POLICY VERSION: T181211
By accessing any Websites of KIWE INTERNATIONAL PTY LTD (collectively “KIWE” or "Seller") or otherwise indicating acceptance as set forth below, you are agreeing to the following terms and conditions (as modified from time to time), and each time that you access the KIWE Website you re-assert your agreement. If you do not agree with these terms and conditions, then you may not access or use the www.kiwe.com.au or any other KIWE Website.
In order to access certain KIWE e-Commerce Websites and Portals, you must present a valid password and user ID. Your password is your sole responsibility, and you must take all necessary actions to safeguard the security of your password and its use in accessing KIWE Website and ordering product via KIWE. You agree not to challenge the validity or enforceability of any order made via KIWE with your password. You must not disclose your password to any person who is not authorised to use the password on your behalf. You will be solely responsible for all unauthorised use of your password by your employees or third parties, except where caused solely and directly by KIWE negligence. KIWE highly recommends that you change your password periodically, and that you change your password immediately when you have reason to believe that your password security has been compromised.
2. Terms and Conditions of Sale
All sales of products and finished goods offered and supplied by Seller to its customer (“Buyer”) for resale (“Products”) shall be pursuant to the following standard terms and conditions. Any conflicting terms in your purchase order or elsewhere are without effect unless signed by the applicable party(ies). All Buyer purchases from KIWE are deemed to be purchases pursuant to a written agreement.
2.a. ACCEPTANCE: Buyer's acceptance of these Terms and Conditions shall be indicated by any of the following, whichever first occurs: (a) Buyer's written acknowledgement hereof, (b) Buyer's submission of an order to KIWE INTERNATIONAL PTY LTD, regardless of whether the Product(s) ordered is ever delivered or if the purchase order is completely or partially fulfilled, rejected, modified or cancelled; (c) Buyer’s receipt of any part of the items specified for delivery in any purchase order submitted to KIWE INTERNATIONAL PTY LTD, (c) Buyer’s application for credit submitted to KIWE INTERNATIONAL PTY LTD, (d) accessing any KIWE e-Commerce Websites, or (e) any other act or expression of acceptance by Buyer. Buyer's acceptance is expressly limited to the Terms and Conditions in their entirety without addition, modification or exception and any term, condition, or proposal hereafter submitted by Buyer (whether oral or in writing), which is inconsistent with or in addition to the Terms and Conditions set forth hereon is objected to and is hereby rejected by Seller. Seller's silence or failure to respond to any such subsequent term, condition or proposal shall not be deemed to be Seller's acceptance or approval thereof.
2.b. ORDERS: KIWE reserves the right to schedule and re-schedule any order, with notice to Buyer, at KIWE’s reasonable discretion, and to decline any order for any reason, or no reason, in KIWE’s sole discretion.
2.c. DELIVERY: Delivery shall be made in accordance with Seller's shipping policy in effect on the date of shipment. Product title and risk of loss will transfer to Buyer upon KIWE tendering the Product for delivery to the carrier. If Buyer requests special shipping or handling, including expedited shipment, third-party billing, or freight collect, Buyer shall be responsible filing claims with the carrier and all freight and handling costs. Buyer shall pay for any special routing, packing, handling or insurance requested by Buyer and agreed to by KIWE INTERNATIONAL PTY LTD. Orders shipped under special routing instructions must be separately agreed upon and may be subject to additional charges. KIWE will not be subject to requirements of non-compliance programs of Buyer, including charges for product delays, missing/inaccurate shipping documents, labelling or product markings.
2.d. Buyer shall promptly notify Seller, no later than 24 hours from invoice date, of any claimed shortages or rejection as to any delivery, with the exception of deliveries that reveal external shipping damage, which, in some instances, must be refused immediately upon delivery by the carrier. Such notice shall be in writing and shall be reasonably detailed stating the grounds for any such rejection. Failure to provide any such notice within such time shall be deemed an acceptance in full of any such delivery. Seller shall not be liable for any shipment delays that affect Seller or any of Seller's suppliers, including but not limited to delays caused by unavailability or shortages of Products from Seller's suppliers, natural disasters, acts of war or terrorism, acts or omissions of Buyer, fire, strike, riot, or governmental interference, unavailability or shortage of materials, labour, fuel or power through normal commercial channels at customary and reasonable rates, failure or destruction of plant or equipment arising from any cause whatsoever, or transportation failures.
