This is this Agreement which sets out the terms on which HOUSESMILE agrees, on the fulfilment of certain conditions, to sell to you, the person named as the Customer in the Order Form, the Products described in the Order Form.
By signing the Order Form, you agree to purchase the Products from HOUSESMILE on the terms set out in this Agreement. Once you have complied with all of your obligations under this Agreement, you will be entitled to ownership of the Products. This is a layby sale agreement.
TERMS OF AGREEMENT
1 In this Agreement:
Act means the Fair Trading Act 1986;
Agreement means this layby sale agreement which includes the Order Form and these general terms and conditions;
Cancellation Charge means the cancellation charge payable by you if you cancel this Agreement or if HOUSESMILE cancels this Agreement because: You have invoked the General Right of Cancellation [see clause 12]; or where you have breached a material term of this Agreement;
Minimum Payments means the minimum number and sum of payments required to be made before you are entitled to delivery as specified under the heading “NO. OF PAYMENTS BEFORE DELIVERY” in the Order Form;
Payments means the instalment payments of the Total Price required to be made under this Agreement as set out under the heading “Product Details” in the Order Form;
Products means the goods described as the “Products” in the Order Form and includes all attachments, accessories and parts which may at any time be comprised in, attached to, placed in or on, those goods and which are not detachable without causing any damage to the goods or are not readily separately identifiable;
“PPSA” means the Personal Property Securities Act 1999
Security Interest has the meaning given to it in section 17 of the PPSA and, for the avoidance of doubt, includes the security interest granted under this Agreement;
Order Form means the terms set on the front page of this Agreement;
Total Price means the total price payable under this Agreement for all of the Products as described as the “total price” under the heading “Product Details” in the Order Form;
HOUSESMILE we, us, and our means TECH VAULT ENTERPRISES LIMITED (NZCN: 7960098) which is the Vendor and includes any assignee, nominee or successor of HOUSESMILE’s rights in the Products and the rights and interests created under this Agreement;
you and your means the person named as “Customer” in the Order Form, and includes your successors, executors, administrators and permitted assigns, and when there are two or more people making up the “Customer”, then the term “you” and “yours” means each of those people (jointly and severally) and their respective successors, executors, administrators and permitted assigns;
A business day means a day (other than a Saturday, Sunday or public holiday) on which registered banks are open for general banking business in Auckland.
OWNERSHIP AND POSSESSION
2 Retention of title
Following delivery of the Products, you agree that until all Payments and all other moneys and obligations outstanding to HOUSESMILE under this Agreement or under any variation or modification of this Agreement (which must be in writing and signed by each of you and HOUSESMILE) have been paid or satisfied:
you will not part with possession of the Products except with HOUSESMILE‘s prior written consent which may be provided or withheld at HOUSESMILE’s discretion;
you will ensure that the Products are always kept at your address specified in the Order Form, you will not remove the Products from that address without first obtaining HOUSESMILE’s consent (which will not be unreasonably withheld);
you will notify HOUSESMILE immediately if the Products are removed from the address specified in the Order Form or otherwise taken out of your possession for any reason whatsoever, and will give full particulars of the address to which the Products have been moved to together with the details of the person who has taken possession of the Products; and
you will fully comply with the terms and conditions as set out in the remainder of this Agreement.
3 Your entitlement to delivery and possession
3.1 Subject to clause 3.2, you are entitled to delivery and possession of the Products once you have paid to HOUSESMILE the Minimum Payments, unless HOUSESMILE becomes entitled under this Agreement to inspect or repossess the Products (for example, where you breach the terms of this Agreement). If you fail to make any payment on the due date, HOUSESMILE reserves the right to increase the number of Minimum Payments required to be made by you before delivery.
3.2 HOUSESMILE will try to have the Products delivered to the address specified in the Order Form within fifteen (15) working days of HOUSESMILE receiving the last of the required Minimum Payments. Any time stated for delivery is an estimate only. HOUSESMILE will not be liable for any delay in delivery.
3.3 Possession is deemed to take place upon delivery of the Products to the address specified in the Order Form unless changed in accordance with this clause:
HOUSESMILE is only contracting to deliver the Products to that address and not any other address. If you have moved addresses and require that the Products be delivered elsewhere then you must contact us at least four weeks before the delivery date to change your delivery address. This is an optional service that HOUSESMILE is willing to provide to you but please note that in this situation, you may be liable to pay us a delivery charge which HOUSESMILE will only charge if HOUSESMILE’s costs of delivery increase as a result of your change of address and you have elected to take up this optional service.
