Terms and Conditions
These Terms and Conditions of Use (“this Agreement”) explain our obligations to you, and your obligations to us, for all goods and services (“the Products”) provided to you by or through us via this website smartbuild.co.nz, its links, network or referrals (“the Site”).
In this Agreement the following words have the meanings defined below and where limited by the context in which they are used, are to be interpreted as broadly as possible in our favour:
- “us”, “we”, “our” or “the Company” refers to Smart Build Limited, its successors, assigns and its associated companies, subsidiaries, affiliates, representatives, agents and partners and includes its directors, employees, agents, licensees, invitees, contractors and all other persons under its control or direction;
- “you” or “your” refers to you the user of the website or the Products. You must be 18 or over and legally competent to enter into a contract failing which you must have the consent of a parent or guardian to use the Site and/or Products;
- “Material” or “Materials” means all or any part of the Site, associated software, links information, templates, opinions, blogs, get up, advertising, promotional information, activity, or anything contained, posted or otherwise available via the Site or concerning the Products, the Products themselves, their get up, composition, labelling and packaging.
We are willing to negotiate the terms and conditions of this Agreement with you. However, unless we have expressly (and not by implication) agreed in writing to vary the terms and conditions of this Agreement, the Agreement as set out on the Site will apply to your use of the Site, the Materials and our relationship with you.
BY ACCESSING OR OTHERWISE USING THE MATERIALS YOU AGREE TO ALL OF THE TERMS AND CONDITIONS SET OUT BELOW OR AS VARIED BY AGREEMENT IN WRITING WITH US
Our templates will not be suitable for all occasions. They are intended as a guide to the steps, timelines and documents that are commonly required and are not intended to replace expert advice from the relevant local authority or any other regulator, your builder, architect, planner, engineer, lawyer, building certifier or any other building
professional specific to your project.
We have made reasonable efforts to ensure that the Material is accurate, up to date and suitable for its intended purpose. To the extent permitted by law we accept no liability (even if negligent) for any injury, loss, damage or other harm caused by our act or omission or your reliance on any of the Material.
YOU ARE LIABLE FOR ALL COSTS AND CONSEQUENCES ARISING FROM YOUR USE OF THE MATERIAL
We may change this Agreement at any time. We will post notices of changes to this Agreement on the Site. Our doing so and your continued use of the Materials constitutes notice and acceptance of any and all such changes. It is your responsibility to regularly check the Site to determine if there have been changes to this Agreement and to review such changes.
In order to use the Materials you agree to:
- provide accurate, current and complete information about you as may be required by us;
- safeguard your user name and password from any unauthorised use or misuse;
- promptly tell us of any changes to the information we have sought from you;
- not access any other user’s account or information held by us for any reason; and
- be fully responsible for all use of the Materials and/or your account and for any actions that take place using your account or email address including
Purchases of Products.
You may decide not to provide the information we require and you can notify us that you do not want us to use your information. In that event we may not allow you to use/obtain/access the Materials (including obtaining the Products) or to register as an account holder.
When you access the Site, the Site might automatically download cookies and other things including programmes designed to make accessing the Site more efficient or for our administrative purposes. You authorise the download of such material and access to your computer system by us via the Site including for the purposes of S252 of the Crimes Act 1961 and agree to hold us harmless from any consequences that might arise from such a download.
You agree that by accessing the Site you authorise us to contact you by email as we wish including to send you promotional or other marketing information. If you do not wish to receive such emails you can reply to the email with “unsubscribe me”.
In no event is your password or account transferable without our express written permission.
You are responsible for all loss, liability, expense, harm and/or cost that may be incurred from use of your password or your account irrespective of whether we are aware that your password has been misappropriated.
While we do not warrant that we own or have rights to the Material that allows you to download print or use the Materials, we claim all copyright, trade mark and other intellectual property rights that we have not previously agreed in writing are held by a third party in the Materials.
To the extent we have the right to do so, we grant you a non-exclusive royalty free right to download print and use the Materials for your own personal non-commercial use.
Use of the Materials for commercial gain or reward or that enables a third party to obtain a commercial gain or reward is not permitted.
Other than the non-exclusive right to access/use the Materials for their stated purpose, you are not granted any rights to any intellectual property or other rights in the Materials.
Your non exclusive right to access/use the Materials is on the basis that you will not otherwise use the Materials in any way in whole or in part without our prior written permission.
