These Terms of Trade apply to all sales, orders and quotations of Services supplied by Kiwiclean to the Customer unless Kiwiclean has agreed in writing to vary them. By placing an order, making a purchase, or accepting a quotation the Customer is deemed to have accepted these Terms of Trade.
1. PRICE AND QUOTATIONS
1.1 The price for the Services (“price”) shall be the price as determined by Kiwiclean at the date of performance of the Services or as otherwise advised to the Customer in writing (subject to clause 1.2 to 1.6 below).
1.2 Unless otherwise stated the price does not include goods and services tax (“GST”) or any other taxes or duties payable in connection with the supply of the Services, which shall be added to the price.
1.3 Any price indications contained in any list or quotation are subject to any fluctuation in the cost of labour and overheads, goods, or any other factors affecting the cost of supply of the Services.
1.4 The price is subject to final confirmation by Kiwiclean at the time of each order.
1.5 A quotation is open for acceptance for the period stated and if no period is stated, then for a period of 30 days from the date of quotation.
1.6 Kiwiclean may withdraw any list or quotation at any time prior to acceptance.
2. PAYMENT
2.1 All accounts shall be payable within 7 days of the date of invoice, or as otherwise identified on any statement of account issued by Kiwiclean, provided that Kiwiclean reserves the right to require cash on provision of any Services.
2.2 All payments due to Kiwiclean by the Customer must be made in full without deduction by way of set off, counterclaim or otherwise.
2.3 If payment is not made to Kiwiclean by the due date, the Customer shall pay interest at the rate of 14% per annum, calculated from the due date until payment without prejudice to Kiwiclean’s other rights and remedies.
2.4 The Customer agrees that they will be liable to pay all costs and disbursements whatsoever incurred by Kiwiclean in attempting to recover any overdue payments.
2.5 The Customer agrees they shall have no right of rejection but shall in the event of any dispute accept and pay for the Services and later settle the claim with Kiwiclean.
3. INTERPRETATION
3.1 These terms of trade are entered into on behalf of and are intended to bind and be for the benefit of Kiwiclean (including any subsidiary) and Kiwiclean's successors and assigns.
3.2 “Services” means all services performed by Kiwiclean for the Customer.
3.3 “Terms of Trade” means these terms of trade themselves together with any and every invoice, or other document evidencing or describing, whether by item or kind or otherwise, any Services.
3.4 These terms of trade supersede and exclude all prior and other discussions, or representations (contractual or otherwise) and arrangements relating to the supply of the Services including, but not limited to, those relating to the performance of the Services or the results that ought to be expected from the performance of the Services.
4. TERMINATION OF CREDIT ACCOUNT
4.1 Kiwiclean may at any time in its sole discretion, without notice to the Customer, terminate any credit account of the Customer with Kiwiclean, and all amounts outstanding shall become immediately due and payable by the Customer to Kiwiclean.
5. INTELLECTUAL PROPERTY
5.1 The Customer acknowledges Kiwiclean’s ownership of all intellectual property (including without limitation all patent rights, registered designs, copyright, specifications and other technical information) used by Kiwiclean in the course of and related to provision of the Services by Kiwiclean as well all arising out of the provision of the Services by Kiwiclean.
6. FORCE MAJEURE
6.1 Kiwiclean is not liable for any delay in delivery of the Services or any failure to perform any other obligation caused or contributed to by any circumstances beyond its reasonable control.
7. LIABILITY
7.1 The total liability of Kiwiclean in contract, tort (including negligence), equity, statute, regulation or otherwise, for any loss, damage or injury directly or indirectly arising from any defect in or non compliance of or in relation to any Services, or any other breach by Kiwiclean under this contract however arising, will not in aggregate exceed the price of the defective or non complying Services, or Services directly associated to Kiwiclean’s breach, under any circumstances.
7.2 Kiwiclean shall not be liable for any issue with the Services unless Kiwiclean first receives a complaint and has been given the first priority and ample opportunity to rectify the issue.
7.3 Kiwiclean shall not be liable for any issue with the Services when the issue complained of, has arisen either directly or indirectly from the Customer’s negligence, or inappropriate actions, inevitable accident, act of God or from any other matter beyond the reasonable control of Kiwiclean.
7.4 Any liability whatsoever for consequential, exemplary or special damages or loss (including but not limited to loss of income, profit, business overhead costs, goodwill or reputation) arising from the Services performed by Kiwiclean is expressly excluded.
8. CANCELLATIONS
8.1 No cancellation of any order or part thereof shall be effective until accepted by Kiwiclean in writing. In the event of a cancellation being accepted, the Customer will, as a term of such acceptance, pay Kiwiclean in full for any charges resulting from Services actually provided.
9. ASSIGNMENT
9.1 Kiwiclean may assign to any other person, any debt or part of a debt, owed by the Customer to Kiwiclean.
9.2 The Customer may not assign all or any of the Customer’s rights or obligations under the contract without the prior written consent of Kiwiclean.
10. WAIVER
10.1 No failure, delay or partial exercise by Kiwiclean in respect of any of its rights, powers and remedies under this contract operates as a waiver nor is any waiver in respect of one breach deemed to be a waiver of any other breach.
11. INDEMNITY
11.1 The Customer indemnifies Kiwiclean against any claim, loss or damage Kiwiclean may suffer arising directly or indirectly out of the breach or non-observance of any obligation imposed on the Customer by this contract.
12. LAW AND JURISDICTION
12.1 This agreement shall be governed by New Zealand law and the non exclusive jurisdiction of the New Zealand Courts shall apply to all claims and actions arising out of this Agreement.
13. CONSUMER GUARANTEES ACT 1993 (“CGA”)
13.1 Where these terms and conditions would otherwise be subject to the CGA the Customer agrees that the Customer is acquiring the Services for business purposes and that the CGA does not apply to the supply of Services to the Customer.
13.2 If the Customer is a consumer as that term is defined in section 2 of the CGA and the Customer has not contracted out of the CGA under subsection 1 of this clause, nothing in these terms and conditions will limit any rights the Customer may have under the CGA.
14. PRIVACY ACT 1993
14.1 The Customer authorises Kiwiclean to contact any credit agency, referee, or any other source ("Source") in order to check, exchange or provide information in relation to the Customer for the purposes of Kiwiclean’s business and the Customer authorises each Source to provide to Kiwiclean any information about the Customer. If the Customer is a natural person, the Privacy Act 1993 entitles the Customer to have access to personal information held by Kiwiclean about the Customer and to request correction of that personal information.
15. SEVERANCE
15.1 If any provision of these terms and conditions becomes invalid, illegal or unenforceable, the provision shall be deemed to be void and severable and the remaining provisions of these terms and conditions shall not in any way be affected or impaired.