2.e. PRICES: Prices payable by Buyer for the Products are specified on the invoice. Seller does not offer price protection. Buyer shall bear all applicable federal, provincial, municipal and other government taxes (such as sales, use and similar taxes), as well as import or customs duties, license fees and similar charges, however designated, levied on this sale or the Products (or the delivery thereof) or measured by the purchase price hereunder.
2.f. PAYMENT TERMS: Buyer shall provide all financial information reasonably requested by KIWE from time to time for the purpose of establishing or continuing Buyer’s credit limit. Buyer agrees that KIWE shall have the right to decline or extend credit to Buyer and to require that the applicable purchase price be paid prior to shipment. KIWE shall have the right from time to time, without notice, to change or revoke Buyer’s credit limit on the basis of changes in KIWE’s credit policies or Buyer’s financial condition and/or payment record.
Payment terms are normally cash with order, or cleared funds before delivery unless the Customer has a credit account with KIWE in place prior to despatching. KIWE will issue an official receipt as a proof of payment to Customers who pay by cash. A receipt will only be issued for cheque payments upon request.
When payment is made by Mastercard and Visa Credit Card for online ordering via the KIWE eCommerce Portal on COD and CBD payment terms, the Credit Card Surcharge is waived. This applies only to Mastercard and Visa Credit Cards.
2.g. The Customer requests that KIWE supply goods and/or services for which the Customer undertakes to pay KIWE the agreed price(s) within the terms agreed, or if no such terms have been agreed, by cleared funds before delivery. Upon the Customer completing the KIWE Dealer Application Form and KIWE approving a COD or credit account, KIWE will accept a company cheque at the time of delivery. A credit account may be granted to Customers at the sole discretion of KIWE. Details of the credit account will be notified separately. Customers who have credit account should always maintain their account with KIWE within the credit limit and payment terms provided. Payment is required immediately if the account exceeds the credit limit and/or is outside the payment terms. KIWE reserves the right to cancel credit accounts without prior notice. All overdue amounts are subject to a penalty interest rate of 3% per annum above the prevailing prime lending rate, calculated on an overdue balance on a daily basis.
2.h. In the event of the Customer failing to pay any outstanding account owing by the Customer to KIWE or the Customer entered into any scheme of arrangement with their creditors or is going into receivership or liquidation, KIWE shall:
(a) Be entitled to a general lien on all property or goods belonging to the Customer in KIWE’s possession for any outstanding amount owing by the Customer to KIWE.
(b) Has the right to offset the amounts outstanding in all accounts and the net balance will become due and payable immediately.
(c) Reserves the right to cancel the credit account without prior notice and all balances owing will become due and payable immediately.
2.i. In the event of any default in payment to KIWE for more than 60 days by the Customer or where a demand has been made against a guarantor of the Customer’s account, KIWE may in its absolute discretion record the default with KIWE’s credit information provider.
2.j. The Customer hereby charge in favour of KIWE all right title and interest in any land held now by the Customer alone or jointly with anyone or acquired by the Customer at any time hereafter. In the event of any default in payment to KIWE, the Customer specifically authorise KIWE to lodge a Caveat against any dealings with any such property.
2.k. In the event of any default in payment to KIWE, the Customer shall pay to KIWE costs of and incidentals to the recovery of such sums as may be due, including all mercantile and like fees and legal fees and charges on a solicitor, filing fees, stamp duty, taxes or any other fees payable, or incurred in relation to such recovery process.
