Terms and Conditions

These Terms and Conditions govern your use of Kinetics’ products and services and your relationship with Outsource IT Limited (“we,” “us,” “our”). By applying for and using a Kinetics account, you (“you,” “your”) agree to be bound by these terms. These terms govern all your orders and any Service Agreements with Kinetics.

1. Definitions

Products – Any equipment, hardware, software (excluding Customised Software), or other goods supplied by Kinetics.
Services – Any services Kinetics agrees to provide, including IT support, consulting, cloud or hosting services, project work, etc., as specified in a Service Agreement or order.
Customised Software – Software specifically developed by Kinetics for you, as opposed to off-the-shelf software.
Service Agreement – An agreement or order form (including the account application and any future service requests) used to request Products or Services from Kinetics. Each accepted Service Agreement, together with these terms, forms a contract between you and Kinetics.
Confidential Information – Any non-public information disclosed by one party to the other in connection with the Services, including business data, customer data, technical information, etc..
PPSA – The Personal Property Securities Act 1999, and PPSR refers to the Personal Property Securities Register under that Act.
Agreement – Refers collectively to these Terms and Conditions and any Service Agreement(s) between us and you.

2. Acceptance of Terms

2.1 Application of Terms: By signing the Kinetics account application or by requesting any Products, Services or Customised Software from Kinetics, you acknowledge that you have read and agree to be bound by these terms and conditions. These terms apply to all current and future requests and orders you place with Kinetics, except to the extent expressly varied in writing by mutual agreement.

2.2 Authority: If you are requesting Products or Services on behalf of a company or other entity, you warrant that you have the authority to bind that entity to this Agreement. Kinetics may require evidence of your authority or a personal guarantee if you are not the Customer named on the account.

2.3 Business or Consumer: These terms apply to both business and personal customers. If you are acquiring Products or Services for personal, domestic use (i.e. not “in trade”), then the New Zealand Consumer Guarantees Act 1993 (“CGA”) applies and nothing in this Agreement limits your rights under the CGA. If you are acquiring Products or Services in trade for business purposes, you agree that the provisions of the CGA do not apply and, to the extent permitted by law, both parties contract out of sections of the Fair Trading Act 1986 that can be contracted out of.

3.        Term of Agreement

3.1 Ongoing Contract: This Agreement commences when Kinetics accepts your account application or Service Agreement and continues until terminated in accordance with these terms. There is no fixed term unless otherwise agreed in writing for a specific Service. Either party may terminate the Agreement by giving 30 days’ written notice to the other. (For avoidance of doubt, the rights of termination for breach in clause 14 are separate and apply notwithstanding this provision.)

3.2 No Term Contracts: Kinetics does not require a fixed-term commitment for standard services under this Agreement. Clauses imposing early termination fees or fixed contract periods do not apply, so you may terminate on notice as set out above without penalty (aside from paying for Products/Services delivered up to termination).

4. Quotes and Pricing

4.1 Prices: The price for Products and Services will be as agreed in writing between you and Kinetics, or if no specific price is quoted, our standard rates or fees in effect at the time of your request will apply. All prices are in New Zealand dollars and exclusive of GST and any other applicable taxes or duties unless stated otherwise.

4.2 Quotes: Any written quote provided by Kinetics is valid for 30 days from the date of issue, unless otherwise specified. Quotes are estimates based on the information available to us at the time. If you provide incomplete or inaccurate information or request changes or additional services after a quote is given, we may reasonably increase the price to cover any extra costs. We may withdraw or revise a quote at any time before your written acceptance of the quote. Clerical or computational errors in a quote are subject to correction.

4.3 Variations: All orders and requests are subject to these terms. Any variation to the Products or Services (including any change in scope of work or specifications) must be agreed by both parties in writing. If we have reasonably relied on your initial instructions which later change or prove inaccurate, you may be responsible for any costs incurred and we reserve the right to charge for the original agreed work if already performed.