If you do not elect the optional service referred to in clause 3.3(a), HOUSESMILE will assume your delivery address has not changed. If HOUSESMILE is unable to contact you because the information HOUSESMILE holds about you in its database is out of date, or you are not available or for any other reason HOUSESMILE is unable to make delivery to the delivery address provided, HOUSESMILE will hold the Products you have purchased (but for not longer than 6 months) until you contact HOUSESMILE and advise us of your current delivery address. Please note that holding Products for you is an optional service that we are willing to provide to you and we will charge a reasonable fee for doing so.
If you do not wish to take advantage of the optional services discussed in this clause 3.3, then you may collect the Products from our depot provided you give us at least 4 weeks’ notice of your intention to do so. There will be no additional charge to you for such arrangement in this event.
You must ensure that you are present to accept delivery of the Products during the delivery period. If a Product is damaged in transit, HOUSESMILE will arrange for a replacement Product to be provided. When you take delivery of the Products, you must examine the Products and satisfy yourself as to the condition of the Products before accepting delivery as HOUSESMILE will not be liable for damaged or missing Products (or part thereof) after delivery. All addresses need to be registered with NZ Post. Rural deliveries may need to be made to NZ Post and collected by you.
3.4 HOUSESMILE reserves the right to revise and/or discontinue any products described in its sales catalogue or shown on its website at any time without notice. By signing this Agreement, you agree and are aware that the Products specified in this Agreement may not be available from time to time, or may have limited availability. HOUSESMILE will make its best efforts to source the Products specified in this Agreement. However, if such products are not available at the time when you have made all the Minimum Payments, HOUSESMILE will not have any liability to you but HOUSESMILE may at its sole discretion substitute similar products (as to type, specifications and standard) (“Substitute Products”), and at the same price, for the Products specified in this Agreement and such Substitute Products will be subject to the terms of this Agreement as if the Substitute Products had originally been named as the Products in this Agreement. If HOUSESMILE is unable to provide you with Substitute Products, then it will refund to you all money you have paid under this Agreement within a reasonable period of time of it notifying you that it cannot provide Substitute Products.
4 The Products are at your risk: All responsibility for the Products and property in the Products passes to you when you take possession of the Products. Accordingly, you indemnify HOUSESMILE against any damage to or loss of the Products and from all legal liabilities arising out of your possession and use of the Products.
5 You must pay regular payments: You must pay to HOUSESMILE all Payments and other funds required under this Agreement in the manner specified in the Order Form and as otherwise set out in this Agreement on the due date. Time is of the essence which means that a failure to make the payments on the payment dates is essential.
6. How to make payments:
6.1 Manner and place of payment: You must make all of the payments to HOUSESMILE by direct debit authority or in such other manner as HOUSESMILE may direct you at any time during the term of this Agreement.
6.2 No set-off or deduction: All payments must be paid promptly, free of any set-off, deductions, or counterclaims.
6.3 Business day: If a payment is due on a day which is not a business day, then the due date will be the immediately preceding business day.
7. Fees and charges:
7.1 The following amounts (which are not included in the Total Price specified in the Order Form) are, or may become, payable under, or in connection with, this Agreement to the fullest extent permitted by law, if demanded by HOUSESMILE:
If you miss making a payment by direct debit, then the then current charge that our direct debit merchant charges HOUSESMILE for such missed payment;
Any fees or charges due to us as a result of you taking up any of the optional services it agrees to provide you with;
Any reasonably incurred amount of money we have to pay to debt collectors and/or credit reporting agencies as a result of asking them to pursue you for money you owe us from time to time under this Agreement;
All government charges, duties, taxes or levies associated with us supplying you with the Product under this Agreement (except any income tax that we are liable to pay for ourselves);
Any money we have to pay to manufacturers or repair companies to repair the Products if we have repossessed the Products and have needed to repair them as a result of your breaches of this Agreement;
Any money we have had to pay to a repairer who has claimed an interest in the Products which you have asked the repairer to repair but have not paid for;
Any money we have to pay to an insurance company to ensure that the Products are insured pursuant to the terms of this Agreement;
Any money we have had to pay to a third party in order to protect the warranty status of the goods where you have failed to, or where HOUSESMILE believes (in its discretion) that there is a risk you will fail to.
