Terms of Supply of Products
Terms
of Supply of Products
Last updated: 08 March 2023
PART A – TERMS APPLYING TO ALL CUSTOMERS
1. INFORMATION ABOUT US
1.1. Our Website, which includes www.KiwiGifts.co.nz and
www.KiwiGifts.com.au, is operated by KiwiGifts Limited (“We” or “Us”), a
limited liability company registered in New Zealand. Although we are located in
New Zealand, we ship orders from both domestically within New Zealand and
internationally.
2. TERMS OF SUPPLY OF GOODS
2.1. These Terms of Supply of Products (“Terms of Supply”)
apply to any contract between us (“Contract”) for the sale or supply of any
merchandise, goods, or other products (“Products”) to you. These Terms of
Supply, together with our Terms and Conditions and any other documents forming
part of our Terms and Conditions (as described in our General Terms and
Conditions of Use), should be read carefully before you place an order. We
recommend that you print a copy of all relevant documents for future reference.
2.2. By ordering any Products from us, you agree to be bound
by our Terms and Conditions, including these Terms of Supply, as amended from
time to time.
2.3. If you refuse to accept our terms, you will not be able
to order any Products from us.
3. HOW THE CONTRACT IS FORMED
BETWEEN YOU AND US:
3.1. Our Order Process will guide you through the steps you
need to take to place an order for a Product with us. You will need to provide
all required information. Our Order Process allows you to check and amend any
errors before submitting your order to us. Please take the time to read and check
your order at each step of the Order Process.
3.2. After you place an order, you will receive an e-mail
from us acknowledging that we have received your order. However, this does not
mean that your order has been accepted. Our acceptance of your order will take
place as described in clause
3.3. We will confirm our acceptance to you by sending you a
Dispatch Confirmation e-mail that confirms that the order has been accepted and
the Products have been dispatched. The Contract between us for the Products
will only be formed when we send you the Dispatch Confirmation.
3.4. We reserve the right to reject any order you place at
our complete discretion. If we choose not to accept an order for a Product, we
will inform you of this by e-mail and we will not process your order. If you
have already paid for the Products, we will refund you the full amount
including any delivery costs charged as soon as possible. We, as the seller,
will have no further liability to the buyer in relation to the rejected part of
that order. Reasons for rejecting an order may include the Product not being in
stock, no longer available, inability to meet your requested delivery date, or
an error in the price on Our Website.
3.5. All orders are subject to the availability of Products.
We may revise our range of Products or the specification of any Product at any
time and without notice to you.
3.6. We are entitled to correct all errors and omissions
(whether clerical, computational, or otherwise) in any advertising, quotation,
invoice, or acknowledgement. Due to our administrative processes, errors (if
any) may be discovered up to 30 days after the goods have been delivered to
you. We will promptly notify you of any error or omission we discover and give
you the option of returning the goods for a full refund.
3.7. If you wish to modify or cancel an order you have
placed with us, you must receive our written acceptance for it to take effect.
In the event that we do accept your cancellation (solely at our discretion), we
may impose a handling fee of up to 15% of the purchase price that would have
otherwise applied.
4. OUR RIGHT TO MODIFY THESE
TERMS
4.1. The Terms and Conditions in force at the time of your
order will apply to the Contract between you and us. However, we reserve the
right to revise these Terms and Conditions for any existing order you have
placed with us in the following circumstances:
4.1.1. To reflect changes in relevant laws and regulatory
requirements; and
4.1.2. As reasonably necessary due to circumstances beyond
our control.
4.2. If we have to revise our Terms and Conditions for an
existing order from you, we will provide you with reasonable advance notice of
the changes and explain how to cancel the Contract if you are dissatisfied with
the changes. You can cancel the Contract in respect of all affected Products
you have ordered, or just the Products you have yet to receive. If you cancel,
we will arrange a full refund of the price you have paid, including any
delivery charges, and you will have to return (at our cost) any relevant
Products you have already received.
