1. Terms of Trade

1.1 The terms and conditions set out below apply to every supply of Goods made by Kiwinuka to the Customer. By placing an Order with Kiwinuka the Customer agrees that it is bound by these Terms of Trade and that the Customer’s own terms and conditions do not apply.

1.2 Where the Customer has entered into a separate written supply agreement with Kiwinuka, these Terms shall also apply except to the extent that there is any inconsistency between these Terms and the separate supply agreement, in which case the relevant provisions of the supply agreement shall prevail.

1.3 Kiwinuka reserves the right to amend these Terms of Trade by displaying an amended electronic version on its website (www.kiwinuka.com) The version of the Terms of Trade displayed on Kiwinuka’s website will be the version in force at any given time and the Customer is charged with reviewing those Terms of Trade in advance of ordering goods. The Customer is deemed to have agreed to be bound by the Terms of Trade on Kiwinuka’s website by ordering Goods not with standing that the customer may not have read them.

2. Definitions

Credit Account means the account for purchasing goods on credit held by the Customer with Kiwinuka.
Customer means the person who purchases Goods from Kiwinuka, and includes the Customers’ employees, contractors, subcontractors and agents. Where the Customer comprises two or more persons, means those persons jointly and severally.
Goods means any goods provided and/or manufactured by Kiwinuka.

Kiwinuka means Kiwinuka Health Limited.

PPSA means the Personal Property Securities Act 1999.

Order means an agreement between Kiwinuka and the Customer for Kiwinuka to supply Goods and/ to the Customer.
Quote means a written offer from Kiwinuka to the Customer to supply Goods for a specified price subject to the terms and conditions of such offer.

Terms means the terms and conditions of the supply seout in this document, including any variation to these Terms.

3. Orders and Quotes

3.1. These Terms apply to all Goods supplied by Kiwinuka. These Terms may be modified or added to by specific terms specified by Kiwinuka in a Quote or other Order. A Customer’s acceptance of a Quote constitutes an agreement to purchase Goods on the terms of that Quote and these Terms.

3.2. All Quotes are based on rates and charges in effect at the date of the Quote. Any increase in rates or charges will result in an equivalent increase in the quoted price. A Quote may be withdrawn at any time. A Quote will be valid for the term specified on the Quote. If no term is specified, the Quote is valid for 30 days.

3.3. Quotes are prepared in accordance with information provided to Kiwinuka by the Customer. Kiwinuka will not be liable nor will it be bound by the Quote where:

a) such information is inaccurate or any information omitted;
b) the Customer makes any variations to the work quoted for.

3.4. Kiwinuka may decline any Order in its sole discretion.

4. Price

4.1. The price of Goods shall be as agreed between Kiwinuka and the Customer, as specified in Kiwinuka’s price list (as amended from time to time), or in an Order or accepted Quote, as applicable. Unless otherwise stated, prices stated do not include GST, other taxes or levies, transport or insurance charges.

5. Payments, Discounts and Rebates

5.1. Payment for Goods charged to a Credit Account must be made in accordance with this clause 5. If the Customer does not have a Credit Account with Kiwinuka, payment must be made on placing an Order.

5.2. Where the Customer receives a volume based discount on Goods and the Customer fails to purchase the total volume of such Goods, Kiwinuka reserves the right to withdraw such discount and charge the Customer for the full price of the Goods without applying the discount.

5.3. Unless requested otherwise, invoices will be sent electronically. All accounts must be paid by the 20th of the month following invoice. If any item or part of any item in an invoice is disputed, the Customer shall notify Kiwinuka prior to the last business day of the month in which the invoice is submitted specifying the item disputed. Payment of a disputed invoice may be deferred only in respect of the disputed part of the invoice.

5.4. Kiwinuka reserves the right to suspend any discount or rebate and to restrict or withhold the supply of further Goods to the Customer if these payment terms are not strictly adhered to. If the Customer defaults in making payment Kiwinuka may:

(a) charge interest on all overdue invoices at Kiwinuka’s cost of borrowing plus 5% calculated from the due date to the date of the payment;

(b) charge the Customer all costs including legal fees (as between solicitor and client), debt collection charges and court costs incurred by Kiwinuka in recovering outstanding monies; and

(c) cancel this agreement and/or the Customer’s right to hold a Credit Account.