2.l. Credit card surcharge will apply on the full amount paid by credit card or Moneytech dealer card accepted by KIWE in the following rate:
(a) A 1.5% (excluding GST) or 1.65 (GST inclusive) on Mastercard or Visa credit card payment.
(b) A 2.2% (excluding GST) or 2.42% (GST inclusive) on American Express credit card payment.
2.m. There will be a $15.00 (excluding GST) charge for all returned cheques. At the sole discretion of KIWE, credit or COD accounts of Customers, who have a bounced cheque record, may be cancelled without prior notice, with any future orders placed by the Customer being paid on CBD (cash or clear fund before delivery) terms.
3. PRODUCT RETURNS
Return of Products purchased from KIWE shall be governed by Seller's product return policies in effect on the date of return. Seller reserves the right to modify or eliminate such policies at any time. Although Seller's policies may permit Buyer to return Products claimed to be defective under certain circumstances, Seller makes no representations or warranties of any kind with respect to the Products.
4.a. RESALE ONLY/EXPORT: All Products delivered to Buyer hereunder are for resale only and shall not be used for the internal business purposes of Buyer, or any parent company, subsidiary, or affiliate of Buyer. All Products delivered to Buyer hereunder, if sold in the Australia, are intended for use in Australia only. Shipment of the Products outside Australia may require a valid export license and the approval of the manufacturers of such Products.
5.a. WARRANTIES; INDEMNITY: Buyer acknowledges that KIWE is not the manufacturer of the Products that will be sold to it, and that KIWE therefore will have no responsibility for, among other things, product warranties. Product warranties, if any, are provided by the manufacturer or publisher of the Products. KIWE’s sole obligation (and Buyer’s sole remedy) in the event of breach of any warranty shall be to assist the Buyer in its efforts to have the manufacturer repair or replace defective Product(s).
6. THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE AND NON-INFRINGEMENT AND FOR ALL OTHER OBLIGATIONS OR LIABILITIES ON KIWE PART.
KIWE NEITHER ASSUMES, NOR AUTHORISES ANY OTHER PERSON TO ASSUME FOR KIWE INTERNATIONAL PTY LTD, ANY OTHER LIABILITY IN CONNECTION WITH THE SALE OF PRODUCTS TO BUYER. THIS WARRANTY SHALL NOT APPLY TO ANY UNITS OF PRODUCTS WHICH SHALL HAVE BEEN REPAIRED OR ALTERED OTHER THAN BY KIWE OR WHICH SHALL HAVE BEEN SUBJECT TO MISUSE, NEGLIGENCE, OR ACCIDENT. KIWE SHALL NOT BE LIABLE FOR PERSONAL INJURY RESULTING DIRECTLY OR INDIRECTLY FROM THE DESIGN, MATERIAL, OPERATION OR INSTALLATION OF ANY UNITS OF PRODUCTS.
Buyer further acknowledges that KIWE will have no responsibility for any claims for infringement of intellectual property rights pertaining to distribution, sale or use of the Products. KIWE SHALL HAVE NO DUTY TO DEFEND, INDEMNIFY OR HOLD HARMLESS BUYER FROM AND AGAINST ANY OR ALL DAMAGES AND COSTS INCURRED BY BUYER ARISING FROM THE INFRINGEMENT OF PATENTS OR TRADEMARKS OR THE VIOLATION OF COPYRIGHTS.