5. DELIVERY OF PRODUCTS
5.1. Once we have confirmed acceptance of your order, we
will give you an estimated delivery date.
5.2. You can cancel a Contract if it has been affected by an
Event Outside Our Control that has continued for more than 30 days. To cancel,
please contact us. If you cancel, we will arrange a full refund of the price
you have paid, including any delivery charges, and you will have to return (at
our cost) any relevant Products you have already received.
5.3. Delivery of an Order will be considered complete once
we hand over the Products to the carrier, and the Products will be your
responsibility from that point forward. You can specify delivery instructions
for your order (for example, authorizing the delivery agent to leave the
products in a particular location if you will not be at the delivery address).
We are not responsible for any order delivered or attempted to be delivered in
accordance with your delivery instructions.
5.4. You are solely responsible for ensuring that your order
complies with all applicable laws and regulations of the country to which the
Products are destined. We will not be liable or responsible if you break any
such laws.
5.5. Prices do not include import fees, duties, tariffs,
taxes or other imposts or charges which may be payable in relation to your
order, except for New Zealand Goods and Services Tax (as applicable depending
on the shipment delivery address and unless otherwise stated). You are solely
responsible for paying any import fees, duties, taxes, and other imposts or
charges that are payable in relation to your order.
5.6. If you order Products from our site for delivery to one
of the International Delivery Destinations including Australia, your order may
be subject to import duties and taxes which are applied when the delivery
reaches that destination. Please note that we have no control over these
charges and we cannot predict their amount. You will be solely responsible for
payment of any such import duties and taxes. Before placing your order, please
contact your local customs office for further information. Also, note that New
Zealand law requires all international packages to have attached customs
documentation describing the goods being sent and their cost.
5.7. We will strive to dispatch your order within the
specified timeframe for a particular product. If we are unable to dispatch your
order within the specified timeframe, we will try to contact you and inform you
of the expected dispatch date. Quotations of delivery times made by us are
estimates and not binding, and we will not be liable for any loss, expense, or
other damage resulting from any delay in delivery.
5.8. We may choose to
deliver your order in one shipment or in multiple instalments. If we fail to
deliver any instalment, you cannot cancel the entire contract, but you may
cancel any undelivered instalments until they are confirmed.
5.9. Ownership of the products will only transfer to you
once we have received full payment, including applicable delivery charges, and
the carrier has received the products.
5.10. If there is a shortage in the quantity of products
delivered, we will make up the shortfall. You must inform us of any such claim
within 7 days of delivery and give us a reasonable opportunity to investigate.
5.11. Orders delivered within New Zealand are insured
against damage or loss during transit up to NZ$1,500 in value. Orders delivered
internationally using the New Zealand Post International Air service are
insured up to NZ$250, but additional insurance up to NZ$1,500 can be purchased.
We are not liable for any loss or damage exceeding the applicable insurance
coverage.
5.12. We will ensure that the products are adequately packed
before leaving our premises. Any claims for loss or damage during transit must
be made against the carrier in the prescribed manner.
5.13. Before acknowledging delivery to the carrier, you must
confirm that you have received the complete consignment as per the carrier's
note. If there is a shortage or visible damage to the outer packaging, the
carrier's note must be endorsed accordingly.
5.14. Within 7 days of receiving the consignment, you must
verify that all goods received are in good condition. Claims for damages will
not be considered after 7 days of receipt. Although we do not accept liability
for goods damaged or lost during transit, please notify us of any such claims.
5.15. Occasionally, events beyond our control may affect the
delivery of your order. Please refer to the General Terms for our
responsibilities in such situations.
6. PRODUCT PRICING AND DELIVERY
CHARGES
6.1. We reserve the right to change the prices of our
Products at any time at our discretion.