7.2 If this Agreement is cancelled (under the terms of this Agreement) the Cancellation Charge.
8. Maintenance of Products
Without limiting the generality of clause 4, immediately upon you taking possession of the Products:
8.1 Maintenance: You must, at your expense, maintain the Products in good working order and condition (fair wear and tear excepted), ensuring that they are properly operated and maintained strictly in accordance with the manufacturer’s or supplier’s operating instructions, and serviced by an authorized service agent (where the manufacturer’s or supplier’s instructions recommend service maintenance). You must also ensure that the Products are always used in a manner that prevents them from being damaged or lost or which otherwise may cause injury to a person.
8.2 Notification of theft, damage and repairs: If for any reason the Products are stolen, damaged, require repairs, and/or are involved in an accident, you must immediately notify us of the details of the theft, damage, repairs required, or accident and also provide us with photographic evidence of any damage.
8.3 Repair costs & Stolen Products: HOUSESMILE does not accept any responsibility for repair costs or the cost of replacing the Products in the event they are damaged or stolen while they are in your possession. In the event of damage or theft of the Products, you are not released from your obligations to make the payments required under this Agreement.
8.4 Arranging Repair on your behalf – optional service: If you elect, we will arrange for the pickup of any damaged Products and send them to our approved repair agencies for checking whether the Product is capable of repair and, if so, we will arrange for the repair of the Products on your behalf. This is an optional service that we are willing to provide you and as such, if you elect to take up this optional service, then you must pay us the amount we state is required prior to us agreeing to arrange for the pickup and repair inspection of the Products. The actual costs of repair and delivery of the Product back to you will be payable by you before we instruct our approved repair agency to repair the Products and again before we instruct our approved delivery agency to deliver the repaired Product to You.
8.5 Protection from seizure: You must keep the Products in a safe place and take all reasonable care to protect the Products against any form of seizure by a third party. If the Products become subject to any form of seizure, you must immediately pay all amounts owing to HOUSESMILE under the terms of this Agreement.
8.6 No sale, disposal or modification of Products without consent: Until you have paid all monies owing to HOUSESMILE under this Agreement, you must not:
sell, lend, lease, transfer, grant any Security Interest in or otherwise deal with the Products (or even attempt to do so) without first obtaining our written consent which we can decide to give or withhold at our complete discretion;
conceal or modify any part of the Products including any identifying number, mark or any accessories of the Products;
use or install a Product in a manner that would lead to it becoming a fixture to land or an accession to any other good (as defined in the PPSA).
9. You must not allow Security Interests:
You must not create or allow to be created a Security Interest over the Products, other than a Security Interest in favour of HOUSESMILE. You must notify any potential repairer that you are prohibited by this Agreement from creating a Security Interest over the Products and that you are unable to pledge any credit on our behalf. If a Security Interest is created over the Products in breach of this Agreement, HOUSESMILE may pay the holder of the Security Interest the amount necessary to discharge it and HOUSESMILE may recover any such costs from you in accordance with clause 7 (Fees and charges).
You must at your own expense immediately and before taking possession of the Products arrange for a comprehensive insurance cover over the Products for their full replacement value. The insurance cover identify HOUSESMILE’s as secured party and your name as owner and you must maintain that insurance cover (including the payment of all premiums) for the full duration of this Agreement. If required by HOUSESMILE, you must provide HOUSESMILE with details and evidence of the insurance cover. You must not let cover be cancelled or refused. If you do, HOUSESMILE may take any action to preserve the insurance cover and you will indemnify HOUSESMILE for the cost to HOUSESMILE in doing so, as required by clause 7 (Fees and charges).
11. You will indemnify HOUSESMILE
You will indemnify HOUSESMILE against:
Any loss under this Agreement being the difference between the Total Price (plus any of the fees and charges payable under clause 7) less the money you have actually paid us to date if you do not pay the monies due under this Agreement when due; and
Its actual third party costs associated with enforcing the terms of this Agreement against you such as (but not limited to) debt collector’s fees, credit reporting agency fees, dispute tribunal fees and court fees.
12. Cancellation/Termination of this Agreement:
12.1 You may cancel this Agreement:
Within 5 working days after the date you have been provided with a copy of this Agreement (“The 5 Working Day Cancellation”); and/or
At any time before you take possession of the goods (“The General Right of Cancellation”).