In no event will you use the Materials in any manner that is likely in our sole discretion:
- To deceive or cause confusion, or
- That might bring us into disrepute; or
- That will undermine or harm our intellectual property rights (including without limitation our registered trade mark rights) or that might otherwise cause us loss or other harm; or
- That might be contrary to law or the requirements of any ISP, communications provider, or regulatory or law enforcement agency
- That might cause offence, harm or loss to a third party. Anything you develop using the Materials in which Intellectual Property rights might exist must be transferred or licensed to us on an un-restricted royalty free perpetual basis.
Supply of Products
We supply the Products in each case on the following terms and conditions:
- We provide both our own and third party Products we are authorised to resell. We do not always stock Products and the delivery of Products ordered via the Site can be undertaken by the producer of the Products.
- While you might order Products from us and we might engage in communication regarding an order for Products, acceptance of such an order occurs only on our acknowledgement of payment in full in cleared funds of the price of the Products.
- Once we have accepted an order for Products you will be liable for the full cost of the order and we are under no obligation to refund the cost of an order or any part of it because you change your mind or no longer wish to complete the purchase for any other reason.
- Without limiting any other provisions of this Agreement it is a condition of ordering Products from us that:
- You are granted a license to use the intellectual property in the Products solely for the life of the Products and while using the Products for their intended purpose;
- You will only use the Products for their intended purpose;
- You are not relying on any opinion or other statement from us regarding the benefits or otherwise of the Products and are instead relying on your own investigations and judgement when deciding to purchase the Products;
- We do not warrant that the Products will be useful or will achieve any desired outcome;
- The Products are provided to you on the basis of the limitations and qualifications on use and liability required by the producers or suppliers (including their insurers) of the Products, which limitations and qualifications are expressly incorporated into this Agreement for our benefit;
- Because products or some of them can be sourced from third party producers, to the extent permitted by law our responsibility for supply ends when the order is accepted by the producer;
- We supply Products EXW (Incoterms 2010) which means our responsibility ends upon dispatch and all risk (including for theft, damage or destruction) in the Products passes to you once dispatched to you;
- While we might offer the opportunity to purchase insurance for the delivery of Products, to the extent permitted by law we do not accept any liability for any insurer’s refusal to accept insurance, pay a claim or any other problem you might have with such insurance;
- We do not guarantee or warrant the availability of the Products;
- Without limitation the Products may be temporarily or permanently unavailable from time to time;
- Any failure to deliver is a matter between you and the carrier or if we are in any way liable for carriage our liability is limited to the maximum extent possible under the Carriage of Goods Act 1979; and
- To the extent permitted by law use of the Products is at your own risk and we are not responsible for any outcomes arising from use of the Products.
We can alter our costs at any time. We will endeavour to give you 7 (seven) days notice of such a change (but are not obliged to do so) by posting notices of changes on the Site or contacting you directly. Your continued use of the Materials constitutes notice and acceptance of any and all such changes. It is your responsibility to regularly check the Site to determine if there have been changes and to review such changes.
For the removal of doubt and without limiting any other provision of these terms and conditions, when ordering Products you agree to pay our charges in advance. Failure to make payment or if payment is reversed for any reason removes any obligation on our part to supply Products to you.
In the event an exchange rate fluctuation or other happening beyond our control (such as additional costs to us by third parties) causes an increase in the price of the Products you agree that we can pass on the increased cost to you and which you will pay.
In the unlikely event that you are extended credit by us for any reason, it is on the following terms:
- All amounts will be paid to us in NZ dollars;
- You will pay interest at the rate of 2 percent per month on all outstanding balances, all payments going first to interest and then principal (“Interest”);
- You will pay all collection costs on a full indemnity basis and for the removal of any doubt but without limitation including as between lawyer and client, incurred by us to obtain payment and you shall pay Interest on such costs (“Costs”);
- You will pay Interest on any judgement sum awarded to us by any Court;
- Should you dispute any of our invoices raised you will make payment of that invoice and in the event that your dispute regarding the invoice is considered justified by us we will refund the payment or such part of it as we in our sole discretion consider appropriate;
- Until payment in full (including Interest and Costs) is made: title in the Products remains with either us or the producer of the Products as the case might be;
- You will not encumber the Products;
- This Agreement creates in our favour a purchase money security interest in all present and after acquired Products;
- You will do all things, sign such documents and/or provide such information as we might require to perfect and maintain a security interest on the Personal Property Securities Register;
- Your rights under s107, 114, 116, and 120 of the Personal Property Securities Act shall not apply to this Agreement.
