histats

1. Definitions
1.1 “Seller” shall mean Smart Caller NZ (2001) Limited and its successors and assigns.
1.2 “Client” shall mean the Client or any person acting on behalf of and with the authority of the Client.
1.3 “Guarantor” means that person (or persons), or entity that agrees herein to be liable for the debts of the Client on a principal debtor basis.
1.4 “Goods” shall have the same meaning as in section 2 of the Sale of Goods Act 1908 and are goods supplied by the Seller to the Client (and where the context so permits shall include any supply of Services as hereinafter defined).
1.5 “Services” shall mean all services supplied by the Seller to the Client and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined supra).
1.6 “Price” shall mean the cost of the goods as agreed between the Seller and the Client subject to clause 4 of this contract.

2. Acceptance
2.1 Any instructions received by the Seller from the Client for the supply of Goods shall constitute acceptance of the terms and conditions contained herein.
2.2 Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all payments of the Price.
2.3 Upon acceptance of these terms and conditions by the Client the terms and conditions are irrevocable and can only be rescinded in accordance with these terms and conditions or with the written consent of the manager of the Seller.
2.4 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.
2.5 The Client undertakes to give the Seller not less than seven (7) days prior written notice of any proposed change in the Client’s name and/or any other change in the Client’s details (including but not limited to, changes in the Client’s address, facsimile number, or business practice).
2.6 That for the purposes of the Construction Contracts Act 2002 this contract is not a commercial construction contract or a construction contract whether for a commercial or residential property or work and devise liability under this contract shall be in no way limited by any contract that the Client may have entered into with a third party in relation to the supply of Goods and/or Services to that third party or the payment by the third party to the Client of any monies whether by progress payments or otherwise.

3. Goods / Services
3.1 The Goods and/or Services are as described on the invoices, quotation, work authorisation or any other work commencement forms as provided by the Seller to the Client.

4. Price And Payment
4.1 At the Seller’s sole discretion;
(a) The Price shall be as indicated on invoices provided by the Seller to the Client in respect of Goods supplied; or
(b) The Price of the Goods and services shall be the Seller’s quoted Price, which shall be binding upon the Seller provided that the Client shall accept in writing the Seller’s quotation within thirty (30) days.
4.2 At the Seller’s sole discretion a deposit may be required. The deposit amount or percentage of the Price will be stipulated at the time of the order of the Goods/Services and shall become immediately due and payable.
4.3 Time for payment for the Goods shall be of the essence and will be stated on the invoice, quotation or any other order forms. If no time is stated then payment shall be on delivery of the Goods.
4.4 At the Seller’s sole discretion, payment for approved Clients shall be made by instalments in accordance with the Sellers delivery/payment schedule.
4.5 At the Seller’s sole discretion, for certain approved Clients payment will be due seven (7) days following the date of the invoice.
4.6 At the Seller’s sole discretion, payment for approved Clients shall be due on 20th each month following the posting of a statement to the Client’s address or address for notices.
4.7 Payment will be made by cash, or by cheque, or by bank cheque, or by direct credit, or by any other method as agreed to between the Client and the Seller.
4.8 The Price 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. Delivery Of Goods
5.1 Delivery of the Goods shall be made to the Client’s address. The Client shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery.
5.2 Delivery of the Goods to a carrier, either named by the Client or failing such naming to a carrier at the discretion of the Seller for the purpose of transmission to the Client, is deemed to be a delivery of the Goods to the Client.
5.3 The costs of carriage and any insurance which the Client reasonably directs the Seller to incur shall be reimbursed by the Client (without any set-off or other withholding whatever) and shall be due on the date for payment of the Price. The carrier shall be deemed to be the Client’s agent.
5.4 The Seller may deliver the Goods by separate instalments (in accordance with the agreed delivery schedule). Each separate instalment shall be invoiced and paid for in accordance with the provisions in this contract of sale.
5.5 Delivery of the Goods to a third party nominated by the Client is deemed to be delivery to the Client for the purposes of this agreement.
5.6 The failure of the Seller to deliver shall not entitle either party to treat this contract as repudiated.
5.7 The Seller shall not be liable for any loss or damage whatsoever due to failure by the Seller to deliver the Goods (or any of them) promptly or at all.

