Terms and Conditions of Sale

Terms and Conditions of Sale

1. DEFINITIONS
In these Terms: “Agreement” means any agreement for the provision of goods by the Supplier to the Customer; “CGA” means the Consumer Guarantees Act 1993 as amended; “Consumer” is a person who acquires the goods, other than a person who acquires the goods for the purpose of resupplying them in trade or using them in the course of a process of production or manufacture; “Customer” means the person named on the first page of this Agreement; “Delivery Address” means the delivery address specified on the front page of the Agreement; “FTA” means the Fair Trading Act 1986, as amended; “Goods” means the goods supplied, or to be supplied, by the Supplier to the Customer; “GST” means tax imposed on the supply of goods and services under the Goods and Services Tax Act 1985, as amended; “layby sale agreement” is defined in the FTA; “PPSA” means the Personal Property Securities Act 1999, as amended; “Privacy Act” means the Privacy Act 2020, as amended; “Supplier” means Smart Laybuy Limited; “Terms” means these Terms and Conditions of Sale; and “Unsolicited Direct Sale” means a sale for the supply of goods between a supplier and a consumer made as a result of negotiations at a place other than the Supplier’s place of business (including at a consumer’s home or workplace or by telephone) where the price paid or payable is more than $100 or cannot be ascertained at the time of supply.

2. TERMS
2.1 The Terms apply exclusively to each Agreement and cannot be varied or replaced by any other terms except in writing signed by the Supplier.
2.2 The Terms continue to apply to each Agreement until they are replaced by the Supplier.

3. CANCELLATION
3.1 If the Customer is a consumer: (a) the Customer may cancel the Agreement by written notice to the Supplier within 5 working days after a copy of this Agreement is provided to the Customer, in which case the Supplier will immediately repay to the Customer all amounts paid to the Supplier under the Agreement; (b) the Customer may cancel the Agreement at any time before taking possession of the goods, by giving notice to the Supplier in any way that shows the intention of the Customer to cancel or withdraw from the Agreement and clause 3.3 will apply.
3.2 The Supplier may cancel the Agreement if: (a) the Customer has breached a material term of the Agreement, and clause 3.3 will apply; or (b) owing to circumstances beyond the control of the Supplier, the goods are no longer available and no satisfactory substitute goods can be reasonably obtained, and clause 3.6 will apply; or (c) the Supplier has ceased trading (other than as a result of receivership, liquidation or voluntary administration) and clause 3.6 will apply.
3.3 The Customer may be charged a cancellation fee if the Supplier has not breached the Agreement and the Customer cancels in accordance with clause 3.1(b), or the Supplier cancels in accordance with clause 3.2(a).
3.4 Upon cancellation of the Agreement in accordance with clause 3.1(b) or 3.2(a): (a) the Supplier will immediately repay to the Customer all amounts paid to the Supplier under the Agreement, less any cancellation fee; and (b) if the amounts to be repaid are insufficient to cover the cancellation fee, the Supplier may pursue the Customer for the balance of the cancellation fee.
3.5 The cancellation fee referred to in clause 3.3 will be an amount equal to the reasonable costs incurred by the Supplier arising from the Agreement and its cancellation and may include, for example, loss in value of the goods, costs incurred in storing and insuring the goods, administration costs, credit card and banking costs, and selling costs.
3.6 If this Agreement is cancelled in accordance with clauses 3.1(a), 3.2(b), 3.2(c), 4.2 or 13.1, the Customer will be entitled to a refund of all amounts paid under the Agreement to the Supplier.

4. SUSPENSION
4.1 If the Supplier is unable to supply the goods, it may suspend the Agreement at any time by written notice to the Customer.
4.2 If the Customer receives notice of suspension in accordance with clause 4.1, the Customer may cancel the Agreement by giving written notice to the Supplier at any time before the Supplier notifies the Customer that the suspension has ceased, and clause 3.6 will apply.

5. PRICE
5.1 The total price of the goods is set out on the first page of the Agreement (or confirmed on the Smartlaybuy order). The price includes GST.

