PART 1 : HOW TO READ THIS AGREEMENT
This Part 1 sets out how to read this agreement, and it applies to Part 2 and Part 3.
This a binding contractual agreement between you and us, Digicom Ventures Ltd. NZBN 9429047425231 operating under the business name “Kiwi Gadget Shop” (Kiwi Gadget Shop, our, we or us).
When you use any of the following websites:
(Website), the terms and conditions set out in Part 2 apply.
When you use the Website to offer to purchase any items listed for sale on our Website (Goods), the additional terms and conditions set out in Part 3 apply.
Please see Part 4 for the rules of interpretation that apply to this agreement.
By using this Website or purchasing Goods through this Website, you agree to be bound by the applicable Parts of these Terms.
We may change these Terms at any time by updating this page of the Website, and your continued use of the Website following such an update will represent an agreement by you to be bound by these Terms as amended. However, the Terms published on this Website at the time of sale will continue to apply to your Goods, even if we update these Terms.
PART 2 : WEBSITE TERMS AND CONDITIONS
This Part 2 applies when you use our Website.
1. YOUR OBLIGATIONS
You must only use the Website in accordance with these Terms and any applicable laws, and must ensure that your employees, sub-contractors and any other agents who use or access the Website comply with these Terms and any applicable laws. You must not:
(a) copy, mirror, reproduce, translate, adapt, vary, modify, sell, decipher or decompile any part or aspect of the Website without the express consent of Kiwi Gadget Shop;
(b) use the Website for any purpose other than the purposes of browsing, selecting or purchasing Goods;
(c) use, or attempt to use, the Website in a manner that is illegal or fraudulent or facilitates illegal or fraudulent activity;
(d) use, or attempt to use, the Website in a manner that may interfere with, disrupt or create undue burden on the Website or the servers or networks that host the Website;
(e) use the Website with the assistance of any automated scripting tool or software;
(f) act in a way that may diminish or adversely impact the reputation of Kiwi Gadget Shop, including by linking to the Website on any other website; and
(g) attempt to breach the security of the Website, or otherwise interfere with the normal functions of the Website, including by:
(i) gaining unauthorised access to Website accounts or data;
(ii) scanning, probing or testing the Website for security vulnerabilities;
(iii) overloading, flooding, mailbombing, crashing or submitting a virus to the Website; or
(iv) instigate or participate in a denial-of-service attack against the Website.
2. INFORMATION ON THE WEBSITE
(a) While we make every effort to ensure that the information on the Website is as up-to-date and accurate as possible, you acknowledge and agree that we do not (to the maximum extent permitted by law) guarantee that:
(i) the Website will be free from errors or defects (or both, as the case may be);
(ii) the Website will be accessible at all times;
(iii) messages sent through the Website will be delivered promptly, or delivered at all;
(iv) information you receive or supply through the Website will be secure or confidential; and
(v) any information provided through the Website is accurate or true.
(b) We may change any information or functionality on the Website by updating the Website at any time without notice, including product descriptions, prices and other Website Content.
(c) Any information or frequently asked questions on our Website are for general information purposes only and are not a substitute for any product manuals or advice warnings that may come with Goods you purchase in accordance with Part 3.
3. ACCOUNTS
If you create an account with us, you are responsible for ensuring the security of your account, and for ensuring that no unauthorised access is granted to third parties. You must not use your account to post offensive or threatening content on the Website.
4. INTELLECTUAL PROPERTY
(a) Kiwi Gadget Shop retains ownership of the Website and all materials on the Website (including text, graphics, logos, design, icons, images, sound and video recordings, pricing, downloads and software) (Website Content) and reserves all rights in any intellectual property rights owned or licensed by it not expressly granted to you.
(b) You may make a temporary electronic copy of all or part of the Website for the sole purpose of viewing it. You must not otherwise reproduce, transmit, adapt, distribute, sell, modify or publish the Website or any Website Content without prior written consent from Kiwi Gadget Shop or as permitted by law.
(c) In this clause 4, ‘intellectual property rights’ means all copyright, trade mark, design, patent, semiconductor and circuit layout rights, trade, business, company and domain names, confidential and other proprietary rights, and any other rights to registration of such rights whether created before or after the date of this agreement both in New Zealand and throughout the world.