6. Risk
6.1 If the Seller retains property in the Goods nonetheless all risk for the Goods passes to the Client on delivery.
6.2 If any of the Goods are damaged or destroyed prior to property in them passing to the Client, the Seller is entitled, 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.

7. Defects/Returns
7.1 The Client shall inspect the Goods on delivery and shall within twenty one (21) days of delivery notify the Seller of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford the Seller or the Seller’s agent an opportunity to inspect the Goods within a reasonable time following delivery if the Client believes the Goods are defective in any way. If the Client shall fail to comply with these provisions the Goods shall be conclusively presumed to be in accordance with the terms and conditions and free from any defect or damage.
7.2 For defective Goods, which the Seller has agreed in writing that the Client is entitled to reject, at the Seller’s sole discretion the Seller’s liability is limited to either replacing the Goods or repairing the Goods provided that:
(a) the Client has complied with the provisions of clause 7.1;
(b) the Goods are returned at the Clients cost within twenty one (21) days of the delivery date;
(c) the Seller will not be liable for Goods which have not been stored or used in a proper manner;
(d) the Goods are returned in the condition in which they were delivered and with all packaging material.

8. Warranty
8.1 Subject to the conditions of warranty set out in Clause 10.2 the Seller warrants that if any defect in any workmanship manufactured by the Seller becomes apparent and is reported to the Seller within three (3) months of the date of delivery (time being of the essence) then the Seller will (at the Sellers sole discretion) repair the defect or replace the workmanship.
8.2 The conditions applicable to the warranty given by Clause 8.1 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 Client to properly maintain any Goods; or
ii) Failure on the part of the Client to follow any instructions or guidelines provided by the Seller; or
iii) Any use of any Goods otherwise than for any application specified on a quote or order form; or
iv) The continued use of any Goods 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 Seller shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without the Seller’s consent.
(c) In respect of all claims the Seller shall not be liable to compensate the Client for any delay in either replacing or repairing the workmanship/Goods or in properly assessing the Clients claim.
8.3 For Goods not manufactured by the Seller the warranty shall be the current warranty provided by the manufacturer of the Goods. The Seller shall be under no liability whatsoever except for the express conditions as detailed and stipulated in the manufacturers warranty.

9. Default & Consequences Of Default
9.1 Interest on overdue invoices shall accrue from the date when payment becomes due daily until the date of payment at a compounding rate of 2.5% per calendar month and shall accrue at such a rate after as well as before any judgement.
9.2 If the Client defaults in payment of any invoice when due, the Client shall indemnify the Seller from and against all of the Seller’s costs and disbursements including on a solicitor and own client basis and in addition all of the Seller’s nominees costs of collection.
9.3 Without prejudice to any other remedies the Seller may have, if at any time the Client is in breach of any obligation (including those relating to payment), the Seller may suspend or terminate the supply of Goods to the Client and any of its other obligations under the terms and conditions. The Seller will not be liable to the Client for any loss or damage the Client suffers because the Seller exercised its rights under this clause.
9.4 If any account remains unpaid at the end of the second month after supply of the Goods or services the following shall apply: An immediate amount of the greater of $100.00 or 10.00% of the amount overdue shall be levied for administration fees which sum shall become immediately due and payable.
9.5 In the event that:
(a) any money payable to the Seller becomes overdue, or in the Seller’s opinion the Client will be unable to meet its payments as they fall due, or;
(b) the Client becomes insolvent, 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;
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client,
then without prejudice to the Seller’s other remedies at law
(i) the Seller shall be entitled to cancel all or any part of any order of the Client which remains unperformed in addition to and without prejudice to any other remedies; and
(ii) all amounts owing to the Seller shall, whether or not due for payment, immediately become due and payable.

10. Title
10.1 It is the intention of the Seller and agreed by the Client that property in the goods shall not pass until:
(a) The Client has paid all amounts owing for the particular Goods, and
(b) The Client has met all other obligations due by the Client to the Seller in respect of all contracts between the Seller and the Client, and that the Goods, or proceeds of the sale of the Goods, shall be kept separate until the Seller shall have received payment and all other obligations of the Client are met.
10.2 It is further agreed that:
(a) Until such time as ownership of the Goods shall pass from the Seller to the Client the Seller may give notice in writing to the Client to return the Goods or any of them to the Seller. Upon such notice the rights of the Client to obtain ownership or any other interest in the Goods shall cease.
(b) If the Client fails to return the Goods to the Seller then the Seller or the Seller’s agent may enter upon and into land and premises owned, occupied or used by the Client, or any premises as the invitee of the Client, where the Goods are situated and take possession of the Goods, without being responsible for any damage thereby caused.