In the event you have purchased unused Products which you no longer require, you may request a refund by emailing email@example.com. We will refund unused Products based on the number of disused Products as a percentage of the original purchase price. A SmartBuild administration fee of 25% of the total amount of the refund will also be charged.
No part of a used Product is refundable.
Any refunds will be paid directly to the users.
Termination De-activation of user account
You can de-activate your account with us by selecting the appropriate option on our website. Please note it may take us up to 5 (five) working days to ensure the de-activation of your account is complete.
Where your information is shared with other users (for example where there are multiple users on one project) some information about you and relating to the Product may still be available to other users after your account is deactivated.
If you wish to re-activate your account, you will be able to regain access to your information by providing the same registration particulars.
De-activation of your account does not relieve you of any liability for any costs you incur prior to de-activation becoming effective and those provisions of this Agreement intended to survive de-activation (including all indemnities and limitations of liability in our favour, rights to payment and to recover monies owing, intellectual property, privacy) will continue to apply to you.
We can de-activate your account and/or right to access or use the Materials without notice in the event we, in our sole discretion consider it desirable to prevent harm to us or the Materials or to comply with a third party complaint regarding you or your use of the Materials.
Otherwise we can de-activate terminate your account and/or right to access or use the Materials upon 5 (five) working days notice.
You agree not to claim against us for any loss, cost or other harm that you might suffer as a consequence of our de-activation of your account or refusal to provide the Materials.
General terms and conditions
Without limiting any other provisions of this Agreement:
We do not warrant that the Materials are free from any form of virus, worm, spyware, or other malware;
To the extent that we have not otherwise done so, we do not represent or warrant that the Materials are accurate, complete, reliable, current or errorfree, or suitable for any stated purpose;
You rely on, download, use or otherwise access the Materials at your own discretion and risk in all respects;
You will be solely responsible for any damages to your or any other property arising from your use of the Materials;
- We are not liable in any manner for any Materials on the Site;
- We cannot guarantee and do not promise any specific results from the Materials;
- For the removal of doubt we are not responsible for the activity or Materials offered or provided through the Site by users, clients or advertisers and use of such is at your own risk in all respects to the fullest extent permitted by law.
- Without limitation Materials may be temporarily unavailable from time to time for maintenance or other reasons;
- We assume no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorised access to, or alteration of, communications;
- We are not responsible for any technical malfunction or other problems of any telephone network or service, computer systems, servers or providers, computer or mobile phone equipment, software, failure of email or hardware on account of technical problems or traffic congestion on the Internet or at any site or combination thereof, including injury or damage to users or to any other persons’ computer, mobile phone, or other hardware or software, related to or resulting from using or downloading the Materials;
- Any links to or from the Site are utilised at your own risk in all respects;
- The existence of a link with another web site or service does not constitute an endorsement by us of that website or service or that we agree or disagree with any Materials connected with such a website or service;
- We are not responsible for any loss, injury, claim, liability, or damage arising from use of or access to the Site and/or any website linked to the Site, whether from errors or omissions in the Materials or any linked websites, from this Site or any linked websites being down, or otherwise howsoever;.
- Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof, or any affiliation therewith, by us;
- We do not warrant that we monitor the Materials for compliance with this Agreement and therefore that the Materials do not breach this Agreement or are otherwise not objectionable on any grounds whatsoever;
- You will not harvest or collect the email addresses or other the Information of other users from the Site by electronic or other means and nor will you use automated scripts to collect Material from or otherwise interact with the Site;
- You will not impersonate any person or entity, or falsely state or otherwise misrepresent yourself, your age or your affiliation with any person or entity;
- You will not use or attempt to use another's account, service or system without authorisation from the Company, or create a false identity in connection with the Products or the Site;
- You will not upload or attempt to upload Material onto the Site without our permission;
- You will not attempt by act or omission to bring the Materials into disrepute;
- We reserve the right to change the Materials at any time without notice;
- We are not obliged to take any action in reply to a complaint, concern or other issue you have about anything to do with us or the Material;
- Our decisions under this Agreement as between you and us shall be final; and
- We shall be under no obligation to give reasons for or enter into any communication regarding any decision we make under this Agreement.
Without limiting the following, unless you owe us money, we will generally not claim against you unless there is a claim against us arising from our relationship, your use of the Site and/or the Materials.