5. Payment Terms

5.1 Invoice and Due Date: Kinetics will invoice you for Products and Services. Unless otherwise agreed in writing, you must pay each invoice in full on or before the 20th day of the month following the date of our invoice. Payment must be made in full without any deduction, set-off, counterclaim or withholding. We may require a deposit for certain orders or projects, which will be stated at the time of order if applicable.

5.2 Late Payment: If any invoice is not paid by the due date, we may at our discretion do any or all of the following:
(a) Charge interest on the overdue amount at the rate of 1.5% per month (or part month) from the day after the due date until payment in full. Interest will accrue monthly and be payable on demand.
(b) After giving you notice of non-payment, if the invoice remains unpaid 10 days after such notice, charge a late payment fee of up to 10% of the unpaid amount.
(c) Recover from you all costs incurred by Kinetics in recovering the debt, including collection agency fees, PPSR registration fees, and reasonable solicitor’s fees on a solicitor-client basis.

5.3 Allocation of Payments: We may apply any payment you make to any outstanding charges as we see fit (for example, applying payments to preserve any purchase money security interest we have in Products). If you do not specify, payments will be allocated to the oldest debt first or as otherwise preserves our security interest in the Products.

5.4 Disputed Bills: If you dispute any portion of an invoice, you must notify Kinetics before the due date with details of the dispute. You may withhold payment of the disputed portion while we investigate, but must pay the undisputed portion by the due date. We will investigate promptly. If we find an error, we will issue a corrected invoice or a credit. If we confirm the original invoice, you must pay the remaining amount immediately upon resolution. Late payment interest and fees under clause 5.2 may accrue on any amount ultimately found payable from the original due date.

5.5 Third-Party Payments: You remain responsible for payment even if you expect to be reimbursed by a third party (for example, if you are billing your customer for our services). If a third party fails to pay you, you must still pay us.

6. Delivery of Products and Services

6.1 Delivery Timeframes: Kinetics will use reasonable efforts to deliver Products and perform Services within any timeframes agreed, or if no specific time is agreed, within a reasonable time. You acknowledge that any specified delivery or project dates are estimates and not guaranteed time-essences, except where expressly agreed (for example, emergency support services). We are not liable for any delay or failure to meet a delivery date due to causes beyond our reasonable control, such as supplier delays, shipping issues, or force majeure events.

6.2 Partial Delivery: We reserve the right to make partial deliveries of Products or Services and invoice each part separately. A delay or issue with one installment does not entitle you to cancel other installments.

6.3 Delivery Completion and Risk: Delivery of Products is deemed complete when we (or our agent) have delivered the goods to the address you specified, or handed them over to a carrier arranged by either party, or when we notify you that the Products are ready for pickup and you fail to collect them as agreed. From the moment of delivery (or deemed delivery), you assume all risk of loss or damage to the Products. You agree to have appropriate insurance in place once risk has passed to you, including during transit if you arrange carriage or if the Products are held at our premises on your behalf. If installation of any Equipment at your premises requires landlord or third-party consent, you must obtain that consent before installation.

6.4 Title and Ownership: Ownership (legal title) in any Products remains with Kinetics and does not pass to you until we have received full payment for those Products (and any other amounts owing by you to Kinetics). This retention of title is a security interest for purposes of the PPSA. Clause 10 below (Ownership and Security) provides more detail on our security rights.

6.5 Customer’s Failure to Take Delivery: If you fail or refuse to take delivery of any Products at the agreed time, delivery will be deemed to have occurred when we attempted delivery. We may charge you for any storage, insurance, and additional handling costs we incur as a result. You will still be required to pay for the Products as if they were delivered.

7. Customer Responsibilities

7.1 Provide Accurate Information: You are responsible for providing all information, specifications, and instructions that we reasonably need to supply the Products and Services. You warrant that all information you provide to us (such as technical requirements, site plans, or contact details) is accurate, complete, and not misleading. We will rely on this information to deliver our Services; any inaccuracies may result in additional costs as per clause 4.3.