7. LIMITATION OF LIABILITY
KIWE SHALL NOT BE LIABLE TO BUYER, BUYER’S CUSTOMERS, OR ANY OTHER PARTY FOR ANY LOSS, DAMAGE, OR INJURY THAT RESULTS FROM THE USE OR APPLICATION BY BUYER, BUYER’S CUSTOMER, OR ANY OTHER PARTY, OF PRODUCTS DELIVERED TO BUYER, UNLESS THE LOSS OR DAMAGE RESULTS DIRECTLY FROM THE INTENTIONALLY TORTIOUS OR FRAUDULENT ACTS OR OMISSIONS OF KIWE. IN NO EVENT SHALL KIWE BE LIABLE TO BUYER OR ANY OTHER PARTY FOR LOSS, DAMAGE, OR INJURY OF ANY KIND OR NATURE ARISING OUT OF OR IN CONNECTION WITH THESE TERMS AND CONDITIONS, OR ANY AGREEMENT INTO WHICH THEY ARE INCORPORATED, OR ANY PERFORMANCE OR NONPERFORMANCE UNDER THESE TERMS AND CONDITIONS BY KIWE INTERNATIONAL PTY LTD, ITS EMPLOYEES, AGENTS OR SUBCONTRACTORS, IN EXCESS OF THE NET PURCHASE PRICE OF THE PRODUCTS OR SERVICES ACTUALLY DELIVERED TO AND PAID FOR BY BUYER HEREUNDER. IN NO EVENT SHALL KIWE BE LIABLE TO BUYER OR ANY OTHER PARTY FOR INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO LOSS OF GOOD WILL, LOSS OF ANTICIPATED PROFITS, OR OTHER ECONOMIC LOSS ARISING OUT OF OR IN CONNECTION WITH KIWE’S BREACH OF, OR FAILURE TO PERFORM IN ACCORDANCE WITH ANY OF THESE TERMS AND CONDITIONS, OR THE FURNISHING, INSTALLATION, SERVICING, USE OF PERFORMANCE OF ANY PRODUCTS OR INFORMATION KIWE SHALL PROVIDE HEREUNDER, EVEN IF NOTIFICATION HAS BEEN GIVEN AS TO THE POSSIBILITY OF SUCH DAMAGES.
The receiving party shall protect the confidentiality and secrecy of the disclosing party’s Confidential Information and shall prevent any improper disclosure or use thereof by its employees, agents, contractors or consultants, in the same manner and with the same degree of care (but in no event less than a reasonable degree of care) as it uses in protecting its own information of a confidential nature for a period of three (3) years from the date of such disclosure. Each party agrees to provide notice to the other immediately after learning of or having reason to suspect a breach of any of the restrictions. Notwithstanding the foregoing, each party may disclose the other party’s Confidential Information if and to the extent that such disclosure is required by applicable law, provided that the receiving party uses reasonable efforts to limit the disclosure and provides the disclosing party a reasonable opportunity to review the disclosure before it is made and to interpose its own objection to the disclosure.
9. Each party retains for itself all proprietary rights it possesses in and to all of its own Confidential Information. Accordingly, Confidential Information which the disclosing party may furnish to the receiving party shall be in the receiving party’s possession pursuant only to a restrictive, non-transferable, non-exclusive license under which the receiving party may use such Confidential Information under the terms of this Agreement, solely for the purposes of satisfying its obligations hereunder. Each party understands that the party receiving Confidential Information may now or in the future be developing proprietary information internally, or receiving proprietary information from third parties in confidence that may be similar to disclosed Confidential Information. Nothing in this Agreement shall be construed as a representation or inference that the receiving party will not develop products, for itself or others, that compete with the products, processes, systems or methods contemplated by disclosed Confidential Information.
Each party acknowledges that any material violation of the rights and obligations provided may result in immediate and irreparable injury to the other party, and hereby agrees that the aggrieved party shall be entitled to immediate temporary, preliminary, and permanent injunctive relief against any such continued violations upon adequate proof, as required by applicable law. Notwithstanding each party hereby submits itself to the personal jurisdiction of the courts of competent subject matter jurisdiction for purposes of entry of such injunctive relief.
10.a. ELECTRONIC COMMUNICATIONS DISCLAIMER:
Seller is not liable for any failure of the KIWE service, EDI service, or any other form of electronic communication (collectively, "Electronic Communication") to transmit, receive, store or handle documents or perform related activities. KIWE does not represent or warrant that the information accessible via the KIWE Website is accurate, complete or current. Price and availability information is subject to change without notice.
