KiwiAz Trailers & General Engineering Limited Terms and Conditions of Trade Agreement
Address: Unit 2 / 16 Te Tahi Street Whakatane
Below are KiwiAz Trailers & General Engineering Limited Terms and Conditions of Trade. These terms may change from time to time without notice.
These terms replace all earlier written or oral agreements and any terms and conditions contained in any other document used by the client.
Acceptance by the client of any Quote, Invoice or Goods and/or Services from KiwiAz indicates the client agrees to these terms and conditions of trade.
1.1 “KiwiAz” means the company KiwiAz Trailers & General Engineering Limited.
1.2 “Agreement” means the below terms and conditions, together with any Quotation, order, invoice or other document or amendments expressly stated to be supplemental to this Agreement.
1.3 “Client” means the person/s, entities or any person acting on behalf of and with the authority of the Client requesting KiwiAz to provide the Goods and/or Services as specified in any proposal, Quotation, order, invoice or other documentation, and:
- if there is more than one Client, is a reference to each Client jointly and severally;
- if the Client is a partnership, it shall bind each partner jointly and severally;
- if the Client is a part of a Trust, shall be bound in their capacity as a trustee;
1.4 “Goods” means any finished or partly finished products (including but not limited to trailers), components, materials, parts or other items supplied by KiwiAz to the Client at the Client’s request, agreement or instruction and may include any products provided by the Client to which additions, modifications, or enhancements have been made by KiwiAz. (Where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
1.5 “Price” means the Price payable for the Goods and/or Services as agreed between KiwiAz and the Client in accordance with clauses 6 & 7 below;
1.6 “Quotation” means the written or verbal terms upon which KiwiAz agrees to provide Goods and/or Services to the Client;
1.7 “Services” means all Services supplied by KiwiAz to the Client at the Client’s request, agreement or instruction. (Where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
2.1 The Client is taken to have accepted and be immediately bound by this Agreement once the Client places an order, accepts a Quotation or invoice for Goods and/or Services or accepts delivery of the Goods from KiwiAz. Placement of an order and acceptance of a Quotation or invoice can be verbal, in writing (including by email or text), or through the accounting system used by KiwiAz.
2.2 This Agreement shall prevail if there is any inconsistency with any other prior documents or agreements between the Client & KiwiAz.
2.3 Amendment to this Agreement can only be made in writing by consent of both parties, prior to acceptance.
2.4 In the event the supply of Goods and/or Services requested by the Client exceeds the Client’s account and/or the payment terms, KiwiAz reserves the right to refuse delivery or collection.
- Authorised Representatives
3.1 Subject to clause 3.2, the Client agrees that should the Client introduce any third party to KiwiAz as the Client’s duly authorised representative, that once introduced that person shall have the full authority of the Client to order any Goods or Services on the Client’s behalf and/or to request any variation to the Goods and/or Services on the Client’s behalf (such authority to continue until all requests have been completed or the Client otherwise notifies KiwiAz in writing stating that person is no longer the Client’s duly authorised representative).
3.2 In the event that the Client’s duly authorised representative as per clause 3.1 is to have only limited authority to act on the Client’s behalf then the Client must specifically and clearly advise KiwiAz in writing of the areas of limited authority granted to their representative.
3.3 The Client specifically acknowledges and accepts that they will be solely liable to KiwiAz for all additional costs incurred by KiwiAz (including KiwiAz profit margin) in providing any Goods, Services or variation/s requested by the Client’s duly authorised representative (subject always to the limitations imposed under clause 3.2 (if any)).
3.4 An agent or representative of KiwiAz is not authorised to make any representations, warranties or agreements that a director of KiwiAz has not confirmed in writing. KiwiAz is not bound by unauthorised statements.
- Errors and Omissions
4.1 The Client acknowledges and accepts that KiwiAz shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
- resulting from an inadvertent mistake made by KiwiAz in the formation and/or administration of this Agreement; and/or
- contained in/omitted from any literature (hard copy and/or electronic) supplied by KiwiAz in respect of the Goods and/or Services.
