Terms & Conditions
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.
CUSTOMER ACCOUNT TERMS
- Unless the Customer has a valid credit account with Smail & Co, payment for the Goods (together with any other amounts owing to Smail & Co) must be made by cash, cheque or electronic funds transfer in cleared funds prior to delivery.
- The Customer is liable for all purchases made in its account name. It is not the responsibility of Smail & Co to confirm authority for the purposes of supplying or delivering Goods to the Customer or its agents. It is the sole responsibility of the Customer to ensure there is no unauthorised use of its account.
- Smail & Co may at any time withdraw, suspend or alter the Customer’s credit facilities at any time without notice at its sole discretion. Any such change to the Customer’s credit facilities will not release either the Customer or the Guarantor(s) from any liability whatsoever.
QUOTATIONS/ESTIMATES AND ORDERING
- A quotation or estimate will not constitute an offer to sell Goods to the Customer. No contract for the supply of Goods shall exist between Smail & Co and the Customer until a Customer’s order for Goods has been accepted by Smail & Co (such acceptance of Customer’s orders may be made and communicated by Smail & Co in writing, orally or by an overt act of acceptance).
- All quotes, estimates and pricing, unless expressly stated otherwise, are deemed to be estimates only and are based on rates and charges in effect at the date of issue. Any increase in the costs of any items (including change in currency exchange rates) affecting the cost of supply, production and/or delivery of the Goods will be added to the price of the Goods payable by the Customer. At its discretion, Smail & Co may remove any discount provided in an estimate or order where there is a reduction in quantities actually purchased.
- The Customer may only cancel an order if the Customer provides reasonable written notice (which may be by email to the email address of an authorised representative of Smail & Co) of such cancellation prior to delivery of the Goods and the Goods form part of Smail & Co’s standard stock in trade and are not special orders or an item manufactured for the Customer.
- If the Customer requires a variation to an order (including for any changes in quantities, measurements or specifications or as a result of any inaccuracies or misstatements in the information provided to Smail & Co), the Customer acknowledges such variation may result in a delay in delivery of the Goods or an increase in the price specified in the order.
- Goods are offered subject to availability. Smail & Co may substitute a similar good to that ordered provided it obtains prior approval from the Customer (verbal or otherwise) prior to the time of supplying the substituted good. It is the responsibility of the Customer to ensure that any proposed substituted good is acceptable.
- The Customer is solely responsible for the accuracy of plans, specifications and information supplied by (or on behalf of) the Customer upon which a quotation/estimate/order or estimate of materials is based. All standard industry tolerances shall apply to the dimensions and measurements of Goods unless Smail & Co and the Customer agree otherwise in writing.
PRICING AND PAYMENT
- The price of the Goods will be the price current on the date of delivery of the Goods, unless otherwise expressly agreed in writing by Smail & Co.
- Unless stated otherwise in writing, all prices are exclusive of any GST.
- Smail & Co may vary its pricing from time to time without notice to the Customer. Any variation will be effective from the date specified by Smail & Co and will apply to all orders accepted by Smail & Co on or after that date.
- The price of the Goods excludes the cost of delivery, which is payable in addition to the price.
- Where purchases of Goods are charged to a valid credit account, then payment is due in full in cleared funds by the 20th day of the month following delivery (including where Goods are delivered by instalments). Smail & Co may, at its absolute discretion, and subject to additional payment terms, allow payment of a credit account by credit card.
- Any deposit required by Smail & Co will be paid immediately by the Customer upon the making of an order and, unless otherwise specified on the deposit terms, is non- refundable.
- Payment of all monies owing to Smail & Co must be made free of any counterclaim, set-off, deduction or other claim whatsoever. Smail & Co may deduct or withhold any amount (whether by way of set off, counterclaim or other equitable or lawful claim or otherwise) from any money owing by Smail & Co to the Customer on any account whatsoever.
- Smail & Co may allocate any payment made by or on behalf of the Customer to the account and/or payment of any Goods as it sees fit and the Customer waives any right to receive notification of that allocation.
- If full payment for the Goods is not made by the due date for payment, the Customer will pay, at Smail & Co’s discretion (and without prejudice to any other rights or remedies it may have), on demand, default interest on the amount outstanding at the rate of 2% per annum above the interest rate charged to Smail & Co by its bankers on its current account overdraft as at the date that the payment was due (calculated on a daily basis until the account is paid in full) and all expenses and costs (including legal costs on a solicitor and client basis) incurred by or on behalf of Smail & Co recovering or attempting to recover the overdue amount.