6. Security Interest

6.1. The Customer grants to Kiwinuka a security interest in the Goods as security for all amounts owing to Kiwinuka and the performance of the Customer’s obligations under these Terms.

6.2. Title in the Goods shall remain with Kiwinuka until there are no longer any amounts owing to Kiwinuka for those Goods. The Customer acknowledges receipt of these Terms of Trade and agrees that it will execute all documents required by Kiwinuka to maintain, register and enforce Kiwinuka’s security interest in respect of the Goods.

6.3. If Kiwinuka registers the security interest created by these Terms under the PPSA, the Customer waives its rights to receive a copy of the verification statements in terms of section 148 of the PPSA and also waives its rights under sections 121 and 131 of the PPSA. Kiwinuka and the Customer also contract out of Part 9 of the PPSA to the extent that the rights and obligations contained in sections 114, 125, 129, 132, 133 and 134 of that part of the PPSA do not apply as between Kiwinuka and the Customer.

6.4. The Customer agrees that:

a) the Customer will, upon receiving a written request from Kiwinuka and at its own cost and expense, promptly deliver all or any of the Goods to Kiwinuka. If the Customer fails to deliver the Goods upon request, Kiwinuka may at any time enter into any place where the Goods are located and remove the Goods;
b) Kiwinuka may sell all or any of the Goods without giving prior notice of the sale to the Customer;
c) it shall immediately notify Kiwinuka of any change in the Customer’s name, address or contact person details.

7. Warranties

7.1. To the extent permitted by law, all statutory, express or implied warranties by Kiwinuka including, without limitation, implied warranties of merchantability and fitness for any particular purpose are expressly excluded.

7.2. Colour and texture variations may occur in Goods due to:

a) the use of natural materials in the manufacturing process; and
b) normal manufacturing tolerances and processes.

The Customer agrees that such variations do not constitute a product defect and Kiwinuka shall not be liable for any loss or damage suffered by the Customer as a result of such variations.

8. Limitation of liability

8.1. The liability of Kiwinuka in respect of all claims for loss, damage or injury arising from a breach of any of Kiwinuka’s obligations under these Terms or from any act or omission of Kiwinuka is limited, in each case, to the lesser of:

a) replacement of the affected Goods;
b) payment of the actual cost of replacing the affected Goods; or
c) the price of the affected Goods

8.2. Kiwinuka shall not be liable for any direct or indirect loss or damage (including without limitation 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 Goods by Kiwinuka, except as set out in clause 8.1.

8.3. No action arising out of the supply of Goods by Kiwinuka, regardless of form, may be brought more than six months after the Customer becomes aware, or reasonably ought to have become aware, of the circumstances giving rise to the action.

9. Intellectual Property
9.1. All intellectual property rights in the Goods are and shall remain the property of Kiwinuka..

10. Risk

10.1. Risk in the Goods shall pass to the Customer upon delivery as set out in clause 10.2.

10.2. Delivery of Goods shall be deemed to occur at the point specified in an Order or Quote, or if no delivery point is specified, then:

a) when the Goods arrive at the address specified by the Customer (whether or not the Customer is present to acknowledge receipt), or
b) when the Customer takes possession of the Goods, whichever occurs first.

10.3. Kiwinuka may deliver Goods by instalments. If the Customer fails to pay for an instalment on the due date Kiwinuka may suspend deliveries of future instalments.