11. Personal Property Securities Act 1999
11.1 Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that:
(a) These terms and conditions constitute a security agreement for the purposes of the PPSA; and
(b) A security interest is taken in all Goods previously supplied by the Seller to the Client (if any) and all Goods that will be supplied in the future by the Seller to the Client during the continuance of the parties relationship;
11.2 The Client undertakes to:
(a) sign any further documents and/or provide any further information, such information to be complete, accurate and up-to-date in all respects, which the Seller may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
(b) indemnify, and upon demand reimburse, the Seller for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Goods charged thereby;
(c) not register a financing change statement or a change demand without the prior written consent of the Seller;
(d) give the Seller not less than fourteen (14) days prior written notice of any proposed change in the Client’s name and/or any other change in the Client’s details (including but not limited to, changes in the Client’s address, facsimile number, or business practice); and
(e) immediately advise the Seller of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
(f) The Seller and the Client agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these Terms and Conditions.
(g) The Client waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
11.3 Unless otherwise agreed to in writing by the Seller, the Client waives its right to receive a verification statement in accordance with section 148 of the PPSA.
11.4 The Client unconditionally ratifies any actions taken by the Seller under and by virtue of the power of attorney given by the Client to the Seller under clauses 11.1 to 11.3.

12. Security & Charge
12.1 Notwithstanding anything to the contrary contained herein or any other rights which the Seller may have howsoever:
(a) Where the Client and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Client and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to the Seller or the Seller’s nominee to secure all amounts and other monetary obligations payable under the terms and conditions. The Client and/or the Guarantor acknowledge and agree that the Seller (or the Seller’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be released once all payments and other monetary obligations payable hereunder have been met.
(b) Should the Seller elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Client and/or Guarantor shall indemnify the Seller from and against all the Seller’s costs and disbursements including legal costs on a solicitor and own client basis.
(c) To give effect to the provisions of clause [11, 12.1(a) to (b)] inclusive hereof the Client and/or the Guarantor (if any) do hereby irrevocably nominate constitute and appoint the Seller or the Seller’s nominee as the Client’s and/or Guarantor’s true and lawful attorney to execute mortgages and charges (whether registerable or not) including such other terms and conditions as the Seller and/or the Seller’s nominee shall think fit in his/her/its/their absolute discretion against the joint and/or several interest of the Client and/or the Guarantor in any land, realty or asset in favour of the Seller and in the Client’s and/or Guarantor’s name as may be necessary to secure the said Client’s and/or Guarantor’s obligations and indebtedness to the Seller and further to do and perform all necessary and other acts including instituting any necessary legal proceedings, and further to execute all or any documents in the Seller’s absolute discretion which may be necessary or advantageous to give effect to the provisions of this clause.

13. Intellectual Property
13.1Where the Seller has designed or drawn Goods for the Client, then the copyright in those designs and drawings shall remain vested in the Seller, and shall only be used by the Client at the Seller’s discretion.
13.2Conversely, in such a situation, where the Client has supplied drawings, the Seller in its sale conditions may look for an indemnity (the specifications and design of the Goods (including the copyright, design right or other intellectual property in them) shall as between the parties be the property of the Seller).

14. Cancellation
14.1 The Seller may cancel these terms and conditions or cancel delivery of Goods and Services at any time before the Goods are delivered by giving written notice. On giving such notice the Seller shall promptly repay to the Client 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.
14.2 At the Sellers sole discretion the Client may cancel delivery of Goods and/or Services. In the event that the Client cancels delivery of Goods and/or Services the Client shall be liable for any costs incurred by the Seller up to the time of cancellation.

15. Privacy Act 1993
15.1 The Client and the Guarantor/s (if separate to the Client) authorises the Seller to collect, retain and use any information about the Client, for the purpose of assessing the Clients creditworthiness or marketing any Goods and Services provided by the Seller to any other party.
15.2 The Client authorises the Seller to disclose any information obtained to any person for the purposes set out in clause 15.1
15.3 Where the Client is a natural person the authorities under (clause 15.1 & 15.2) are authorities or consents for the purposes of the Privacy Act 1993.