5. THIRD PARTY TERMS AND CONDITIONS
The Customer acknowledges and agrees that third party terms & conditions (Third Party Terms) may apply. The Customer agrees to any Third Party Terms applicable to any third party goods and services, and Kiwi Gadget Shop will not be liable for any loss or damage suffered by the Customer in connection with such Third Party Terms.
6. LINKS TO OTHER WEBSITES
The Website may contain links to other websites that are not our responsibility. We have no control over the content of the linked websites, and we are not responsible for that content. The inclusion of any linked website on the Website does not imply our approval or endorsement of the linked website.
7. SECURITY
Kiwi Gadget Shop does not accept responsibility for loss or damage to computer systems, mobile phones or other electronic devices arising in connection with use of the Website. You should take your own precautions to ensure that the process that you employ for accessing the Website does not expose you to risk of viruses, malicious computer code or other forms of interference.
8. REPORTING MISUSE
If you become aware of misuse of the Website by any person, any errors in the material on the Website or any difficulty in accessing or using the Website, please contact us immediately using the contact details or form provided on our Website.
9. PRIVACY
You agree to be bound by Kiwi Gadget Shop’ Privacy Policy, which can be found on our Website.
PART 3 : SUPPLY TERMS AND CONDITIONS
This Part 3 applies when you purchase Goods through our Website.
1. ORDER FOR GOODS
(a) By submitting an order to purchase Goods using the Website’s functionality (Purchase Order) you represent and confirm that you:
(i) have the legal capacity and are of sufficient age to enter into a binding contract with us; and
(ii) are authorised to use the debit or credit card included in your order.
(b) Submitting a Purchase Order constitutes your intention and offer to enter into a contract, where we will provide you with the Goods you have ordered in exchange for your payment of the total amount listed upon checkout. A contract is not formed until we have approved your payment and you receive an email from us confirming that your order is being processed.
10. PAYMENT
(a) (Payment obligations) Unless otherwise agreed in writing, you must pay for all Goods on or prior to Kiwi Gadget Shop dispatching the Goods for delivery.
(b) (GST) Unless otherwise indicated, amounts stated on the Website do include GST. In relation to any GST payable for a taxable supply by Kiwi Gadget Shop, you must pay the GST subject to Kiwi Gadget Shop providing a tax invoice.
(c) (Card surcharges) Kiwi Gadget Shop reserves the right to charge credit card surcharges in the event that payments are made using a credit, debit or charge card (including Visa, MasterCard, American Express or Diners Club).
(d) (Verification) We may ask you to provide identification, such as a driver’s licence or passport, to verify your transaction and protect against fraud.
(e) (Online payment partner) We may use third-party payment providers, such as Afterpay or PayPal (Payment Providers) to collect payments for Goods. The processing of payments by the Payment Provider will be, in addition to these Terms, subject to the terms, conditions and privacy policies of the Payment Provider and we are not liable for the security or performance of the Payment Provider. We reserve the right to correct, or to instruct our Payment Provider to correct, any errors or mistakes in collecting your payment. We reserve the right to seek documents verifying your identity before processing any transaction.
(f) (Pricing errors) In the event that we discover an error or inaccuracy in the price at which your Goods were purchased (including shipping prices), we will attempt to contact you and inform you of this as soon as possible. You will then have the option of purchasing your order at the correct price, or cancelling your order. If you choose to cancel your order and payment has already been debited, the full amount will be credited back to your original method of payment.
11. CANCELLATION
While we always endeavour to fulfil your orders, we may need to cancel your order where we cannot provide the Goods, and we will notify you of this as soon as possible. This may occur due to non-availability of stock, an act of God such as a severe weather event, where we believe the transaction is fraudulent, or where the delivery address is not reachable by our service providers.
Where payment has already been debited, the full amount will be credited back to your original method of payment, unless you want to use the amount as credit towards a different Good that we can supply.
12. DELIVERY AND SHIPPING
(a) (Delivery) Delivery is payable by you as displayed on our Website. Where delivery prices are quoted, delivery is to the delivery point specifically accepted by us.
(b) (Shipping) All delivery times provided to you are estimates only and are subject to postal delays and reasons beyond our control. We do not warrant or make any representation that your order will be delivered within the times indicated. We will not be liable for any loss or damage suffered as a result of or in connection with late deliveries.