To the fullest extent permitted by law you indemnify and hold us harmless from and against our full legal, external and internal costs (including without limitation for economic loss, damages, reparations, expenses settling any liability, claim or demand) to pay or otherwise deal with any claims, judgements or other actions taken against us arising directly or indirectly (whether negligent or otherwise) from your access to the Site and/or use of the Materials irrespective of whether we could have avoided the claim, judgement or other action in question.
General limitations of liability in relation to the supply of Products
We accept liability for any personal injury or loss or harm to property only to the extent it is illegal for us to exclude such liability. To the extent permitted by law our liability to you for all loss, cost or harm, whether direct, indirect or consequential or whether arising from use or provision of the Products or this Agreement, is excluded absolutely. In the event we are found liable to you or anyone claiming through you (without accepting such a claim can be made) our liability is limited to the purchase price actually paid to us by you or NZ$250, whichever is the lesser. For the removal of doubt:
- where you are acquiring Products provided by or on behalf of us for business purposes, the provisions of the Consumer Guarantees Act 1993 imposing any liability upon us will not apply and we will not be responsible for (and you indemnify us against) any loss, cost or harm including reparations, compensation, consequential damages, economic or financial loss, loss of profits or savings, loss of data, loss of funds or any other liability whether in contract, equity or tort arising directly or indirectly from use or the provision of the Products;
- Representations and agreements not expressly contained herein or incorporated by reference shall not be binding upon us as conditions, warranties or otherwise;
- All conditions and warranties (including without limitation warranties of title, merchantability, fitness for a particular purpose or non-infringement) whether express, imposed or implied by law are expressly excluded to the extent permissible by law;
- This Agreement and any terms and/or conditions incorporated into this Agreement by reference form the whole of the agreement between the parties except as varied in writing signed by the parties or as permitted by this Agreement.
The Materials and Products are designed for users subject to New Zealand law and jurisdiction and we accept no responsibility for liability arising for any reason outside of New Zealand unless expressly assumed in writing by us. Nothing on the site or in these terms and conditions assumes liability outside of New Zealand.
This Agreement shall be governed by and interpreted and enforced in accordance with the laws of New Zealand. Any action relating to this Agreement must be brought in New Zealand and you irrevocably consent to the jurisdiction of the New Zealand courts located in Wellington New Zealand. In the event you are outside of New Zealand and we agree to supply Materials to you, you agree that:
- the contract is formed in New Zealand upon our agreement to supply howsoever expressed and the point of sale is New Zealand;
- supply is on the terms and conditions set out in this Agreement and such other terms and conditions as we might require and in the event of any conflict between the provisions of this Agreement and any other terms and/or conditions relating to the provision of Materials, the provision and interpretation most favourable to us shall apply;
- you agree that the purchase and all liability issues are to be resolved under New Zealand law;
- you submit to New Zealand law in relation to this Agreement and the ordering, supply and use of the Materials;
- you agree not to challenge the jurisdiction of the New Zealand Courts located in Wellington New Zealand; and
- you agree to abide by, be subject to and give effect to any judgement entered against you by a New Zealand Court irrespective of the location of the parties, the factual matrix or any other issue of jurisdiction.
It is essential to our entry into any legal relationship with you that you agree to submit to and accept New Zealand jurisdiction on the terms and conditions set out in this Agreement.
You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Site or the Products ("Submissions"), provided by you to us are non-confidential and shall become our sole property. We shall own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
Definitions and Construction
Unless otherwise specified, the terms’ "includes", "including", "e.g.,", "for example", and other similar terms, are deemed to include the term "without limitation" immediately thereafter.
You agree that where your electronic signature is included on a form contained in/ submitted via the Materials (those signatures being your name printed in the signature space of a form), you as the signatory approve the information to which your electronic signature relates.
No provision shall be construed against us solely because we prepared this Agreement or because of the manner in which this Agreement is provided to users.
This Agreement constitutes the entire agreement between you and us regarding the use of the Materials, superseding any prior agreements between you and us relating to the Materials. Headings are for ease of reference and do not affect interpretation. Our failure to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision in that or any other instance.
If any provision of this Agreement is held invalid, deemed unlawful, void or for any reason unenforceable, then that provision shall be amended to reflect the intent of the provision or if that is not possible, deemed severable from this Agreement without affecting the validity and enforceability of any remaining provisions. The remainder of this Agreement shall continue in full force and effect
Last updated: 4 August 2021.