- Unless otherwise agreed in writing, delivery of the Goods will be deemed to have taken place upon the transfer of possession of Goods to the Customer (or its representative or carrier) at Smail & Co’s premises, or where Smail & Co has agreed to deliver the Goods, upon the unloading of Goods by Smail & Co at the curbside at the Customer’s delivery address.
- Delivery of Goods may be made by instalments. Each instalment shall be treated as a separate contract subject to these Terms.
- Any times quoted for delivery are estimates only and Smail & Co will not be liable for any delay in delivery, whether or not beyond its control. Late delivery does not entitle the Customer to cancel any order or part order or to refuse to accept delivery.
- Where Smail & Co has agreed to deliver the Goods, the Customer must provide adequate safe and unobstructed access for delivery and adequate facilities for unloading and storage of Goods (including in compliance with the Health & Safety in Employment Act 1992 and Hazardous Substances and New Organisms Act 1996, as applicable). If required by the Customer or a representative to drive on to a property, neither Smail & Co nor any of its carriers accept responsibility for any damage that may result to either the property or the Goods.
- If the Customer fails or refuses to take delivery of the Goods at an agreed delivery time, any liability or cost incurred by Smail & Co as a result of the refusal or delay in delivery shall form part of the Secured Indebtedness and shall be paid immediately by the Customer upon demand. Unless Smail & Co has agreed to deliver the Goods, any Goods not uplifted by the Customer after 90 days of delivery may be sold or otherwise disposed of by Smail & Co and all sale proceeds may be retained by Smail & Co without any obligation to account to the Customer. Where the Customer is uplifting the Goods, it must ensure that it and its employees and agents comply with all Smail & Co health and safety policies made known to it by Smail & Co from time to time.
- The Goods must be checked by the Customer on delivery and once the customer has signed to confirm receipt of the Goods then no claim can be made by the Customer in relation to any damage to the Goods. Where for any reason the Goods are delivered without the Customer signing to confirm receipt then the Goods will be deemed accepted upon delivery unless the Customer notifies Smail & Co in writing of any defects, errors or discrepancies within 7 days of delivery, provided Smail & Co is able to inspect the Goods to confirm the defect, error or discrepancy.
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.
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:
- Proof of purchase (such as invoice or receipt) must be provided by the initial purchaser. This warranty is not transferable.
- All Bath Co installation instructions must have been strictly followed and the product must have been installed in accordance with the relevant New Zealand Building/Plumbing Codes by a certified building or plumbing practitioner (as appropriate for the product).
- The product must not have been subject to excessive wear and tear. The warranty only covers normal use and typical wear and tear.
- The product must not have been tampered with or repaired in any way other than in accordance with this warranty.
- The product must not have been damaged by misuse, accident or neglect, including water damage, sunlight, excessive water temperature, humidity, direct lighting or other adverse environmental conditions.
- Harsh detergents or abrasive cleaners must not have been used on the product and the product must be cleaned in accordance with the recommended cleaning methods.
- All warranty covered repair work is to be performed by Smail & Co but Smail & Co shall not be responsible for the cost of removal or installation of the product.
- Smail & Co shall make the final determination on any issue or uncertainty regarding the application of this warranty
- 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.
RISK AND TITLE
- Ownership of the Goods (whether or not any of the Goods have been paid for by the Customer) shall not pass to the Customer until the Customer has paid all of the Secured Indebtedness and all the Customer’s obligations to Smail & Co in respect of the Goods or otherwise have been met.
- Until ownership of the Goods passes to the Customer, the Customer must:
(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.
- The risk of any loss or damage to, or deterioration of, the Goods due to any cause whatsoever will pass to the Customer on delivery. If any Goods are damaged or destroyed prior to risk passing to the Customer, Smail & Co may promptly repair the Goods or cancel the order in respect of those Goods without penalty or compensation to the Customer.
- If the Customer fails to pay for the Goods in full by the due date for payment, or if Smail & Co considers the Goods are “at risk” (in accordance with the PPSA) Smail & Co may (in addition to any other rights or remedies it may have) enter the Customer’s premises (or any other premises which the Customer has access to and where the Goods are stored) at any time, without notice, to view the Goods and to remove the Goods and may resell the Goods or retain the Goods for the benefit of Smail & Co, without incurring any liability to any person. The Customer may not revoke the permission granted in this clause.
SECURITY AND PERSONAL PROPERTY SECURITIES ACT
- 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
- 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 to Smail & Co (such personal property and real property is together the “Secured Property”).