13. TITLE AND RISK
(a) (Title) Title to the Goods will pass to you when we receive your payment for the Goods in full. The Goods will not be dispatched until payment is received, or an arrangement for Afterpay is accepted by us.
(b) (Risk) Risk in the Goods will pass to you on delivery. Delivery must not be refused by you.
14. CUSTOMS AND DUTIES
Kiwi Gadget Shop reserves the right to refuse international orders. Approved international orders may be subject to customs and import duties upon reaching its country of destination. You will be responsible for paying all customs and import duties and acknowledge that failure to pay may result in your order being held at customs. We will not be liable for any costs you may incur in having your order released from customs, including reimbursing you for any customs or import duties you may pay.
15. REPAIRS, RETURNS & EXCHANGES
(a) (Proof of Purchase) As a condition precedent to us considering any refund or exchange, you must be able to provide valid proof of purchase of the Goods you seek to return or exchange.
(b) (Change of mind returns) Generally, we do not accept change of mind returns. However, we may consider accepting returns in our absolute discretion, subject to your payment of up to $100 in administration fees to account for the services we will need to perform to accommodate your change of mind return, as well as shipping costs. Change of mind returns will only be issued if:
(i) the Goods are new, unused and in their original packaging (Original Condition);
(ii) the Goods are returned within 10 business days of you receiving the Goods; and
(iii) we agree, in our absolute discretion, in writing to accept return of the Goods.
(c) (Faulty products) The following process applies to any Goods you believe to be faulty.
(i) If you believe your Goods are faulty, please contact us using the details provided on our website with a full description of the fault (including images).
(ii) (Assessment of fault) If we determine that your Goods may be faulty, we will request that you send the product back to us at your cost for further inspection, including any accessories, manuals, documentation or registration shipped with the product. We reserve the right to further inspection before deeming a product faulty.
(iii) (Not faulty) If we determine in our reasonable opinion that the product is not faulty, or the fault is due to fair wear and tear, misuse, failure to use in accordance with the manufacturer’s instructions, or failure to take reasonable care, we will refuse your return. We are able to repair the issue and send the product back to you at your cost.
(iv) (Faulty) If we determine that the Good are faulty, we will endeavour to repair the faulty Goods for you at our cost. If the faulty Goods cannot be repaired, we will replace the Goods at our cost, or provide you with a refund. All refunds will be credited back to your original method of payment unless you request otherwise and we approve this request. The costs of shipping of replacement products will be covered customers (both ways).
(v) If you fail to comply with the provisions of this clause 8 in respect of faulty Goods, we may, in our absolute discretion, issue only a partial refund or no refund in respect of such faulty Goods.
(vi) Nothing in this clause 8 is intended to limit or otherwise affect the operation of any manufacturers’ warranties which you may be entitled to or any of your rights which cannot be excluded under applicable law (including the Fair Trading Act & Consumer Guarantee Act).
(vii) If at all the refunds are agreed, the customer must send the goods back to our warehouse at their own cost. Refunds will be issued only after investigating the returned products.
(d) (Timeframe) All requests for refunds or exchanges must be made within 10 days from the date of receiving the Goods, except where the Goods are faulty.
(e) (Subcontracts) We may subcontract any repair work to be performed under these Terms without further notice to you.
16. LIMITATION OF LIABILITY
(a) To the maximum extent permitted by applicable law, Kiwi Gadget Shop excludes completely all liability to any person for loss or damage of any kind, however arising whether in contract, tort (including negligence), statute, equity, indemnity or otherwise, arising from or relating in any way to the Goods. This includes any personal injury or death.
(b) Claims for loss of or damage to Goods in transit must be made against the carrier.
(c) Kiwi Gadget Shop warrants that the Goods will be fit for purpose and are of merchantable quality for a period of one year from the date of purchase. These warranties do not cover Goods that are listed as refurbished or used, any damage to the Goods caused by your misuse or failure to take reasonable care, or any Goods that have been opened, repaired or modified by you or a third party.
