Application

1.1 The following terms of trade (“Terms”) shall apply to products and services (“Services”) purchased by you from ShowerFix Limited (“us, we, our”). These Terms will prevail if there is any inconsistency with any other document.

2. Quotes and Estimates

2.1 These Terms apply to any quote or estimate we give you. Unless otherwise expressly recorded in writing, any pricing information we provide to you shall be deemed to be an estimate only and based on information supplied by you.

2.2 You are solely responsible for the accuracy of any information upon which a quote or estimate is based.

2.3 Any changes to the quantities, measurements or specifications or nature of the services required subsequent to any quote or estimate provided by us or any inaccuracies or misstatements in the information provided to us, shall constitute a variation and be the subject of a separate invoice.

2.4 If we provide an estimate, we are not bound to supply the Services at the estimated price and you are liable for the actual price of any Services purchased as invoiced by us.

2.5 We may at the time of supply substitute a similar products or materials to that ordered / estimated / quoted.

3. Authorisation

3.1 You agree that we have no obligation to inquire into the authority of any person placing orders on your behalf. It is your risk and responsibility to obtain every necessary or prudent authorisation (including licences, permits and consents) in relation to the Services we supply to you.

4. Your Obligations and Risk

4.1 You must strictly comply with any instructions, direction, recommended uses and applications and any cautions and/or warnings (“our Instructions”) we provide you in respect of the Services.

4.2 We will not be liable for any direct or indirect damage, economic loss of any kind or any other loss or expenses caused by or contributed by your failure to comply with our Instructions.

4.3 You acknowledge that you are solely liable for:

(a) If the location where the Services are to be performed are tenanted – ensuring that any tenant of the property has consented to us attending the property for the purpose of the Services or that we are provided with the tenant’s contact details so that we can arrange access directly with the tenant;

(b) ensuring the area where we are to perform the Services is readily accessible at the time, we have agreed to attend the location to perform the Services;

(c) any extra costs as a result of any incorrect information supplied by you.

5. Warranty

5.1 If you are not obtaining the Services for the purpose of a business (refer clause 14 below) then you will be covered by the guarantees in the Consumer Guarantees Act 1993 and the Warranty in clause 5.2 is in addition to your rights under that Act.

5.2 We warrant:

(a) That we will repair, at our cost, any defects in our workmanship that are brought to our attention during the period which is 12 months after the date the Services were completed; and

(b) That we will, at our option, repair or replace, our cost, free of charge, any failure of or defect in any of the products specified below, provided that the defect of failure is notified to us within the periods specified below:

(i) Strip seals, rollers, pivots and pivot blocks – 6 months;

(ii) Tray to liner sealant – 12 months;

(iii) Tray to glass or frame – 6 months.

5.3 The warranties provided in clause 5.2 do not cover any failure or defect which is caused by or partly caused by or arises through:

(a) Any pre-existing condition or defect in or near the area where the Services are performed or in any equipment or facilities installed or located in or near such area (e.g., existing wall coverings, plumbing, internal leaking, rotten materials);

(b) Prior and subsequent work or act performed by you or any third party;

(c) Failure on your part to property maintain or clean the location where the Services were performed.

(d) Failure on you part to follow any instructions or guidelines provided by us;

(e) The continued use after any defect become apparent or would reasonably been apparent;

(f) Fair wear or tear or act of God (e.g., flood, fire etc) or any other cause outside our reasonable control.

The warranties in clause 5.2 will no longer apply if products installed as part of the Services are repaired or altered without our consent.

5.4 You acknowledge that sealants will need to be maintained or replaced from time to time depending on the design of your shower and/or its use.

5.5 Any materials or products used in the Services will also be covered by any warranty provided by the applicable manufacturer of those materials or products.

6. Limitation of Liability

6.1 Subject to clause 6.2 and our obligations under the Consumer Guarantees Act 1993 which are not excluded under clause 14, we will not be liable for any direct or indirect loss or damage, including without limitation; economic loss, loss of profits or savings (or for any indirect or consequential loss or damage), however caused, arising out of or in connection with the supply of Services including without limitation as a result of the following:

(a) delays or termination of the Services due to any circumstances outside our control including as a result of weather conditions, inability to access the location where the Services are to be performed, restrictions imposed by the Government or other authority, delay or cessation in the supply of materials we require to complete the Services, strikes, lockouts, war or violence

(b) incorrect information supplied by you.

6.2 Our liability in respect of all claims for loss damage or injury arising from a breach or our obligations under these Terms or from any act or omission by us is limited in each case to the lesser of:

(a) Replacement or repair or resupply of the Services.

(b) Payment of the reasonable cost of replacing or repairing or supplying the Services.

(c) The price of the affected Services.

6.3 All claims must be made in writing and are subject to verification or acceptance by us. No claim for any loss, damage or injury arising out of the supply of the goods or services by us, may be brought more than 3 months after the date you become aware or reasonably ought to have been aware of the circumstances giving rise to the claim.

7. Your Indemnity

7.1 You will indemnify us:

(a) for any physical, direct and indirect damage, economic loss or other loss or cost or expenses (including legal expenses on a solicitor and client basis), and will fully indemnify us against any claims or proceedings against us to the extent caused or contributed by you (or any of your agents or employees) or arising from a breach of these Terms; and

(b) for the cost of the Services and our time if we are unable to perform the Services due to circumstances within your control e.g., inability to access the location to perform the Services at the agreed time.