You can notify us of your intention of cancel as above by advising us of this verbally or in writing.
12.2 HOUSESMILE may cancel this Agreement at any time by giving you notice to that effect in any of the following situations:
you have breached a material term under this Agreement; or
where in circumstances outside of HOUSESMILE’s control the Products are no longer available by the Delivery time and no suitable substitute can be found; or
HOUSESMILE has ceased trading; or
if any of the following events happen which are material terms of this Agreement (each an “Event of Default”):
(i) you fail to comply with your obligations under clause 8 (Maintenance of Products), or you do or omit to do anything that prejudices HOUSESMILE‘s rights in the Products or this Agreement; or
(ii) you are unable to arrange or maintain insurance of the Products; or
(iii) any Products are destroyed or damaged to such an extent that the Products must be written off as a total loss, or any Products are stolen and are not recovered, or are taken from you or your address by operation of law; or
(iv) you commit an act of bankruptcy or you are adjudicated bankrupt or die, or you have a receiver and/or manager or administrator appointed in respect of any of your assets, or you enter into any compromise or arrangement with your creditors (whether formally or not), or you are convicted of an indictable offence or sentenced to imprisonment; or
(v) you sell or part with the Products or a major part of the Products without our prior written consent (which HOUSESMILE will not refuse if you are able to obtain what we consider to be a fair and reasonable price for selling or parting with the Products); or
(vi) (vi) any lien is lawfully claimed over all or part of the Products; or
(vii) HOUSESMILE considers any Product is ‘at risk’ within the meaning of section 109 of the PPSA; or
(viii) you fail to make payments which are due under this Agreement on the agreed dates.
12.3 The Cancellation Charge will be the aggregate of the following costs, fees and charges which have arisen directly out of HOUSESMILE entering into this Agreement:
(a) a reasonable administration fee for the reasonable costs of HOUSESMILE in connection with the application by you to purchase the Products, processing and considering that application, preparing and executing this Agreement;
(b) the reasonable costs of HOUSESMILE in connection with the loss in value of the Products and the costs associated with storing and insuring the Products;
(c) all fees and charges which are payable under clause 7.
12.4 Where we cancel this Agreement for any reason other than where you have breached a material term of this Agreement, then no Cancellation Charge will be payable by you.
12.5 If you have not paid HOUSESMILE sufficient funds by way of Minimum Payments to cover the Cancellation Charge, then any remaining balance can be claimed from you as a debt owing to HOUSESMILE.
12.6 If you have paid HOUSESMILE funds by way of Minimum Payments that are in excess of the Cancellation Charge, then any difference will be refunded to you within 5 – 7 working days..
12.7 Where you invoke The 5 Working Day Cancellation, then you will not have to pay the Cancellation Charge to HOUSESMILE. 12.8 If this Agreement is cancelled, you must:
(a)permit HOUSESMILE to take possession of any Products in your possession from the address noted on the Order Form at any reasonable time requested by HOUSESMILE; and
(b)take reasonable care of the Products until HOUSESMILE takes possession of the Products (subject to section 36Q of the Act).
13. Appropriation of payments
Where you make a payment to HOUSESMILE under this Agreement, HOUSESMILE may appropriate that payment at the time of payment or at any time after the payment in reduction or repayment of such amounts outstanding under this Agreement in such manner and proportions as HOUSESMILE thinks fit. In the absence of any stipulation from HOUSESMILE to the contrary, all moneys received will be applied in payment of the balance of all payments and other amounts you owe under this Agreement.
14. Insurance proceeds
14.1 Insurance Proceeds payable to HOUSESMILE: We will be entitled to receive all money payable under the insurance referred to in clause 10 above. For that purpose, you give HOUSESMILE the power to act on your behalf to claim under the insurance policy, and to take all other necessary action in relation to that claim.
14.2 Application of insurance proceeds: We may use any amount that HOUSESMILE recover under the insurance policy in any one or more of the following ways:
(a) payment of any amounts that you owe HOUSESMILE, under this Agreement; and/or
(b) Replacing or making good any loss or other damage to the Products. If the Products are replaced, then the terms of this Agreement will apply to the replacement Products. Any excess insurance proceeds, after payment of the claims referred to above, shall be paid to you.
15. Access to Products:
You must ensure that HOUSESMILE are given full access at all reasonable times to the Products on giving reasonable notice.