6.2. The prices of the Products you order will be the prices
quoted on our website at the time you place your order, unless there is an
error in the pricing. If we discover an error, we will inform you and give you
the option to either purchase the product at the correct price or cancel your
order. We will not process your order until we receive your instructions. If we
cannot reach you using the contact details provided during the ordering
process, we will cancel the order and notify you in writing. If you have
already paid for the Products, and the order is cancelled, we will refund the
amount paid.
6.3. Prices for delivery to New Zealand or Australian
addresses include GST unless otherwise stated. No GST will be charged if the
order is shipped to an address outside New Zealand or Australia.
6.4. The price of a Product includes applicable GST charges
at the current rate in New Zealand or Australia (depending on the shipment
delivery address) at the time of purchase. If the GST rate changes between the
date of purchase and the date of delivery, we will adjust the GST charge,
unless you have already paid for the Products in full before the change takes
effect.
6.5. Delivery charges are not included in the Product price.
Delivery charges will be provided to you during the checkout process before you
confirm your order. To view relevant delivery charges, please refer to our
Delivery Charges help page.
7. PAYMENT OPTIONS
7.1. Payment for Products may only be made using the payment
options provided at the time of ordering.
7.2. Payment for the Products and applicable delivery charges
is required in advance, but we will not charge your debit or credit card until
we dispatch your order. Exceptions are: i. Pre-authorizing your card as valid
as required by your bank, which usually involves putting a $1 “Authorisation
Hold” charge on your credit card to validate that your credit card details are
correct. The charge is automatically removed within 7 days (usually faster) and
you are not charged the $1 fee. ii. Verifying card ownership. iii. When your
order is shipped by a third party.
7.3. By making a payment, you confirm that you have the
authority to accept applicable payment terms and terms and conditions for the
Products you request through our website. You also agree to meet your payment
obligations promptly, efficiently, diligently, professionally, and in
accordance with relevant laws.
7.4. You represent and warrant that you are at least 18
years old and have the legal capacity to contract in New Zealand. If you use a
credit or debit card, you represent and warrant that the card is issued in your
name, and you will pay all charges incurred through the charged services. If
you make payments using a third-party payment gateway such as PayPal, you must
adhere to any additional terms advised by the relevant payment service
provider.
7.5. Payment through our online service payment process is
secure, but you acknowledge that internet transmissions are not entirely secure
or private. While we take precautions to minimize risks, we cannot guarantee
that any information you provide, including credit card information, will not
be read or intercepted by unauthorized third parties. We are not liable for the
interception, hacking, or unauthorized access of information by third parties.
7.6. You are responsible for ensuring that the transaction,
credit card information, and other details you provide for payments made
through our online service payment process are correct.
7.7. We reserve the right to decline payment from you by
your chosen payment method for any reason, including but not limited to:
7.7.1. If our fraud detection systems identify possible
irregularities;
7.7.2. If your financial institution declines the payment;
or
7.7.3. If your payment card has expired.
If any of the reasons outlined in section 7.7 occur,
KiwiGifts will put your order on hold and reach out to you for additional
information or request payment by another method. This may include providing
proof of identity type documents. If you are unable to meet KiwiGifts' requests
within the specified timeframe, your order may be cancelled.
8. WARRANTIES AND RETURN OF GOODS
8.1. Goods supplied in accordance with your order can only
be returned with our express approval.
8.2. Please refer to our Returns Policy to see what is
expressly covered and excluded.