- KiwiAz shall not be responsible for any errors or omissions caused by the mutilation or incorrect transmission contained in a facsimile message, electronic mail or other means of transmission in which the Customer has accepted the Quotation.
4.2 In the event such an error and/or omission occurs in accordance with clause 4.1, and is not attributable to the negligence and/or wilful misconduct of KiwiAz; the Client accepts the Agreement remains valid.
- Change in Control
5.1 The Client shall give KiwiAz not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address and contact phone or fax number/s, change of trustees or business practice). The Client shall be liable for any loss incurred by KiwiAz as a result of the Client’s failure to comply with this clause.
6.1 A Quotation by KiwiAz is based on the current price for the Goods and/or Services (based on KiwiAz performing the work during normal working hours) and is subject to availability from KiwiAz’s usual source of supply and suppliers as at the date of the Quotation.
6.2 A Quotation by KiwiAz will be valid if accepted within 30 days from the date the Quotation was provided.
6.3 Once a Client accepts a Quotation from KiwiAz they are accepting the terms and conditions of this Agreement.
6.4 A Quotation differs from an estimate in that an estimate may be varied before or prior to completion of the provision of Goods and/or Services.
- Price and Payment
7.1 At KiwiAz’s sole discretion the Price shall be either:
- The quoted Price from KiwiAz (subject to clause 6.2); or
- as indicated on any invoice provided by KiwiAz to the Client.
7.2 KiwiAz reserves the right to change the Price:
- if a variation to the Goods and/or Services which are to be supplied is requested or agreed to by the Client; or
- where additional Goods and/or Services are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, incorrect or inaccurate plans, specifications or information (such as structural measurements, customisations, etc.) provided by the Client, or change of design, etc.) which are only discovered on commencement of the Services; or
- in the event of increases to KiwiAz in the costs of supply and/or production of the Goods (including fluctuations in currency exchange rates and metal prices etc.), and/or delivery, due to circumstances beyond the reasonable control of KiwiAz.
7.3 Variations will be charged for as advised to the Client (either in writing or verbally) at the time of request or acceptance and shall be shown as variations on the KiwiAz invoice. The Client accepts that in the case of verbal instructions written confirmation regarding variations will only be provided by KiwiAz upon request. The Client agrees that payment for all variations will be made in full in accordance with the invoice provided to the Client.
7.4 In some instances KiwiAz will require the Client to pay 50% of the Price as a deposit upon acceptance of a Quotation or placement of an order, with the remaining amount to be paid in full before delivery or collection.
7.5 The Price will be payable by the Client on the date/s determined by KiwiAz as displayed on the invoice.
7.6 Payment may be made by cheque, electronic/on-line banking, cash or by any other method as agreed to between the Client and KiwiAz,
payment other than cash will not be deemed to be payment until that form of payment has been honoured, cleared or recognised.
7.7 Payments which the client has made to KiwiAz will be applied first to any amount owing in respect of Services, and then to payment for Goods supplied.
7.8 The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by KiwiAz nor to withhold payment of any invoice because part of that invoice is in dispute.
7.9 Unless expressly included in the Quotation, the Price will be stated before the addition of GST and any other taxes and duties charged or levied in connection with the supply of the Goods and/or services to the Client. GST and all such other taxes and duties will be charged to and borne by the Client (in each case, at the rate applicable at the date of any relevant invoice).
- Delivery or Collection of Goods
8.1 The Client agrees to pay all delivery or collection costs that may apply.
8.2 Delivery of the Goods is taken to occur at the time that KiwiAz (or a KiwiAz nominated carrier) delivers the Goods to the Client’s nominated address, unless the Client has instructed otherwise. Collection of the Goods is taken to occur at the time the Client is entitled to take possession in accordance with this Agreement and physically takes control of the Goods. If the Client fails to take delivery or action collection for any reason, the Goods are deemed to have been delivered or collected when KiwiAz was willing to deliver them or have them collected and the Client shall pay KiwiAz an amount equal to any extra cost KiwiAz incurs for either or all if any; transport, storage (including insurance costs), staff wages, accommodation.