7.2 Proper Use and Directions: Whenever we provide Services or Products, you must follow any instructions or directions given by Kinetics on their use. You agree to use the Products and Services only for lawful purposes and in accordance with any applicable licenses or terms of use. Any user of the Services or Products under your control must also comply with these terms.

7.3 Site Access and Environment: If our personnel need access to your premises or systems to perform Services (e.g. installation or support), you will ensure we have safe and prompt access, including any necessary security clearances or permits. The site should have appropriate facilities (e.g. power, network, environment) as needed for the Services. You agree to comply with any health and safety obligations and ensure our staff are not exposed to undue risks on your premises.

7.4 Backup of Data: You are responsible for backing up and protecting your data, unless protected by a KARE agreement that includes backups.  Unless expressly agreed in writing, our Services (such as equipment installation or repair) do not include data backup or recovery. We are not liable for any loss of or damage to data or software on your systems in the course of providing Services, so please ensure critical data is securely backed up before we work on your systems.

7.5 No Misuse: You must not misuse any Products or Services or allow anyone else to do so. This includes avoiding any abuse, neglect, alteration, or unauthorized repair of supplied Products. Products should be used in accordance with manufacturer’s or our guidelines. If you fail to comply and this causes an issue, warranties may be void and you will be responsible for any resulting damage or costs.

7.6 Consequences of Breach: If you do not meet your responsibilities above and that failure causes us loss, damage, or additional cost, you will be liable for those consequences in full. For example, if inaccurate information from you causes rework, or lack of backup causes extra efforts, you must cover those reasonable costs.

8. Warranties and Service Guarantee

8.1 Standard of Service: Kinetics warrants that it will provide the Services with reasonable care and skill, and in accordance with all applicable laws and good industry practice. Our commitment is to deliver competent and reliable services, but we do not warrant that our Services will be completely error-free or uninterrupted, as some downtime or faults may occur despite our best efforts.

8.2 Product Warranties: To the extent available, we will pass on to you the benefit of any manufacturer’s or third-party warranties for Products supplied. We do not separately warrant Products beyond what the manufacturer or supplier provides, except as required by law. Any software (including Customised Software) is provided “as is” unless otherwise agreed, but we will use reasonable efforts to ensure any Customised Software performs in accordance with its specifications.

8.3 No Other Warranties: Except as expressly stated in this Agreement, all conditions or warranties (express or implied, statutory or otherwise) are excluded to the fullest extent permitted by law. In particular, if you are in trade (business customer), then you and Kinetics agree to contract out of the Consumer Guarantees Act 1993 and sections 9, 12A and 13 of the Fair Trading Act 1986 (and any other provisions of those Acts that the law permits us to contract out of). If you are a consumer, these terms are to be read subject to any mandatory consumer protection laws.

8.4 Limited Remedy: If we supply Products or Services that fail to conform to the above warranties, our obligation (at our choice) is to repair or replace the faulty Products, or re-perform the relevant Services, or refund the price paid for them, provided you have notified us of the issue within a reasonable time. In the case of services provided negligently, we will correct errors caused by that negligence within a reasonable time at no cost (this is our “service guarantee”). Any claim under this clause must be made within the warranty period of the product or within 72 hours of delivery/performance for other claims, as applicable (see clause 9.1).

8.5 Exclusions: Our warranties do not cover any problem caused by: (a) misuse, alteration or damage to a Product by you or a third party; (b) use of a Product for a purpose it was not intended; (c) failure to follow our or the manufacturer’s instructions; or (d) repairs or modifications by someone other than us or our authorized service providers. These will void any warranty. We also cannot guarantee that any software or service will be immune to cyber-attacks, malware, or unauthorised access, though we will take reasonable precautions (see Security in clause 11).