6. PAYMENT
6.1 Unless otherwise agreed in writing, the Customer must pay for the goods in full before delivery of the goods.
6.2 Payments must be made in accordance with the frequency and dates of the Smartlaybuy (layby) payment plan chosen by the Customer and confirmed in the Agreement or at checkout. Payments must clear before goods are released for delivery.
6.3 Payments are processed via Airwallex (or other payment provider nominated by the Supplier).
6.4 The time for payment is of the essence.

7. PASSING OF PROPERTY
7.1 Until the Supplier receives full payment in cleared funds for the goods supplied by it to the Customer, as well as all other amounts owing to the Supplier by the Customer: (a) title and property in the goods remain with the Supplier; (b) the Supplier will continue to hold the goods; (c) the Customer must not purport to sell, encumber or dispose of the goods; and (d) the Customer acknowledges that the Supplier has a security interest (as defined in the PPSA) in the goods until the goods are paid for in full and delivered.

8. RISK AND INSURANCE
8.1 Risk in the goods and all insurance responsibility for theft, damage or otherwise will pass to the Customer immediately on the earlier of the goods being delivered to the Delivery Address or the Customer taking possession of the goods.
8.2 The Customer assumes all risk and liability for loss, damage or injury to persons or to property of the Customer, or third parties, arising out of the use, installation or possession of any of the goods.

9. DELIVERY
9.1 Any period or date for delivery of goods stated by the Supplier is an estimate only and not a contractual commitment. The Supplier will not be liable for any loss or damage suffered by the Customer for failure to meet any estimated delivery date.
9.2 The Customer is responsible for ensuring the Delivery Address is correct and that the person who receives the goods at the Delivery Address is aged over 18 and entitled to accept delivery. The Supplier’s delivery record or a courier tracking confirmation is prima facie proof of delivery.
9.3 Subject to clause 9.4, the Supplier will arrange for delivery of the goods to the Delivery Address, and the Supplier may choose the method of delivery.
9.4 If the Supplier arranges for delivery of goods by a manufacturer or other third party, the Customer will be subject to that manufacturer’s or third party’s terms and conditions of delivery.
9.5 Unless otherwise stated, the Customer is responsible for all costs associated with delivery of the goods, including freight and insurance, as communicated at checkout or in the Agreement.
9.6 The Supplier may make part delivery of goods ordered and invoice the Customer for that part delivery.
9.7 The Customer indemnifies the Supplier against any loss or damage suffered by the Supplier as a result of delivery, except where the Customer is a consumer and the Supplier has not used due care and skill.
9.8 If the Supplier attempts to deliver the goods and delivery cannot be completed for any reason (other than the Supplier’s fault), the Customer is liable for the cost of redelivery and any reasonable storage charges incurred by the Supplier.
9.9 If it is agreed that the Customer will collect the goods, the Customer must collect the goods within 7 days of being advised that the goods are available for collection. If the Customer fails to do so, the Supplier may charge reasonable storage charges and/or cancel the Agreement in accordance with clause 3.2(a).
9.10 The Customer is responsible for ensuring that the Delivery Address is accessible for delivery.
9.11 The Customer is responsible for the assembly and installation of the goods unless otherwise agreed in writing with the Supplier.

10. RETURNS
10.1 The Customer must inspect the goods immediately on the earlier of delivery or taking possession of the goods.
10.2 Subject to the Customer’s rights under the CGA and FTA, the Supplier will not be liable for any claim unless the Customer notifies the Supplier by email to info@smartlaybuy.com with full details of the claim within 7 days of the matters giving rise to the claim becoming apparent.
10.3 To return goods: (a) the Customer must first obtain a returns authorisation from the Supplier; (b) goods should be returned in their original condition and packaging where practicable; (c) the Customer is responsible for the cost of return freight unless the Supplier is liable for the return (for example, where goods are faulty); and (d) the Customer is responsible for loss or damage to the goods in transit until received by the Supplier.
10.4 The Supplier may refuse to accept return of goods that: (a) were specially ordered or custom-made for the Customer; (b) are no longer stocked or have been discontinued; (c) have been altered, used, misused, or damaged by the Customer’s negligence; or (d) are not in their original condition and packaging (where that is reasonably required).