8.3. To the maximum extent permitted by law however, and
subject to the express contents of our Product Warranties and Returns Policy
and our obligations under the Consumer Guarantees Act 1993 (which are not
affected by anything in our Terms and Conditions):
8.3.1. we disclaim all other warranties, representations,
and guarantees (whether, express, implied, or statutory), with respect to any
product or any information supplied by us including, but not limited to,
warranties of availability, accuracy, non-infringement, completeness, timeliness,
currency, merchantability, or fitness for a particular purpose;
8.3.2. our maximum liability (whether in contract, tort, or
otherwise) for any loss, damage, or injury arising from any defect in, or
non-compliance of, a product supplied to you will be limited to the price paid
by you for that product or service;
8.3.3. we will not be liable (whether in contract, tort, or
otherwise) for any loss of profits, or any indirect, incidental, consequential,
or economic loss or damage (howsoever caused), which you may directly or
indirectly suffer in connection with your access to, use of, or reliance upon,
any product or any information supplied to you by us;
8.3.4. Our potential liability is confined to the original
purchaser of any Products from us, it being agreed that we have no liability to
any purchaser of the goods from us in that our rights under the contract are
not assignable without our prior written consent; and
8.3.5. The warranty does not cover damage from misuse,
accident, negligent, inappropriate or improper operation, maintenance,
installation, modification or adjustment.
9. DESCRIPTION OF PRODUCTS
9.1. Modifications and improvements are constantly being
made to our Products, prices and data.
9.2. Although we have endeavoured to ensure that the product
and pricing information provided on Our Website is accurate, complete, and
current, we do not provide any representations or warranties as to its
accuracy, completeness or currency of information, and we shall not be
responsible or liable for any inaccurate, incomplete, or out-of-date
information on Our Website.
9.3. We also rely on information from our suppliers and
product manufacturers and therefore the descriptions, illustrations and
literature are not binding on us.
9.4. If the goods do not match the description on Our
Website, you should inform us immediately so that we may take the appropriate
action.
10. COMPLIANCE AND AGE RESTRICTIONS
10.1. You are solely responsible for obtaining any necessary
permits under (and for compliance with) all legislation, regulations, by-laws
and rules that apply to the use of any products you purchase from us.
10.2. We are subject to legal obligations regarding the sale
of classified and age-restricted materials, and will not knowingly sell or
supply any age-restricted Products or materials of any kind to a person under
the legally prescribed age for that classification. You confirm that when
placing any orders with us, you are not obtaining an age-restricted product for
yourself or on behalf of a person that is not of the required legal age for
obtaining that product.
11. CURRENCIES
11.1. Except where specifically stated in relation to a
particular product, the prices for the products are stated and are payable in
New Zealand dollars (NZD) on www.KiwiGifts.co.nz.
Any currency conversion will take place online at the rate applicable at the
time of purchase.
12. GIFT VOUCHERS
12.1. Gift vouchers will not be exchanged and are not
subject to returns for credit or refunds. Gift vouchers cannot be used to buy
more gift vouchers. We will not replace a gift card that is lost or stolen
after being received.
12.2. Credit applied from Gift vouchers must be used within
12 months.
13. GOVERNING LAW
13.1. Any claim or dispute arising hereunder shall be
subject to arbitration in accordance with the Arbitration Act 1996.
13.2. These conditions of use shall be governed by the laws
of New Zealand and the courts of New Zealand shall have non-exclusive
jurisdiction to hear and determine any dispute arising in relation to these
terms and conditions.
14. FORCE MAJEURE
14.1. We shall not be liable to you, the buyer, for any loss
or damage, directly or indirectly arising out of or in connection with any
delay in delivery of the goods, or failure to perform any term of this contract
where such delay or failure is outside the seller's reasonable control,
including but not limited to:
14.1.1. an act of God (such as, but not limited to, fires,
explosions, earthquakes, drought, tidal waves and floods);
14.1.2. riot, commotion, strikes, go slows, lock outs or
disorder, unless solely restricted to employees of the Supplier or of our
Subcontractors; or
14.1.3. acts or threats of terrorism.
PART B - ADDITIONAL TERMS WHICH APPLY IF YOU ARE A BUSINESS CUSTOMER
If you are purchasing any goods or services from us in the
course of, or for the purposes of, any business activity you are involved with,
the following terms and conditions will also apply in relation to those goods
and services:
1. CONSUMER GUARANTEES ACT 1993
1.1. You agree
that our goods and services are supplied to you for business purposes and that
the provisions of the Consumer Guarantees Act 1993 do not apply.