10.4. Where Kiwinuka delivers the Goods, the Customer shall:

a) ensure Kiwinuka has all-weather access to the site, to enable Kiwinuka to deliver the Goods safely;
b) obtain all necessary consents from the relevant local authority and inform Kiwinuka of all matters relating to such consents;

10.5. If the Customer collects the Goods from Kiwinuka, the Customer agrees that it shall comply with Kiwinuka’s rules applicable to health and safety at Kiwinuka’s site, including ensuring that they are inducted to an appropriate induction standard at the site. The Customer shall also assist Kiwinuka to provide and maintain a safe and healthy workplace where all hazards, unsafe acts and/or conditions are identified and analysed before being controlled by elimination/isolation or minimisation of the risk of harm.

10.6. The Customer must make any claims for short delivery within 48 hours of delivery of Goods by Kiwinuka, and must state the date of delivery of the Goods and the delivery docket number.

10.7. The despatch docket will set out the specifications of the Goods ordered by the Customer. The Customer shall be responsible for signing the despatch docket and for checking that such specifications are correct prior to the discharge of the Goods from Kiwinuka’s truck.

10.8. If the Customer refuses all or part of any Order upon delivery at a Customer’s site, the Customer shall be bound to make full payment for the Goods, together with all disposal costs in respect of the returned Order.

11. Returns and Cancellations

11.1. Kiwinuka is under no obligation to accept the cancellation of any Order or the return of Goods, which must be agreed to in writing by Kiwinuka. A failure or refusal to sign a despatch docket shall not be evidence of rejection of any Goods or cancellation of any Order, such rejection or cancellation to be notified in writing at least two hours prior to delivery.

11.2. Goods which are damaged before delivery to the Customer may be returned for replacement or credit by quoting the date of delivery and the despatch docket numbers or invoice number provided that:

a) the Goods are returned to Kiwinuka at Kiwinuka’s cost, or Kiwinuka is requested to uplift the Goods, within 48 hours of delivery; and
b) the Goods are in their original condition and packaging as supplied.

12. Consumer Guarantees Act 1993

12.1. Where Goods are being supplied for the purposes of a business, the Customer agrees that the Consumer Guarantees Act 1993 will not apply.
12.2. Where the supply of Goods is to a Customer who is a supplier (as defined in the Consumer Guarantees Act) the Customer covenants with Kiwinuka that it will not make or allow to be made in respect of the Goods supplied any statements or representations as to quality or description other than those made by Kiwinuka. The Customer hereby indemnifies and will keep indemnified Kiwinuka against any claims, losses, damages and costs which may be made against Kiwinuka in respect of statements or representations which are made contrary to the provisions of this clause.

13. Force Majeure

13.1. No claim or liability will arise against Kiwinuka under these Terms or any Order or Quote, if and to the extent that Kiwinuka’s failure or omission to carry out or observe any provisions of these Terms or any Order or Quote arises by reason of Force Majeure. “Force Majeure” means any event outside the reasonable control of Kiwinuka.

14. Termination

14.1. All outstanding monies shall become immediately due and payable from the Customer, and Kiwinuka reserves the right to immediately cancel any Order and/or the Customer’s right to hold a Credit Account, if the Customer:

a) ceases or threatens to cease carrying on business;
b) becomes unable to pay its debts as they fall due or otherwise becomes insolvent or bankrupt;
c) has a receiver or a receiver and manager appointed in relation to all or part of its assets, commences liquidation or is placed in statutory management; or
d) breaches any of these Terms and fails to remedy the breach within ten days of written notice requiring the breach to be remedied.

15. Privacy Act 1993

15.1. The Customer authorises Kiwinuka to collect, retain and use personal information about the Customer for the following purposes:
a) assessing the Customer’s creditworthiness;
b) administering the Customers’ Orders;
c) receiving information from one or more credit reference agencies, concerning the credit history of the Customer;
d) disclosing credit-related information to, and using the credit services of, one or more credit reference agencies, on a continuing basis at any time and entirely at its discretion concerning the Customer’s credit worthiness.

15.2. For the avoidance of doubt, all authorities given above are continuing authorities, to apply throughout the duration of the trading relationship.

15.3. The Customer, if an individual, has a right of access to personal information about the Customer held by Kiwinuka and may request correction of the information.