8.6 Disclaimer of Certain Losses: We are not liable for any loss of data, security breaches, or system failures to the extent these are caused by factors outside our reasonable control (for example, unforeseen malware attacks or third-party sabotage). We are also not liable for delays in service due to causes beyond our control (see Force Majeure clause 15.6).

8.7 Limitation of Liability: In no case will Kinetics be liable to you for any indirect, consequential, incidental, or special damages, including lost profits, lost data, business interruption, or opportunity costs, even if we were advised of the possibility of such losses. To the fullest extent permitted by law, Kinetics’ total aggregate liability to you for all claims arising under or in connection with this Agreement or any Products/Services supplied, whether in contract, tort (including negligence) or otherwise, is limited to the total amount you paid for the specific Product or Service that gave rise to the claim. This limitation does not exclude any liability we may have which cannot legally be limited or excluded, including any liability under the CGA (if applicable) or for personal injury caused by our negligence.

9. Claims and Returns

9.1 Defective Products/Services: If you believe any Product or Service supplied is defective or not in accordance with this Agreement, you must notify Kinetics as soon as possible. For Products or Customised Software with a warranty, you must notify us of the defect within the applicable warranty period. For Services or one-time deliverables, you must notify us of any issues within 72 hours of delivery or completion.

9.2 Inspection and Remedy: We may request the opportunity to inspect or test any Product you claim is defective. Do not dispose of or alter the Product before we have inspected it or given you written permission to do so. If we accept the claim, we will, at our discretion, repair or replace the Product or re-perform the Service, or provide an appropriate refund or credit according to clause 8.4. Any replacement product will re-attach the same terms (for example, using remaining warranty period of the original, unless otherwise provided).

9.3 Return of Products: Where a Product is to be returned to us (for repair, replacement or refund), it must be returned in the same condition as delivered, fair wear and tear excepted. You are responsible for any damage to the Product that occurs before it is returned to us. In some cases, we may facilitate repairs under manufacturer warranty by directing you to an authorized repair center or handling the process for you.

9.4 Non-Warranty Returns: If you return a Product outside the scope of a valid warranty claim (for example, you ordered the wrong item or no longer need it), acceptance of such return is at Kinetics’ discretion. If accepted, we may charge a restocking fee and require that the Product be in new, resaleable condition with all original packaging.

10.            Ownership and Security Interest (PPSR)

10.1 Retention of Title: Kinetics retains legal and equitable ownership of all Products supplied to you until all amounts you owe to us have been paid in full. This means that even after delivery, if you have not yet paid for the Product, it remains our property. You must not sell, charge, or otherwise deal with the Product except as part of your ordinary business (e.g., using it or on-selling stock in trade) until ownership passes to you.

10.2 Security Interest: You agree that our retention of title in Products creates a purchase money security interest (PMSI) in those Products and any proceeds, as defined in the PPSA. In addition, you grant us a security interest in all of your present and after-acquired personal property connected with any Products or Services we provide (to the value of the amounts owed). This is to secure payment of all amounts you owe us and performance of your obligations.

10.3 PPSR Registration: You consent to Kinetics registering a financing statement on the Personal Property Securities Register (PPSR) to record our security interests in the Products and their proceeds. You agree to provide us any information and execute any documents we reasonably require to register, maintain, or enforce our security interest.

10.4 Customer Waivers under PPSA: As far as allowed under the PPSA, you: (a) waive your right to receive a copy of any verification statement or financing change statement relating to our security interest (per PPSA s148); (b) agree that sections 114(1)(a), 133 and 134 of the PPSA shall not apply to our enforcement of our security interest; and (c) waive your rights under sections 107(2)(c)-(i) of the PPSA. This means, for example, that we do not need to notify you before selling goods we repossess, to the extent the law permits.

10.5 No Other Security Interests: You must not grant any other security interest or charge over the Products that ranks ahead of or in conflict with Kinetics’ interest until you have paid in full and ownership passes. For instance, you will not use unpaid Products as collateral for other financing without our written consent.