16. Exercise of HOUSESMILE rights:
HOUSESMILE shall not be liable under any circumstances for any losses arising from the exercise by HOUSESMILE of any of HOUSESMILE rights, powers and remedies contained in this Agreement.
17. We may repossess the Products:
17.1 If, following delivery of the Products, you breach a material term of this Agreement, HOUSESMILE may retake possession of the Products without cancelling this Agreement.
17.2 If, under this Agreement, HOUSESMILE are entitled to possession of the Products and you do not permit us to take possession of the Products, then you agree that HOUSESMILE or HOUSESMILE’s agents may enter any place where HOUSESMILE reasonably believe the Products are (without being liable to you or anyone claiming under you) to take possession of the Products in accordance with the repossession provisions of the Credit Contracts and Consumer Finance Act 2003. You waive, release and indemnify HOUSESMILE from any liability for any damage or loss occasioned in taking possession of the Products.
18. Fixtures: You agree that the affixing of the Products whether by screws, electric leads, or wires, or by any other means to any building at the place of installation shall not operate to make the Products a fixture and our rights to repossess the Products in accordance with this Agreement shall not be affected by such affixing. To exercise our right to take possession HOUSESMILE may remove the Products by unscrewing, disconnecting, or severing, any means of affixing without being liable to you or to any person claiming by or under you for any reasonable damage caused by such removal.
19. What happens if HOUSESMILE take possession of the Products: If HOUSESMILE takes possession of the Products, HOUSESMILE may either retain them or sell them in accordance with the repossession provisions of the Credit Contracts and Consumer Finance Act 2003. If HOUSESMILE takes steps to sell the Products, this Agreement will be treated as if HOUSESMILE had ended it, even though HOUSESMILE have not given you any notice that HOUSESMILE will end it. In this case, all provisions relating to ending this Agreement will still apply. However, if HOUSESMILE take possession of the Products, but do not end this Agreement (although HOUSESMILE will still have the right to do so), HOUSESMILE may retain the Products (in which case you will still be required to make the Payments during the period HOUSESMILE retains the Products) and return them to you only if:
(a) you comply with the provisions of the post-repossession notice given to you; or
(b) HOUSESMILE are satisfied that the event(s) which led HOUSESMILE to exercise HOUSESMILE right to retake possession of the Products does not and will not prejudicially affect HOUSESMILE or the Products; and
(c) you pay any fees HOUSESMILE is entitled to charge in accordance with clause 7 (Fees and charges).
20: Detachment of other property: If at the time HOUSESMILE take possession of the Products;
(a) the Products are attached to your other property or any other property owned by a third person (other property)-, and
(b) you notify HOUSESMILE in writing of that fact before the Products are resold by HOUSESMILE in accordance with the provisions set out in clause 19 ; and
(c) the other property is separately identifiable and easily able to be detached without causing damage to the Products, then:
(i) HOUSESMILE will detach the other property and you will be entitled to collect the other property from HOUSESMILE upon payment of the costs HOUSESMILE have incurred in undertaking such detachment; and
(ii) you indemnify HOUSESMILE against all costs, liabilities and claims HOUSESMILE suffers or incurs as a result of the other property being attached to the Products.
21. Your acknowledgements: You agree that this Agreement will apply notwithstanding anything, express or implied, to the contrary contained in any purchase order, request form or invoice (however described) given by either party.
22. You may not assign this Agreement: You may not assign or transfer some or all of your rights and obligations in this Agreement without first obtaining our written consent. We are under no obligation to provide consent to this assignment.
23. Disclosure: You authorize HOUSESMILE to disclose any details relating to you or this Agreement to:
(a) any person to whom HOUSESMILE assigns, or proposes to assign, any part of its rights under this Agreement to; and
(b) any provider of finance to HOUSESMILE; and
(c) any debt collection agency and credit reporting agency that HOUSESMILE wishes to engage with.
24. All details correct: You assure HOUSESMILE that you have provided HOUSESMILE with all names used by you and that all particulars supplied by you, including the correct serial number/identification numbers of the Products (if applicable), when entering into this Agreement are correct.
25. Registration of this Agreement: You must make all reasonable efforts to assist HOUSESMILE to complete the registration of this Agreement under any legislation or other regulatory requirement requiring, permitting or otherwise providing for registration of an agreement of this kind, and the costs of registration will be included in the financial details taken into account in calculating the Total Price as specified in the Order Form. You must act immediately when requested by HOUSESMILE.
