability and agreement is joint and several. Where the Customer is a trust, the trustees liability shall not be limited to the assets of the trust;
Event of Default means:
(i) where the Customer fails to pay, or in Smail & Co’s opinion is likely to fail to pay, any moneys owing when due; or(ii) where the Customer breaches, or in Smail & Co’s opinion is likely to breach, any non-monetary obligations owing to Smail & Co whether under these Terms or otherwise; or
Goods means all products and hardware, supplied by Smail & Co to the Customer and in respect of each order of Goods placed by the Customer, the Goods described in the invoice issued by Smail & Co in respect of such order;
GST means any amounts levied or charged pursuant to the Goods and Services Tax Act 1985;
PPSA means the Personal Property Securities Act 1999; Proceeds has the meaning given to it in the PPSA;
Secured Indebtedness means all indebtedness, of whatever nature, which the Customer is now or at any subsequent time actually, prospectively or contingently liable to pay to Smail & Co (including, for the purposes of the PPSA, future advances under or in connection with these Terms or any related or ancillary document);
Secured Property has the meaning given in clause 8 (b); Smail & Co means Smail & Company Limited.