8.3 If the Client requests delivery or collection to be made outside of normal working hours, the Client shall pay KiwiAz an amount equal to any extra cost that KiwiAz incurs for transport or staff wages.
8.4 The Client is responsible for insurance and risk in the Goods from the time they leave the KiwiAz premises.
8.5 KiwiAz accepts no responsibility for delay in delivery or collection however caused.
8.6 KiwiAz may deliver any order in instalments, each delivery is a separate agreement and each separate instalment shall be invoiced and paid in accordance with these provisions.
8.7 Delivery of the Goods is an estimate only. KiwiAz will use its best efforts to deliver Goods, or perform Services, in a timely manner, but will not be liable to the Client for any loss or damage arising in any way from any delay in delivery or performance.
8.8 The Client shall ensure that KiwiAz has clear and free access to the delivery site and accepts KiwiAz shall not be liable for any loss or damage to the site (including, without limitation, damage to pathways, driveways and concrete or paved or grassed areas) unless due to the negligence of KiwiAz.
9.1 Risk of damage to or loss of the Goods passes to the Client on delivery or collection and the Client must insure the Goods on or before delivery or collection.
9.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, KiwiAz is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by KiwiAz is sufficient evidence of KiwiAz’s rights to receive the insurance proceeds without the need for any person dealing with KiwiAz to make further enquiries.
9.3 If the Client requests KiwiAz to leave Goods outside KiwiAz premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Client’s sole risk.
9.4 Any advice, recommendation, information, assistance or service provided by KiwiAz in relation to Goods or Services supplied is given in good faith, which is based on KiwiAz’s own knowledge and experience and shall be accepted without liability on the part of KiwiAz, and it shall be the responsibility of the Client to confirm the accuracy and reliability of the same in light of the use to which the Client makes or intends to make of the Goods or Services.
9.5 Where the Client has supplied materials for KiwiAz to complete the Services, the Client acknowledges that they accept responsibility for the suitability of purpose, quality and any faults inherent in those materials. KiwiAz shall not be responsible for any defects in the materials, any loss or damage however arising from the use of materials supplied by the Client.
9.6 The Client accepts that any certification or registration required from third parties for Goods manufactured by KiwiAz is their responsibility and sole cost.
9.7 The Client acknowledges and accepts that in the event KiwiAz is only part way through their Services and is requested by the Client to supply a shell, chassis or frame only (or any otherwise incomplete trailer or product), KiwiAz offers no warranty and accepts no liability of noncompliance or for faults that may occur.
- Dimensions, Plans and Specifications
10.1 Dimensions and specifications referred to in the product design, a catalogue or other publication maintained or issued by KiwiAz are estimates only. Unless KiwiAz agrees in writing, it is not a condition that the Goods will correspond precisely with the dimensions, specifications or customary tolerances. In the absence of customary tolerances, reasonable tolerances will be allowed.
10.2 KiwiAz shall be entitled to rely on the accuracy of any plans, specifications and other information (including CAD plans) provided by the Client.
10.3 If the giving of an estimate or Quotation for the supply of Goods and/or Services involves KiwiAz estimating measurements, it shall be the responsibility of the Client to verify the accuracy of KiwiAz estimated measurements, before the Client places an order based on such estimate or accepts such Quotation.
10.4 Should the Client require any changes to KiwiAz estimated measurements, the Client shall request such changes in writing, in the case of an estimate before placing an order based on that estimate and in the case of a Quotation before acceptance of that Quotation.
10.5 Where the Client has provided instructions or specifications for KiwiAz to complete the Services (including, but not limited to, any requested variation to the original design), then KiwiAz shall accept no liability whatsoever for the finished Services being deemed as unsatisfactory to the Client.
10.6 Whilst KiwiAz shall use their best endeavours to provide the Goods and/or Services based upon the instructions supplied by the Client, the Client agrees to release and indemnify KiwiAz their directors, agents, and employees from any and all liabilities arising out of any damage, loss or injury caused by Goods made to the Client’s designs/specifications where an unknown design fault may be present.