(d) All other express or implied representations and warranties are, to the maximum extent permitted by applicable law, excluded. Where any law (including the Fair Trading Act & Consumer Guarantee Act) implies a condition, warranty or guarantee into these Terms which may not lawfully be excluded, then to the maximum extent permitted by applicable law, Kiwi Gadget Shop’ liability for breach of that non-excludable condition, warranty or guarantee will, at Kiwi Gadget Shop’ option, be limited to:
(i) in the case of goods, their replacement or the supply of equivalent goods or their repair; and
(ii) in the case of services, the supply of the services again, or the payment of the cost of having them supplied again.
(e) (Indemnity) You indemnify Kiwi Gadget Shop and its employees and agents in respect of all liability for loss, damage or injury which is or may be suffered by any person arising from your or your representatives’ use of the Goods.
(f) (Consequential loss) To the maximum extent permitted by law, under no circumstances will Kiwi Gadget Shop be liable for any incidental, special or consequential loss or damages, or damages for loss of data, business or business opportunity, goodwill, anticipated savings, profits or revenue arising under or in connection with the Goods, (except to the extent this liability cannot be excluded under the Fair Trading Act & Consumer Guarantee Act.
PART 4 : RULES OF INTERPRETATION
This Part 4 sets out the rules of interpretation that apply to this agreement.
1. NOTICES
(a) A notice or other communication to a party under this agreement must be:
(i) in writing and in English; and
(ii) delivered via email to the other party, to the email address specified in this agreement, or if no email address is specified in this agreement, then the email address most regularly used by the parties to correspond for the purposes of the subject matter of this agreement as at the date of this agreement (Email Address). The parties may update their Email Address by notice to the other party.
(g) Unless the party sending the notice knows or reasonably ought to suspect that an email was not delivered to the other party’s Email Address, notice will be taken to be given:
(i) 24 hours after the email was sent; or
(ii) when replied to by the other party, whichever is earlier.
2. GOVERNING LAW AND JURISDICTION
This agreement is governed by the law applying in Auckland, New Zealand. Each party irrevocably submits to the exclusive jurisdiction of the courts of Auckland, New Zealand and courts of appeal from them in respect of any proceedings arising out of or in connection with this agreement. Each party irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.
3. AMENDMENTS
This agreement may be amended by updating this Website. The terms and conditions of Part 3 will apply as published on this Website at the time of purchase.
4. WAIVER
No party to this agreement may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.
5. SEVERANCE
Any term of this agreement which is wholly or partially void or unenforceable is severed to the extent that it is void or unenforceable. The validity and enforceability of the remainder of this agreement is not limited or otherwise affected.
6. ASSIGNMENT
A party cannot assign, novate or otherwise transfer any of its rights or obligations under this agreement without the prior written consent of the other party.
7. COSTS
Except as otherwise provided in this agreement, each party must pay its own costs and expenses in connection with this agreement.
8. ENTIRE AGREEMENT
This agreement embodies the entire agreement between the parties and supersedes any prior negotiation, conduct, arrangement, understanding or agreement, express or implied, in relation to the subject matter of the agreement.
9. SURVIVAL
Any clause which by its nature is intended to survive the expiration or termination of this agreement shall survive indefinitely.
10. DETAILED INTERPRETATION
In this agreement, the following rules of interpretation apply:
(h) (singular and plural) words in the singular includes the plural (and vice versa);
(i) (gender) words indicating a gender includes the corresponding words of any other gender;
(j) (defined terms) if a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;
(k) (person) a reference to ‘person’ or ‘you’ includes an individual, the estate of an individual, a corporation, an authority, an association, consortium or joint venture (whether incorporated or unincorporated), a partnership, a trust and any other entity;
(l) (party) a reference to a party includes that party’s executors, administrators, successors and permitted assigns, including persons taking by way of novation and, in the case of a trustee, includes any substituted or additional trustee;
(m) (this agreement) a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure is a reference to a party, clause, paragraph, schedule, exhibit, attachment orannexure to or of this agreement, and a reference to this agreement includes all schedules, exhibits, attachments and annexures to it;
(n) (document) a reference to a document (including this agreement) is to that document as varied, novated, ratified or replaced from time to time;
(o) (headings) headings and words in bold type are for convenience only and do not affect interpretation;
(p) (includes) the word ‘includes’ and similar words in any form is not a word of limitation; and
(q) (adverse interpretation) no provision of this agreement will be interpreted adversely to a party because that party was responsible for the preparation of this agreement or that provision.