11. WARRANTY
11.1 The Supplier warrants, for a period of 3 months from the earlier of delivery or the Customer taking possession of the goods, that the goods are free from substantive defects in workmanship and materials.
11.2 Except as specifically stated in these Terms, and to the extent permitted by law, all other warranties (whether express or implied) are excluded.
11.3 For goods not manufactured by the Supplier, the Supplier will, where available, pass on to the Customer the benefit of any manufacturer’s warranty.

12. LIABILITY
12.1 To the extent permitted by law, the Supplier’s liability for any claim relating to the goods or the Agreement is limited, at the Supplier’s option, to: (a) repair of the goods; (b) replacement of the goods or supply of equivalent goods; or (c) refund of the price paid for the goods.
12.2 The Supplier’s aggregate liability under or in connection with the Agreement is limited to the price paid by the Customer for the relevant goods.
12.3 To the extent permitted by law, the Supplier is not liable for any indirect, consequential, special or incidental loss or damage (including loss of profits, revenue, data or business opportunity).
12.4 Nothing in these Terms excludes, restricts or modifies any right or remedy, or any guarantee, warranty or other term or condition, implied or imposed by the CGA or FTA which cannot lawfully be excluded or limited. Where the Customer is a consumer, the Customer’s rights under the CGA apply in addition to these Terms.
12.5 Where the Customer acquires the goods in trade, the parties agree that the CGA does not apply and, to the maximum extent permitted by law, they contract out of sections 9, 12A, 13 and 14(1) of the FTA.

13. FORCE MAJEURE
13.1 The Supplier will not be liable for any failure or delay in performing its obligations under the Agreement to the extent that failure or delay is caused by events beyond the Supplier’s reasonable control (including, without limitation, acts of God, natural disaster, epidemic, war, terrorism, riot, industrial action, failure of suppliers or carriers, or interruption of power or communications). The Supplier may suspend or cancel the Agreement by written notice if such an event occurs, in which case clause 3.6 will apply.

14. PRIVACY
14.1 The Supplier collects, stores and uses personal information about the Customer for the purposes of supplying goods, administering Smartlaybuy accounts and agreements, processing payments, communicating with the Customer, and otherwise performing the Agreement, in accordance with the Privacy Act.
14.2 Subject to the Privacy Act, the Supplier may: (a) use personal information for account servicing and, where the Customer has consented or not opted out, for marketing of the Supplier’s products and services; (b) disclose personal information to payment providers, delivery partners, related companies, credit reporters and debt collection agencies where reasonably necessary; and (c) use personal information to assess creditworthiness where permitted by law.
14.3 The Customer may request access to, and correction of, personal information held by the Supplier by contacting info@smartlaybuy.com.

15. DISPUTES
15.1 If a dispute arises in connection with the Agreement, the parties will first engage in good faith discussions to attempt to resolve the dispute before commencing legal proceedings (except where urgent interlocutory relief is sought).

16. GENERAL
16.1 If goods are delivered outside New Zealand, the Customer is responsible for compliance with local laws and for all import duties, taxes and charges.
16.2 A failure by the Supplier to enforce any provision of these Terms is not a waiver of that provision or of any other right.
16.3 The Supplier may assign or novate its rights and obligations under the Agreement without the Customer’s consent. The Customer may not assign its rights or obligations without the Supplier’s prior written consent.
16.4 Nothing in the Agreement transfers any intellectual property rights in the goods or related materials except as expressly provided.
16.5 If any provision of these Terms is invalid or unenforceable, it is to be read down or severed to the extent necessary and the remaining provisions continue in full force.
16.6 Notices under the Agreement may be given by email or post to the addresses set out in the Agreement (or updated in writing).
16.7 These Terms and each Agreement are governed by the laws of New Zealand. The parties agree to the exclusive jurisdiction of the courts of Auckland.