The Customer undertakes:
- 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
- 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.
- 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.
- 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.
- 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:
- 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;
- 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
- where Smail & Co’s has rights in addition to Part 9 of the PPSA, those rights will continue to apply.
- 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.
- The Customer must not:
- 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).
- give to Smail & Co a written demand, requiring a financing change statement to be registered; or
- lodge a change demand in relation to a financing statement registered by Smail & Co under the PPSA.
- 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.
- If, at any time and for any reason, an Event of Default occurs, then (without prejudice to any other remedies Smail & Co may have):
- 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;
- Smail & Co may delay delivery of any Goods until the matter is resolved to Smail & Co’s satisfaction;
- the Secured Indebtedness will become immediately due and payable;
- each security interest created under these Terms will become immediately enforceable;
- 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;
- 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
- 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.
- 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.
- 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.
- 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.
- 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.
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.
INDEMNITY AND SUPPORTING GUARANTEE
- The Customer hereby indemnifies Smail & Co, its employees, officers, agents, any Receivers and any Attorney appointed (“Indemnified Parties”) against all losses, liabilities, damages, claims, actions costs or expenses (including legal and solicitor/client costs and expenses) which the Indemnified Parties (or any one of them) may incur, of which have been made against any of the Indemnified Party as a result of or in relation to:
- (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.
- If the Customer is a company, then unless otherwise agreed by Smail & Co, it must procure that a guarantee in the form required by Smail & Co is executed and returned to Smail & Co as soon as possible.
- Smail & Co may at any time collect, hold and use information relating to this credit application for any purpose connected with its business including (but not limited to) direct marketing by email or otherwise, debt recovery, credit reporting or assessment, and to register any security interest, including collecting information from, and disclosing information to, external credit reporting agencies, debt collection agencies, trade referees and other third parties. Information disclosed by Smail & Co to credit reporting agencies will be disclosed on the basis that it will be held and used by such agencies to provide credit reporting services. Under the Privacy Act 1993, individuals have rights to access to, and request correction of, their personal information by contacting the Smail & Co store where the Customer holds an account.
- The Customer, any director signing on behalf of the Customer and any Guarantor authorises Smail & Co to collect, hold and use information from any person or entity for any of the above purposes, and for such person or entity to disclose information to Smail & Co, and the Customer further authorises Smail & Co to disclose information to any person or entity for any of the above purposes and such person or entity to collect, hold and use information from Smail & Co.
- 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.
- The Customer may not directly or indirectly assign to any person any of its benefits or burdens in respect of the contract created by these Terms. Smail & Co may at any time assign or transfer to any other person (whether or not acting as a security agent or security trustee of the security created under these Terms) all or any part of its rights, remedies and obligations under these Terms and any related or ancillary document without the Customer’s consent.
- Each provision of these Terms survives to the extent unfulfilled, and remains enforceable and does not merge, on performance of another provision.
- No delay or failure to act is a waiver. No waiver is effective unless it is in writing. Any waiver of a breach so given, is not a waiver of any other breach.
- Smail & Co is not liable for any failure or delay in performing an obligation in these Terms if it is due to a cause reasonably beyond its control.
- These Terms and each and any security interest created under it will not be discharged, nor will the obligations of the Customer be affected or restricted in any way whatsoever, by any time, indulgence, waiver or consent given by Smail & Co.
- Any notice or other communication to the Customer may be served by delivery at the Customer’s email or physical account address, any other address specified by the Customer from time to time for such purposes or the Customer’s usual residential address (if an individual) or otherwise the Customer’s principal place of business or registered office.
- These Terms will be governed by the laws of New Zealand. The Customer irrevocably agrees to submit to the non-exclusive jurisdiction of the New Zealand courts.
- The illegality, invalidity or unenforceability of a provision of these Terms will not affect the legality, validity or enforceability of another provision.
DEFINITIONS AND INTERPRETATION
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
(iii) the Customer commits an act of bankruptcy;(iv) The Customer’s ownership or effective control is transferred without Smail & Co’s consent;
(v) if the Customer: A: becomes insolvent or is unable to pay its debts as they fall due or is deemed or presumed to be so under any law; B: makes, or proposes to make, an assignment, arrangement, composition or compromise with, for the benefit of, or affecting its creditors in relation to any of its indebtedness; or C: a receiver, liquidator, trustee, manager, administrator or statutory or official manager or similar officer is or has been appointed in respect of the Customer or over all or any of the Customer’s assets;
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.