- Title / Property
11.1 Ownership of the property and title to the Goods will be retained by KiwiAz and will not pass on to the client until:
- KiwiAz has received the full amount owing and all other amounts in full from the Client; and
- When all of the Client’s obligations to KiwiAz have been met.
11.2 It is further agreed that until ownership and title passes:
- The Client is only a bailee of the Goods and must return the Goods to KiwiAz on request,
- The Client will not, part, sell, modify, damage, or lend against the Goods until ownership of the Goods or Service passes to the Client in accordance with clause 11.1.
- The Client holds the benefit of the Client’s insurance of the Goods on trust for KiwiAz and must pay to KiwiAz the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
- The Client irrevocably authorises KiwiAz to enter any premises where KiwiAz believes the Goods are kept and recover possession of the Goods;
- KiwiAz may recover possession of any Goods in transit whether or not delivery has occurred;
- The Client shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of KiwiAz;
- KiwiAz may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.
- Personal Property Securities Act 1999 (“PPSA”)
13.1 Upon accepting this Agreement in writing or verbally the Client acknowledges and agrees that:
- i) this Agreement constitutes a security agreement for the purposes of the PPSA; and
- ii) a security interest is taken in all materials, property and/or collateral – being a monetary obligation of the Client for Services – that have previously been provided, and that will be provided in the future, by KiwiAz to the Client.
13.2. The Client undertakes to:
- i) sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which KiwiAz may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register (“PPSR”);
- ii) indemnify, and upon demand reimburse, KiwiAz for all expenses incurred in registering a financing statement or financing change statement on the PPSR or releasing any registration made thereby;
iii) not register a financing change statement or a change demand without KiwiAz’s prior written consent.
13.3. The Client and KiwiAz both agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
13.4. The Client waives any rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
13.5. Unless otherwise agreed to in writing by KiwiAz, the Client waives their right to receive a verification statement in accordance with section 148 of the PPSA.
13.6. The Client shall unconditionally ratify any actions taken by us under clauses 13.1-13.5.
15.1 Clients purchasing any new build Goods from KiwiAz are to complete an inspection sheet with KiwiAz to assess any faults, problems and/or defects, if no issues arise then both parties will sign off the inspection sheet and therefore the understanding between the Client and KiwiAz is the Goods will be free of any defects. If the Client fails to complete or sign this then KiwiAz will treat this as been signed off.
15.2 The Client shall inspect the Goods on delivery or collection and shall within 24 hours of delivery or collection (time being of the essence) to notify KiwiAz of any alleged defect, shortage in quantity, damage or failure to comply with the description quoted. The Client shall afford KiwiAz an opportunity to have the Goods inspected and a report completed by a suitable and experienced engineer of KiwiAz allowing within a reasonable time following delivery/collection, prior to the Client or a third party assigned by the Client commencing any repairs or disassembly of the Goods, 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 presumed to be free from any defect or damage. If the defect is found to be from a product not manufactured by KiwiAz then refer to 16.3 to claim under the supplier’s warranty. For defective Goods, which KiwiAz has agreed in writing that the Client is entitled to reject, KiwiAz’s liability is limited to either (at KiwiAz discretion) replacing the Goods or repairing the Goods.
15.3 Goods will not be accepted for return other than in accordance with 15.2 above.
15.4 Non-stocklist items or Goods made to the Client’s specifications are not acceptable for credit or return.
16.1 A Three-Year Warranty period begins from the date the Product is completed to the standard agreed to by KiwiAz and the Client and then delivered to or collected by the Client. This limited warranty extends to the original Client only, therefore is non-transferable and will be voided if the Product is sold on before the warranty expiration date.
- The conditions applicable to the warranty given by clause 16.1 are:
- the warranty will only be valid if and when:
- full payment of invoices has been made by the client;
- (New build Trailers only) inspection checklist process is completed by KiwiAz and the Client, and any fault to be
- in relation to Trailers or similar products, registration in the name of the Client or change of ownership to the Client has been filled with NZ Land Transport Agency.