16. Clients Disclaimer
16.1 The Client hereby disclaims any right to rescind, or cancel the contract or to sue for damages or to claim restitution arising out of any misrepresentation made to him by any servant or agent of the Seller and the Client acknowledges that he buys the Goods relying solely upon his own skill and judgement and that the Seller shall not be bound by nor responsible for any term, condition, representation or warranty other than the warranty given by the Manufacturer which warranty shall be personal to the Client and shall not be transferable to any subsequent Client.

17. Contractual Remedies Act
17.1 The provisions of the Contractual Remedies Act 1979 shall apply to this contract as if Section 15(d) of the Act which states that nothing in the Act shall affect the Sale of Goods Act 1908, were omitted from the Contractual Remedies Act 1979.

18. Consumer Guarantees Act 1993
18.1 This agreement is subject, in all cases except where the Client is contracting within the terms of a trade/business (which cases are specifically excluded), to the provisions of the Consumer Guarantees Act 1993.

19. Lien
19.1 Where the Seller has not received or been tendered the whole of the price, or the payment has been dishonoured, the Seller shall have:
(a) a lien on the goods;
(b) the right to retain them for the price while the Seller is in possession of them;
(c) a right of stopping the goods in transit whether or not delivery has been made or ownership has passed; and
(d) a right of resale,
(e) 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

20. Unpaid Sellers Rights To Dispose Of Goods
20.1 In the event that:
(a) the Seller retains possession or control of the Goods; and
(b) payment of the Price is due to the Seller; and
(c) the Seller has made demand in writing of the Client for payment of the Price in terms of this contract; and
(d) the Seller has not received the Price of the Goods,
then, whether the property in the Goods has passed to the Client or has remained with the Seller, the Seller may dispose of the Goods and may claim from the Client the loss to the Seller on such disposal.

21. Construction Contracts Act 2002
21.1 In the event that the Client is an owner occupier as defined by the Construction Contracts Act 2002 the Client hereby expressly acknowledges that
(a) The Seller has the right to suspend work within five (5) working days of written notice of its intent to do so if a payment claim is served on the Client, and:
(i) the payment is not paid in full by the due date for payment and no payment schedule has been given by the Client; or
(ii) a scheduled amount stated in a payment schedule issued by the Client in relation to the payment claim is not paid in full by the due date for its payment; or
(iii) the Client has not complied with an adjudicator’s notice that the Client must pay an amount to the Seller by a particular date; and
(iv) The Seller has given written notice to the Client of its intention to suspend the carrying out of construction work under the construction contract.
(b) If the Seller suspends work, it:
(i) is not in breach of contract; and
(ii) is not liable for any loss or damage whatsoever suffered, or alleged to be suffered, by the Client or by any person claiming through the Client; and
(iii) is entitled to an extension of time to complete the contract; and
(iv) keeps its rights under the contract including the right to terminate the contract; and may at any time lift the suspension, even if the amount has not been paid or an adjudicator’s determination has not been complied with.
(c) If the Seller exercises the right to suspend work, the exercise of that right does not:
(i) affect any rights that would otherwise have been available to the Seller under the Contractual Remedies Act 1979; or
(ii) enable the Client to exercise any rights that may otherwise have been available to the Client under that Act as a direct consequence of the Seller suspending work under this provision.

22. General
22.1 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.
22.2 All Goods and Services supplied by the Seller are subject to the laws of New Zealand and the Seller takes no responsibility for changes in the law that affect the Goods or Services supplied.
22.3 The Seller shall be under no liability whatsoever to the Client for any indirect loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by the Seller of these terms and conditions.
22.4 In the event of any breach of this contract by the Seller the remedies of the Client shall be limited to damages. Under no circumstances shall the liability of the Seller exceed the Price of the Goods.
22.5 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.
22.6 The Client shall not set off against the Price amounts due from the Seller.
22.7 The Seller may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
22.8 The Seller reserves the right to review these terms and conditions at any time and from time to time. If, following any such review, there is to be any change in such terms and conditions, that change will take effect from the date on which the Seller notifies the Client of such change.