26. You appoint HOUSESMILE to act as your attorney: You irrevocably appoint HOUSESMILE, and each of HOUSESMILE’s Directors or Managers, as your attorney with the power to act on your behalf to do anything which you have agreed to do under this Agreement (and failed to do) or which, in HOUSESMILE opinion, is necessary to protect our interests under this Agreement or to give effect to any right, power or remedy conferred on HOUSESMILE by this Agreement, by law or otherwise.
27. Notices and disclosure:
(a) Unless otherwise agreed, all notices and other communications to HOUSESMILE shall be in writing and shall be delivered by hand or sent by email or post, charges prepaid, to HOUSESMILE office address or email address (as appropriate) specified on the front page of this Agreement or as advised from time to time by HOUSESMILE in accordance with this Agreement.
(b) All notices, disclosure and other communication to be given to you shall be in writing and shall be delivered either by electronic communication (including without limitation by facsimile, email, text message), or in paper based format by hand or sent by post (charges pre-paid) to the address, email address, facsimile number or telephone number (as the case may be) specified in this Agreement, in a credit application form submitted to HOUSESMILE or as advised from time to time to HOUSESMILE.
(c) A notice shall be deemed to have been received by HOUSESMILE or you:
(i) if delivered by hand, upon delivery;
(ii) if sent by post, two business days after, but not including, the day of posting;
(iii) (in the case of any notice to HOUSESMILE) if sent by email, on the date that transmission is received by a Manager in legible form , provided that any notice or communication received or deemed to be received after 5.00 pm on a business day in the place to which it is sent, or on a day which was not a business day in that place, will be deemed not to have been received until the next business day in that place; and
(iv) in the case of an email, text message or other electronic communication notice sent by HOUSESMILE to you, on the day HOUSESMILE sends the electronic communication to you, provided that any electronic communication sent after 5.00 pm on a business day in the place to which it is sent, or on a day which was not a business day in that place, will be deemed not to have been sent until the next business day in that place.
(d) You may email or verbally notify HOUSESMILE with changes you wish HOUSESMILE to make to your existing payment structure pursuant to any direct debit authority established for the purposes of this Agreement or request any other changes to this Agreement. Any changes shall be subject to HOUSESMILE’s agreement and if HOUSESMILE approves any changes, HOUSESMILE will record the changes in writing and notify them to you in accordance with this clause 38. Any changes will not be binding on HOUSESMILE until recorded in writing and confirmed to you by HOUSESMILE in accordance with this Agreement. Any changes requested by you may incur a cost or charge payable by you under clause 7.2. All other communications to HOUSESMILE shall be as provided above.
28. Prepayments: You may at any time repay early the unpaid balance in full (Full Prepayment) by making all Payments and other payments required under this Agreement. However, we reserve the right to decline any part prepayment from you.
29. We may set off: We may, at any time, set off any amount which HOUSESMILE may owe to you against any amount which you owe to HOUSESMILE under this Agreement or any other agreement. We may do this even if you are in liquidation or receivership, bankrupt or have entered into any arrangement for the benefit of your creditors.
30. Accessories become part of the Products: You must not allow any accessories or extra parts to be added to or included with the Products without first obtaining HOUSESMILE written consent. However, if any accessories or extra parts (including any replacement parts) are added to or included with the Products, those accessories or parts will for the purposes of this Agreement become part of the Products and subject to this Agreement.
31. Separately binding terms: Each term of this Agreement is separately binding. If for any reason HOUSESMILE cannot enforce any term, all the other terms will remain binding.
32. Our enforcement of rights: We will not be taken to have waived any of HOUSESMILE rights or remedies under the terms of this Agreement unless the waiver is in writing. The fact that HOUSESMILE may delay or not exercise any right or remedy does not affect HOUSESMILE ability to enforce that right or remedy at a later time.
33. You must assign the warranties if requested: If HOUSESMILE ask you to assign your interest in the warranties of the Products to HOUSESMILE, you must do so, and where someone else is the holder of the warranties, you will procure that that person assigns HOUSESMILE their interest in the warranties.
34. You must preserve the warranties: You must not do, or fail to do, anything that would prejudice any interest in the warranties of the Products. If HOUSESMILE takes any action to preserve the warranties, you will indemnify HOUSESMILE for all such costs in accordance with clause 7 (Fees and charges).