- proof of purchase can be provided;
- in relation to trailers or similar products, they must be kept in a safe and road worthy condition to WOF standards as required for use on New Zealand roads at all times, along with a current WOF or warrant of fitness inspection information sheet.
- the warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
- failure on the part of the Client to properly maintain any Goods;
- failure on the part of the Client to follow any instructions or guidelines provided by KiwiAz;
- any use of any Goods otherwise than for any application specified on a Quotation, invoice or at the time of ordering by the Client;
- the continued use of any Goods after any defect becomes apparent or would have become apparent to a reasonably prudent user;
- fair wear and tear, any accident.
- the warranty will become invalid and KiwiAz will not be liable under the terms of the warranty if the Goods are disassembled or the workmanship is repaired, altered or overhauled without KiwiAz consent.
- in respect of all claims KiwiAz shall not be liable to compensate the Client for any delay in either replacing or remedying the workmanship or in properly assessing the Client’s claim.
16.3 For Goods not manufactured by KiwiAz, the warranty shall be the current warranty provided by the manufacturer of the Goods. KiwiAz shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Goods. KiwiAz will out of good faith help the client claim the warranty.
16.4 In the case of second hand or used Goods, the Client acknowledges that full opportunity to inspect the same has been provided and accepts the same with all faults and that no warranty is given by KiwiAz as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. KiwiAz shall not be responsible for any loss or damage to the Goods, or caused by the Goods, or any part thereof however arising.
16.5 The customer must provide KiwiAz with a reasonable opportunity to repair, and reasonable access to the Product for warranty service/repair.
16.6 This limited warranty covers manufacturing defects & workmanship only.
16.7 Warranty claims shall be made by the Client in the first instance by emailing KiwiAz to organise delivery of the Product to the KiwiAz workshop to perform the service/repair. If the Client cannot deliver the Product to KiwiAz, the Client must advise (via email to Kiwiaztrailers@gmail.com) and KiwiAz will then arrange for the collection, inspection and any repair covered under the warranty, after which KiwiAz will arrange delivery back to the Client. The Client in that case shall pay for all related transportation charges and or travel time. If the service/repair provided is not covered by this warranty, the Client shall also pay for all related labour and materials, and any other expenses associated with that service/repair. The Client shall not, unless arranged or requested by KiwiAz, deliver the Products or parts of the Products directly to KiwiAz without notice.
16.8 Exclusions under the twelve-month warranty include but are not limited to:
- Consumable/Routine lack of maintenance items such as Light bulbs, brake pads & systems, inner-tubes, tyres, decking, brake components, *wheel bearings etc. Bearing failure is not covered as bearing performance is highly dependent upon the owner’s diligence in maintaining greasing;
- Parts/materials included/used on Products which are not manufactured by KiwiAz. In that case, such parts and products are to be covered by the individual warranties given by the manufacturers. KiwiAz will assist Clients in approaching such manufacturers in respect of any such claims. The liability of KiwiAz is limited to the cost of repair under warranty;
- the galvanising of trailers or similar products;
- where a defect is caused by misuse, neglect, abuse, abnormal use, adjustments & tampering, alteration or removal of parts, off road use, damage by result of an accident, incorrect adjustment, modification, overloading, parts that have signs of mishandling or normal wear and tear;
- when any unauthorised persons carry out any repairs or alterations to the Goods;
- weather damage, including leaks in the enclosed trailers due to their size and that over time with use and movement leaks may appear. Regular maintenance from the Client is to be carried out
- electrical system corrosion, corrosion resulting from damage, corrosion which causes purely cosmetic damage, abuse or improper service, corrosion to accessories or instruments or Goods being used in a saltwater environment resulting in corrosion;
- Goods that are only partially completed at the request of the Client.
16.9 KiwiAz shall not be liable for any indirect, special, incidental or consequential damages including but not limited to loss of use, loss of business or profits.