10.b. Buyers must properly use security procedures, which are reasonably sufficient to ensure that all electronic transmissions of documents to Seller are authorised and shall be responsible for any such unauthorised transmissions.
Any order properly transmitted in accordance with these terms and conditions is considered to be "in writing"; and any order containing a code is deemed (a) to have been "signed" and (b) to constitute an "original" when printed from electronic files or records established and maintained in the normal course of business. Buyer and Seller agree not to contest the validity or enforceability of orders as to whether certain agreements are to be in writing or signed.
10.c. Independent Contractor: KIWE and Buyer are and shall be independent contractors to one another, and nothing herein shall be deemed to cause this Agreement to create an agency, partnership, or joint venture between the parties.
11. Force Majeure
Neither party shall be liable to the other for any delay in performance or failure to perform, in whole or in part, due to labour dispute, strike, war or act of war (whether an actual declaration is made or not), insurrection, riot, civil commotion, act of public enemy, accident, fire, flood, earthquake, or other act of God, act of any governmental authority, judicial action, computer virus or worm, or similar causes beyond the reasonable control of such party. If any event of force majeure occurs, the party affected by such event shall promptly notify the other party of such event and take all reasonable actions to avoid the effect of such event.
Both parties agree to negotiate in good faith the settlement of any disputes that may arise under this Agreement. If necessary, such disputes shall be escalated to appropriate senior management of each party. In the event that such good faith settlements fail, excluding any and all disputes, any and all other disputes and controversies of every kind and nature between the parties arising out of or in connection with the existence, construction, validity, interpretation, or meaning, performance, non-performance, enforcement, operation, breach, continuance, or termination of this Agreement. This Agreement will be governed by the laws of Victoria, Australia. Should there be any controversy or dispute arising from or related to the Agreement, the Parties agree to resort to the arbitration in Victoria, Australia. In the event of any litigation arising out of this Agreement or its enforcement by either party, the prevailing party shall be entitled to recover as part of any judgement, reasonable attorneys’ fees and court costs.
All written notices required by this Agreement must be delivered in person or by means evidenced by a delivery receipt and will be effective upon receipt.
USE OF THE KIWE E-COMMERCE WEBSITE IS ON AN "AS IS" BASIS AND KIWE MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WITH RESPECT TO THE WEBSITE OR RELATED PRODUCTS. KIWE DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN ADDITION, KIWE DOES NOT REPRESENT OR WARRANT THAT THE INFORMATION ACCESSIBLE VIA THE KIWE WEBSITE IS ACCURATE, COMPLETE OR CURRENT. PRICE AND AVAILABILITY INFORMATION IS SUBJECT TO CHANGE WITHOUT NOTICE.
15. Limitation on Use
Buyer hereby acknowledges that Products are not intended for use in life support systems, critical care applications, human implantation, commercial aviation, nuclear facilities or systems or any other applications where product failure could lead to injury to persons or loss of life or catastrophic property damage. KIWE hereby disclaims any liability or responsibility for risk of loss, expenses, cost, liability, litigation and/or potential adverse verdict or judgment in relation to any such use of the products.
16. Limited License
The information and databases provided to you via certain KIWE e-Commerce Websites is licensed to you by KIWE for your use only in the ordinary course of your business for your review, selection and purchase of products from KIWE INTERNATIONAL PTY LTD. This license is non-exclusive, non-transferable, and may be terminated by KIWE with or without cause at any time.
17. Limitation of Liability
Except as specifically stated herein, neither KIWE nor any of its directors, employees or other representatives will be liable for damages arising out of or in connection with your use of any KIWE Website. This is a comprehensive limitation of liability that applies to all damages of any kind, including (without limitation) compensatory, direct, indirect or consequential damages, loss of data, income or profit, loss of or damage to property and claims of third parties.