2. CREDIT, PAYMENT AND SECURITY
TERMS
2.1. Payment
Obligations and Consequences of Default: You agree that unless we have
specifically agreed otherwise with you in writing, you must pay for all
Products, in full and without any setoff or deduction, before delivery of the
Products is due. If however we have agreed at our discretion to provide you
with any ability to pay for Products using credit or other deferred payment
options, you agree that you must make payment in full by the due date for such
payments. If you fail to pay any amount owing to us by the due date for that
amount:
2.1.1. Default
Interest: we may charge you default interest at a rate equivalent to our
bank's base lending rate at the time plus 5% per annum, with such interest
payable on the amount overdue during the period from the due date until payment
is made in full of both the principal and all interest thereon;
2.1.2. Costs:
you will be liable for all expenses and legal costs (as between solicitor and
client) incurred by us as a result of any breach by you of our Terms and
Conditions or in recovery or attempted recovery of any monies owed by you to
us; and
2.1.3. Suspension
and/or Cancellation of other orders and your Account: we may, at our sole
discretion if you have failed to make any payment to us, take various steps
including without limitation:
2.1.3.1. demanding
immediate payment of all amounts owing to us on that or any other orders from
you (whether or not those amounts were otherwise payable yet);
2.1.3.2. refuse to
accept or process any further orders from you;
2.1.3.3. withhold
delivery of any products to you (whether or not the subject of the order in
question or otherwise); and/or
2.1.3.4. temporarily
suspend or permanently cancel your account with us; and
2.1.3.5. we will not be
liable to you in any way for the consequences of any such steps taken in
response to your default on payment obligations.
2.2. Security
Interests: you acknowledge and agree that until we have received full
payment for your order (without deduction or setoff of any kind), and
regardless of whether we have already delivered the Products to you:
2.2.1. Our Terms
and Conditions constitute a security agreement for the purposes of section 36
of the Personal Property Securities Act 1999;
2.2.2. We retain a
security interest in all Products that you have not yet paid for in full, and
you irrevocably agree that you:
2.2.2.1. will sign any
further documents and provide any further information which we may reasonably
require to register a financing statement or financing change statement on the
Personal Property Securities Register;
2.2.2.2. indemnify us
for all expenses incurred in registering a financing statement or financing
change request on the Personal Property Securities Register or releasing any
item charged thereby;
2.2.2.3. will not
register a financing change statement or a change demand on the Personal
Property Securities Register without our prior written consent;
2.2.2.4. will give us
not less than 14 days' prior written notice of any proposed change in your name
or any of your contact details; and
2.2.2.5. waive your
right to receive a verification statement in accordance with section 148 of the
Personal Property Securities Act 1999.
3. If you intend to resell or
supply products to other parties, you must agree and warrant to the following
terms:
3.1. You must
only resell the products on terms and conditions that are consistent with those
on which we supplied the products to you and with any requirements expressed by
the relevant manufacturers. You must not give any warranties or representations
regarding the products that have not been approved by the relevant
manufacturer, and you must not do anything that is inconsistent with the rights
of the manufacturer, which may include us. You must obtain all necessary
permits, approvals, authorizations, licenses, and consents and comply with all
applicable laws and regulations related to your activities. You must not
modify, relabel, repackage, or alter the products without fully disclosing such
changes. You must not claim or imply any partnership, joint venture, or any other
arrangement or status between you and us. You must not link to our website or
use any of our intellectual property, including pictures or descriptions of the
products from our website, without our prior written consent.
3.2. You
acknowledge and agree that you are responsible for determining the fitness and
suitability of the products for your purposes. We are not liable to you or any
other party for your trading activities, and you assume sole liability for all
such matters. We have the right to determine, in our sole discretion, whether
to continue accepting further orders from you at any time. We are not liable to
you for any loss of profits, regardless of whether such losses were
foreseeable.