- Consumer Guarantees Act 1993
17.1 If the Client is not a consumer as defined in the CGA or the Client acquires or holds itself out as acquiring the Goods under the Agreement for the purposes of a business, nothing in the CGA will apply to the supply of the goods.
- Intellectual Property
18.1 Copyright and any other intellectual property in any designs, drawings, developments, specifications, or other technical information provided by KiwiAz concerning the Goods or Service is vested in KiwiAz.
18.1 Where KiwiAz has designed, drawn, or developed plans, specifications, designs and any other technical information on Goods or Services for the Client, then the copyright in any designs, drawings, plans, documents, and other technical information shall remain the property of KiwiAz. Under no circumstances may such designs, drawings, plans, documents and other technical information be used without the express written approval of KiwiAz.
18.2 If the Goods are to be supplied to the Client’s design, the Client warrants that the designs, specifications, or instructions to manufacture and supply of the Goods by KiwiAz will not infringe any patent, copyright, trademark, registered design or other rights of any other person. The client agrees to indemnify KiwiAz against any liability it incurs (including any costs and expenses) as a result of any claim that the manufacture or supply of the goods by KiwiAz infringes any patent, copyright, , trademark registered design or other rights of any other person.
18.3 The Client agrees that KiwiAz may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings, photographs of the Goods which KiwiAz has created for the Client.
- Default and Consequences of Default
19.1 KiwiAz charge interest for any invoice that is overdue at a rate of 10% per month calendar month from the date the payment became due, until the date of full payment (including accrued overdue interest) (and at KiwiAz sole discretion such interest shall compound monthly at such a rate).
19.2 If the Client owes KiwiAz any money the Client shall indemnify KiwiAz from and against all costs and disbursements incurred by KiwiAz in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, KiwiAz collection agency costs, and bank dishonour fees).
19.4 Without prejudice to KiwiAz other remedies at law KiwiAz shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to KiwiAz shall, whether or not due for payment, become immediately payable if:
- any money payable to KiwiAz becomes overdue, or in KiwiAz’s opinion the Client will be unable to make a payment when it falls due;
- the Client has exceeded any applicable credit limit provided by KiwiAz;
- 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
- a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
- KiwiAz will not be liable to the Client for any loss or damage the Client suffers because KiwiAz exercises any rights, powers, or remedies after the occurrence of an Event of Default, including under this clause.
19.5 If the Client fails to comply with any of these terms (including cancelling any order), KiwiAz is entitled to cancel any orders already made (to the extent not already cancelled) and to recover from the Client any losses, damages, costs, interest, fees, charges (including handling charges payable to us) and expenses incurred by KiwiAz as a result of the Clients default and the subsequent cancellation of such order. KiwiAz may deduct such amount from any deposit paid, with the remaining funds deposited back to the client on the 20th of the following month.
20.1 Without prejudice to any other remedies KiwiAz may have, if at any time the Client is in breach of any obligation (including those relating to payment) under this Agreement KiwiAz may suspend or terminate the supply of Goods to the Client. KiwiAz will not be liable to the Client for any loss or damage the Client suffers because KiwiAz has exercised its rights under this clause.
20.2 Cancellation of orders for Goods made to the Client’s specifications, or for non-stockist items, will not be accepted once production has commenced, or an order has been placed.
20.3 Should KiwiAz be delayed in supplying any order due to any cause not reasonably within our control, KiwiAz may suspend or cancel an order without incurring liability for any loss or damage whatsoever suffered by you or any other person.
20.4 KiwiAz may cancel any order to which these terms and conditions apply or cancel Delivery of Goods at any time before the Goods are delivered by giving written notice to the Client. On giving such notice KiwiAz shall repay to the Client any money paid by the Client for the Goods. KiwiAz shall not be liable for any loss or damage whatsoever arising from such cancellation.