16. Disputes

16.1. The parties agree to use their best endeavours to promptly resolve any dispute or difference between them. If a dispute arises (“Dispute”), the party claiming that a Dispute has arisen shall serve notice on the other party stating the subject matter and details of the Dispute. After receipt of the notice, senior management of both parties shall meet within ten (10) working days and shall attempt in good faith to resolve the Dispute.

16.2. If the senior management fail to resolve the Dispute within twenty (20) working days of notice of the Dispute, either party may take such legal action including the commencement of legal proceedings as deemed appropriate or necessary to resolve or determine the Dispute.

17. Guarantee and Indemnity

17.1. The Guarantor/s of the Customer jointly and severally unconditionally guarantee to Kiwinuka the due and punctual payment by the Customer of all outstanding monies, and agree to keep Kiwinuka fully indemnified against all damages, losses, costs and expenses arising from any failure of the Customer to pay the monies hereby guaranteed.

17.2. As between the Guarantor/s and Kiwinuka the liability of the Guarantor/s shall be deemed to be that of principal debtor. This guarantee is in addition to and not in substitution for any other security or right which Kiwinuka may have in respect to the Customer’s indebtedness and may be enforced against the Guarantor/s without first having recourse to any such securities or rights and without taking steps or proceedings against the Customer.

17.3. The liability of the Guarantor/s shall not be affected by the granting of time, credit or any indulgence or other concession to the Customer or to any person giving any similar guarantee.

17.4. The guarantee and indemnity in this clause 17 is an irrevocable and continuing guarantee and indemnity and shall remain in full force until all obligations under the Customers’ credit account have been fully paid, satisfied or performed.

18. General

18.1. Waiver: Kiwinuka’s failure or delay to exercise or enforce any right it has under these Terms shall not operate as a waiver of Kiwinuka’s right to exercise or enforce such right or any other right in the future.

18.2. Severance: Should any part of these Terms be unenforceable such part shall be severed and the remainder of these Terms shall remain binding.

18.3. Confidentiality: Except as required by law both parties shall preserve as confidential any information of a confidential nature that they acquire in relation to the other.

18.4. Variation: Kiwinuka may at any time and in its sole discretion vary these Terms with immediate effect, by posting the revised Terms of Trade on Kiwinuka’s website at www.Kiwinuka.com/nz provided that Kiwinuka shall not make any variation to the nature or extent of the security interest granted by the Customer under clause 6 without the written agreement of the Customer. Kiwinuka may notify the Customer by delivering the Customer an invoice with a notice of amendment and receipt of that invoice will be deemed acceptance by the Customer of these Terms as amended.

18.5. No Partnership: Notwithstanding any provision of these Terms, the parties agree that the relationship between them is not and shall not be construed to be a partnership.

18.6. Further Acts: The Customer shall execute all documents and do all acts and things as may reasonably be required by Kiwinuka to carry into effect the matters contemplated by these Terms.

18.7. Entire Agreement: Except as otherwise agreed in writing, including in accordance with clause 1.2, these Terms constitute the entire agreement between the parties.

18.8. Notice: Any letter or notice given under these Terms will be validly and sufficiently given if sent by pre-paid post, facsimile or electronic mail to the address details notified by one party to the other from time to time. A notice sent by post shall be deemed to have been received on the third working day following the day of posting. A notice sent by facsimile or electronic mail shall be deemed to have been received on the date specified on the facsimile transmission receipt or email delivery receipt.

18.9. Jurisdiction: These Terms are governed by the laws of New Zealand and the parties submit to the exclusive jurisdiction of the New Zealand courts.

The Customer and Guarantors (if any) accept and agree to abide by this agreement and the Terms of Trade . The Customer confirms it has read Clause 8 of the Terms of Trade. For the avoidance of doubt, the Customer accepts that if it does not sign and return this agreement to you but still have you supply goods, the terms of this agreement will still apply. The Customer and Guarantors agree to be bound by the Terms of Trade displayed from time to time on Kiwinuka’s website at any given time and it is the Customer’s and Guarantors’ responsibility to review those Terms of Trade before ordering goods.