8. Price

8.1 Unless otherwise stated, all quotes and estimates are exclusive of GST.

8.2 You agree that we may increase or decrease our quotes and estimates by notice to you in our sole discretion by the amount of any increase or decrease in the cost of any items affecting the costs

of supply, production and/or delivery of any products or materials to be used in the Services between the date of the estimate/quotation and the date of delivery.

9. Payment

9.1 You agree to the following:

(a) You must pay our invoice in full and in cleared funds no later than 3 working days after receipt of our invoice;

(b) If we require you to pay a deposit this must be paid immediately on acceptance of the estimate or quote and is non-refundable; and

(c) Payment of any amounts owed to us must be free of any counterclaim, set-off, deduction or any other claim whatsoever.

10. Intellectual Property

10.1 You agree that any intellectual property rights arising out of the performance of the Services are and shall remain our property.

11. Termination

11.1 If any of the events set out in clause 12 occur, we may without prejudice to and in addition to any other rights or remedies we may have, exercise all or any of the following rights:

(a) Delay the supply or performance of the Services until the matter is resolved to our satisfaction;

(b) Suspend or cancel in whole or in part these Terms or any other contract between us by written notice to you;

(c) Recover from you all amounts for any damage, losses, cost or expenses including actual legal costs and expenses arising from your default or non-payment;

(d) Charge and you must pay default interest at the rate of 18% per annum (calculated on a daily basis) until all amounts owed to us are paid in full including actual legal costs and other costs and expenses incurred by or on behalf of us in enforcing or defending all or any of our rights.

12. The events referred to in clause 11.1 are:

(a) Breach of your obligations (including payment obligations) under these Terms or any other contract with us;

(b) You entering into any negotiations for any scheme of arrangement, composition or compromise with your creditors;

(c) You, in our opinion, being unable to pay your debts (including contingent liabilities) as they fall due;

(d) You passing any resolution to liquidate or becoming the subject of any liquidation proceedings;

(e) You have a receiver or a receiver or manager appointed over the whole or part of your property or undertaking; or

(f) You become bankrupt or commit an act of bankruptcy.

13. Personal Property Securities Act 1999 (“PPSA”)

13.1 Ownership of any products which form part of the Services (“Goods”) does not pass to you until they are fully paid for.

13.2 You acknowledge that these Terms create a security interest in any Goods we supply to you as security for your obligations to us under these Terms and this security interest is registerable in the Personal Property Securities Registry.

13.3 You must sign and deliver any documents and do anything else that we require to ensure that we have a perfected first ranking security interest in the goods under the Personal Properties Securities Act 1999 (“PPSA”).

13.4 You waive any right to receive a copy of a verification statement under the PPSA and agree to the extent permitted by law that:

(a) Where we have rights in addition to, or existing separately from those in Part 9 of the PPSA, those rights will continue to apply and in particular will not be limited by section 109 of the PPSA;

(b) Sections 114(1)(a), 133 and 134 of the PPSA will not apply; and

(c) You will have none of the rights referred to in sections 116, 117(1)(c), 119, 120(2), 125, 129 and 131 of the PPSA and you waive your rights to object under section 121 and to redeem under section 132.

14. Consumer Guarantees Act 1993 and Fair Trading Act 1986

14.1 You agree that where the Services are being supplied for the purposes of the business that sections 9, 12, 13, 14 (1) of the Fair Trading Act 1986 and the provisions of the Consumer Guarantees Act 1993 will not apply.

15. Warranties

15.1 All statutory, express or implied warranties by us including without limitation the implied warranties of merchant ability and fitness for any particular purpose are expressly excluded (to the extent permitted by law).

16. Privacy Information

16.1 You agree that any information about you provided to us may be used by us at any time for any purposes connected with our business including but not limited to direct marketing, debt collection and credit reporting or assessment. You authorise us to provide such information to any external agency or any party for credit information and assessment purposes and that agency or party are hereby authorised to use and continue to use such information as part of their business services. Any personal information is held at [insert address] Auckland and you have certain right of access to your personal information under the Privacy Act 2020.

17. Unsolicited Electronic Messages Act 2007

17.1 You consent to receiving emails and other communications from us regarding our Services.

18. General

18.1 You agree that time is of the essence in respect of your obligations to us.

18.2 We will not be prevented from enforcing any of our rights under these Terms because on an earlier occasion we did not enforce those rights.

18.3 All notices to be given pursuant to these Terms will be given in accordance with sections 185 to 189 of the Personal Properties Securities Act 1999.

18.4 While you are not entitled to assign your rights under these Terms we may.

18.5 You agree that we may issue any proceedings in respect of these Terms in any court that suits us. The law that governs these Terms is New Zealand law.

18.6 We may in our sole discretion vary these Terms from time to time by notice to you.

18.7 Any provision of these Terms that is held to be invalid or unenforceable for any reason shall be severed from and shall not affect the remaining provisions of these Terms.

18.8 You agree that these terms express the entire understanding between us and that there have been no representations made by or on behalf of us that have been relied upon by you that are not contained in these terms.