21.1 The Client authorises KiwiAz or its agents to access, collect, retain and use any information about the client for the following purposes:
- To manage order/s placed with KiwiAz, including sending the client statements and invoices
- To provide the client with information about KiwiAz products and any exclusive offers KiwiAz believe may be of interest to the client
- To provide the clients information to a third-party financier where the Client has consented or requested KiwiAz to do so.
- In using photographs or images of the Goods for the purpose of marketing.
21.2 Under the Privacy Act 1993 the Client has the right to access and correct any personal information we hold about the client. Please direct any such request to: firstname.lastname@example.org
21.3 Notwithstanding clause 21.1, privacy limitations will extend to KiwiAz in respect of Cookies where transactions for purchases/orders transpire directly from the KiwiAz website. KiwiAz agrees to display reference to such Cookies and/or similar tracking technologies, such as pixels and web beacons (if applicable), such technology allows the collection of Personal Information such as the Client’s:
- IP address, browser, email client type and other similar details;
- tracking website usage and traffic; and
- reports are available to KiwiAz when KiwiAz sends an email to the Client, so KiwiAz may collect and review that information (“collectively Personal Information”) In order to enable / disable the collection of Personal Information by way of Cookies, the Client shall have the right to enable / disable the Cookies first by selecting the option to enable / disable, provided on the website prior to proceeding with a purchase/order via KiwiAz website.
21.4 The Client authorises KiwiAz and their trusted agent/s to:
- access, collect, retain and use any information about the Client that may be needed for the purpose of assessing the Client’s creditworthiness
- disclose information about the Client, whether collected by KiwiAz from the Client directly or obtained by KiwiAz from any other source, to any other credit provider or any credit reporting agency for the purposes of providing or obtaining a credit reference, debt collection or notifying a default by the Client.
21.5 Where the Client is an individual the authorities under clause 21.3 are authorities or consents for the purposes of the Privacy Act 1993.
- Service of Notices
22.1 Any written notice given under this Agreement shall be deemed to have been given and received
- by handing the notice to the other party, in person;
- by leaving it at the given address of the other party;
- by sending it by registered post to the given address of the other party;
- if sent by email to the other party’s last known email address.
22.2 Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.
- Dispute Resolution
23.1 All disputes and differences between the Client and KiwiAz relating to this Agreement or the relationship shall be:
- First notified in writing to the other party so that attempts can be made to negotiate and resolve any dispute, complaint or claim in good faith;
- Failing resolution under clause 23.1.a above, referred to mediation conducted by a mediator agreed upon by both parties, or failing agreement, by a
mediator appointed by the New Zealand Law Society.
23.2. Court proceedings may not be issued by either party unless clause 23.1 has been complied with.
23.3. Clauses 23.1-23.2 in no way affect KiwiAz’s rights or prevent KiwiAz from immediately taking debt recovery or collection action against the Client, including issuing Court proceedings.
24.1 The failure by either party to enforce any provision of this Agreement shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of this Agreement shall be invalid, void, illegal or unenforceable the validity, existence, legality, and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
24.2 This Agreement and any terms and conditions associated with it shall be governed by the laws of New Zealand.
24.3 KiwiAz shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by KiwiAz of these terms and conditions (alternatively KiwiAz liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
24.4 KiwiAz may licence and/or assign all or any part of its rights and/or obligations under this Agreement without the Client’s consent.
24.5 The Client cannot licence or assign without the written approval of KiwiAz.
24.6 KiwiAz may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this Agreement by so doing. Furthermore, the Client agrees and understands that they have no authority to give instructions to any KiwiAz subcontractors without the authority of KiwiAz.
24.7 The Client agrees that KiwiAz may amend their general terms and conditions for subsequent future Agreements with the Client by disclosing such on their website https://kiwiaztrailers.co.nz/. These changes shall be deemed to take effect from the date on which the Client accepts such changes, or otherwise at such time as the Client makes a further request or order for KiwiAz to supply Goods or Services to the Client.
24.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm, pandemic, Government imposed lockdown or restrictions or other event beyond the reasonable control of either party.
24.9 Both parties warrant that they have the power to enter into this Agreement and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this Agreement creates binding and valid legal obligations on them.