35. Variation: No variation of this Agreement will be effective unless made in writing signed by you and HOUSESMILE.
36. Time of the essence: Time shall be of the essence in the performance of your obligations under this Agreement.
37. Acknowledgement of receipt: Each person named in this Agreement as a Customer acknowledges receipt of a completed copy of this Agreement.
38. Completion of blanks: You hereby irrevocably authorize HOUSESMILE to complete any blank spaces in the Order Form, in particular, any date(s), the serial numbers and other identification data with respect to the Products.
39. Continuing security: Until released by HOUSESMILE, this Agreement provides a running and continuing security for the amounts outstanding under this Agreement, regardless of any amounts paid to your credit with HOUSESMILE and even if HOUSESMILE are at any time in debt to you.
40. Sale of Products: Without in any way limiting clause 8.6 (No sale, disposal or modification of Products without consent), all money payable in respect of the sale, lease or other disposition of the Products shall be paid to HOUSESMILE, and you shall direct any purchaser or lessee accordingly.
41. Collateral Securities: If this Agreement is collateral to any other agreements, deeds or securities that HOUSESMILE enters into to secure the amounts you owe under this Agreement or HOUSESMILE enters into any other agreement, deed or security relating to the sale or rental of any other goods or services, then this Agreement and all other such agreements, deeds or securities shall be read and construed together so that a default under one of them shall constitute a default under each of them, so that we may exercise our rights, powers and remedies under this Agreement and each of those other agreements, deeds or securities either separately or under any combination of them together.
42. Information: The Customer agrees that HOUSESMILE and its associated companies may collect information about the Customer. The information may be obtained from the Customer and others. The Customer may refuse to provide any information sought by HOUSESMILE but if the Customer fails to provide the information, HOUSESMILE may refuse to provide goods or services or any credit. The Customer may ask to see any information held by HOUSESMILE as long as it is readily retrievable and the Customer may ask for any details that are wrong to be corrected. HOUSESMILE and its associated companies may also hold the information, share it with associated companies, employees and contractors, with credit reference agencies and with collection agencies. This enables HOUSESMILE and associated companies to:
(a) provide goods and services to the Customer and others;
(b) send invoices and recover money owed to HOUSESMILE and associated companies;
(c) keep the Customer informed of goods and services available from HOUSESMILE and other people;
(d) exercise any lawful right that HOUSESMILE has (which includes registration and maintenance or financing statements under the Personal Property Securities Act 1999)
I/We understand that HOUSESMILE, its employees and/or agents (“HOUSESMILE”) is asking me for personal information about me so as to use that information for the purposes below I understand that the information HOUSESMILE obtains may be used for the purpose of:
obtaining further information about me from third parties;
assisting HOUSESMILE in making a decision on whether or not to enter into this Agreement;
enforcement of my contract if I default in my obligations to HOUSESMILE.
Such information may consist of (but is not limited to) details of my assets, liabilities, income, employment, credit history, address details and contact information. The third parties that HOUSESMILE may query include:
Any trading bank, finance company, credit union or other financial institution;
Any credit reporting service or agency (including but not limited to Baycorp/Veda Advantage); Any government agency (including but not limited to LTSA, LINZ, PPSR, IRD, WINZ);
Other third parties as required by HOUSESMILE for the purpose stated above;
I understand that: this authorisation compels any third party to give HOUSESMILE the information they request about me; neither HOUSESMILE nor any third party needs to contact me before the third party furbishes the information HOUSESMILE Ltd requests;
If I default in my obligations to HOUSESMILE, information about that default may be given to third parties (e.g. a credit reporting agency);
the third parties HOUSESMILE gives my information to may retain that information and use it to provide their own service.
The Privacy Act 1993 restricts the parties to whom HOUSESMILE or any third party may divulge my personal information; in providing a service, a third party (e.g. a credit reporting agency) may disclose information HOUSESMILE has given to them about me to their own customers.
HOUSESMILE may use my details to provide me with information about its promotions & products. You authorize all persons, organizations, companies, government agencies and other entities to provide HOUSESMILE with any information they reasonably request.
You retain the right to cancel this authorisation at any time in full or part by giving signed notice to HOUSESMILE, provided however that you no longer have any contractual obligations to HOUSESMILE.