IN NO EVENT SHALL KIWE BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE, SPECIAL OR OTHER DAMAGES WHATSOEVER RESULTING FROM OR RELATED TO BUYER’S USE OF ANY KIWE AUSTRALIA WEBSITE OR KIWE PERFORMANCE OR FAILURE TO PERFORM UNDER THIS AGREEMENT OR THE FURNISHING, PERFORMANCE OR USE OF ANY PRODUCT(S) SOLD PURSUANT HERETO, WHETHER DUE TO BREACH OF CONTRACT, BREACH OF WARRANTY, STRICT LIABILITY, PRODUCT LIABILITY, PERSONAL INJURY, THE NEGLIGENCE OF KIWE OR OTHERWISE. KIWE LIABILITY SHALL BE LIMITED SOLELY TO THE REPAIR, REPLACEMENT OR CREDIT OF THE PRODUCT(S), AT KIWE OPTION.
You agree to defend, indemnify and hold KIWE and its affiliates, and their respective directors, officers, employees and agents, harmless from and against any and all liabilities, costs and expenses, including reasonable attorneys' fees, arising from or in any way relating to your use of any KIWE Websites or any Product acquired from KIWE INTERNATIONAL PTY LTD.
These Terms and Conditions, along with (a) the terms and conditions on any KIWE invoice, (b) the terms and conditions of the KIWE credit application, and (c) the terms and conditions of any other agreement signed by authorized representatives of both Buyer and Seller, sets forth the entire agreement and understanding of the parties relating to the subject matter herein. In the event of a conflict between these various terms and conditions, they will take effect in the following order of precedence: (1) any signed agreement between the parties; (2) the terms and conditions on any KIWE Invoice, (3) these Terms and Conditions, and (4) the terms and conditions in Buyer’s credit application to KIWE. Any terms and conditions on Buyer’s purchase order or any other document not signed by KIWE shall have no force and effect.
Notwithstanding the foregoing, if Buyer and Seller have executed an agreement that specifically supersedes and replaces or modifies any or all of the Terms and Conditions, the terms of such Agreement shall control. No additional or different terms of conditions, whether material or immaterial, shall become a part of these Terms and Conditions unless expressly accepted in writing by an authorised officer of Seller. Any waiver by Seller of one or more of these Terms and Conditions or any defaults hereunder shall not constitute a waiver of the remaining Terms and Conditions or any future defaults hereunder. It is the intention of the parties that these Terms and Conditions shall be enforceable to the fullest possible extent, regardless of any partial invalidity or unenforceability, and that no failure or delay by either party in exercising or enforcing any right hereunder shall operate as a waiver thereof or preclude any other exercise or enforcement of rights hereunder. The rights and obligations of Buyer under the Terms and Conditions may not be assigned by Buyer without the prior written consent of Seller (which shall not be unreasonably withheld).
KIWE may modify the information and functionality of any KIWE Website at any time. KIWE reserves the right, in its sole discretion, to modify, alter or otherwise update these Terms and Conditions at any time, and you agree to be bound by such modifications, alterations or updates. Any modifications, alterations or updates to these Terms and Conditions will be available to you on the KIWE Website, and you agree to regularly check the KIWE Website for new versions of these Terms and Conditions.
20. Governing Law
This Agreement will be governed by the laws of the State of Victoria, Australia, excluding the application of its conflicts of law rules. If any part of this Agreement is found void and unenforceable, it will not affect the validity of the balance of the Agreement, which shall remain valid and enforceable according to its terms. Buyer agrees to pay court costs and reasonable legal fees incurred in the collection of any unpaid balances whether or not suit is filed.
BY ACCESSING ANY KIWE WEBSITES, YOU ACCEPT ALL THE TERMS AND CONDITIONS WITHIN THIS AGREEMENT (KIWE: TERMS AND CONDITIONS), IN ADDITION ACCEPT THE TERMS AND CONDITIONS OUTLINED IN THE KIWE DEALER APPLICATION FORM. BOTH TERMS AND CONDITIONS ARE APPLICABLE ON ALL TRANSACTIONS BETWEEN KIWE AND THE BUYER.
©2018 KIWE INTERNATIONAL PTY LTD. All Rights Reserved.