10.6 Identification of Unpaid Goods: Until ownership passes to you, you will store and label the Products in such a way that they are clearly identifiable as goods supplied by Kinetics. You must take care of the Products and keep them in good condition. We have the right to inspect stored unpaid Products upon reasonable notice.

10.7 Change of Details: You agree to give Kinetics at least 7 days’ prior written notice of any change in your company or trading name, ownership, or contact details (including address, email, phone) to ensure our PPSR registration and credit records remain accurate.

10.8 Recovery of Products: If you default in payment or any of the events in clause 14.2 occur, then subject to any mandatory law:
(a) Kinetics may exercise all rights of a secured party under the PPSA and, in particular, may enter any premises where it believes the Products may be located to inspect or repossess those Products. You irrevocably license us to enter such premises for that purpose, and you (and your landlords) agree to reasonably facilitate our entry and retrieval of Products. We will give you reasonable notice (for example, 7 days) of our intention to take possession, unless immediate entry is permitted by law or for protection of the Products.
(b) If we repossess and resell any Product, we will credit the net proceeds from the sale (after costs of repossession and sale) against your debt for that Product. You will remain liable for any shortfall, and we will return any surplus to you (less any other amounts you owe us).
(c) These rights are in addition to any other rights we have under this Agreement or at law for non-payment.

10.9 Intellectual Property Rights: Unless otherwise specifically agreed in writing, Kinetics (and its licensors or suppliers) retain ownership of all intellectual property rights in any Products, Services, and Customised Software we provide. This includes (without limitation) all copyright, designs, patents, and know-how associated with our deliverables. You receive a non-exclusive, non-transferable license to use any software or intellectual property provided by Kinetics solely for the purposes for which it was supplied and paid for. You must not reverse engineer, copy, resell, or distribute our software or documentation except as permitted by us or by law.

10.10 IP Indemnity from Customer: You warrant that any materials or information you provide to Kinetics for use in the Services (for example, data, logos, or specifications) do not infringe the intellectual property or confidentiality rights of others. You agree to fully indemnify and hold Kinetics harmless from any claims, losses or expenses arising from a breach of this warranty. If a third-party claims that work we did for you infringes their IP due to information or software you supplied, you will cover us for any liability or reasonable costs we incur as a result.

10.11 Client’s Intellectual Property: As between you and Kinetics, you retain all intellectual property rights in your own materials and data that you supply to us or that are already owned by you. If Kinetics creates or develops any documentation or materials specifically for you as part of the Services (e.g. a customized IT policy or strategy document unique to your business), and this is distinct from our pre-existing templates or tools, then upon full payment we assign any intellectual property rights in that specific deliverable to you. However, Kinetics retains ownership of and may reuse any underlying know-how, templates, or generic methodologies that are not unique to your deliverable (we grant you a royalty-free, perpetual license to use these as part of the deliverable). This ensures you own what is uniquely yours, while we retain what is ours.

11.            Confidentiality and Data Security

11.1 Confidentiality Obligations: Each party acknowledges that in the course of the relationship, it may obtain access to the other party’s Confidential Information. Each party agrees to hold the other’s Confidential Information in strict confidence and not to disclose it to any third party except as required to perform this Agreement or as required by law. Confidential Information shall only be used for the purpose for which it was disclosed and not for any other purpose without the discloser’s consent. Both parties must take reasonable care to safeguard the confidentiality of the other’s information, at least to the same extent it protects its own sensitive information.

11.2 Exclusions: Information is not deemed confidential if it is already public (through no breach of this Agreement), was independently developed or obtained by the receiving party, or is rightfully obtained from a third party not under a duty of confidentiality. If either party is required by law or court order to disclose Confidential Information, it shall give notice (if legally permitted) to the other party and disclose only what is legally required.

11.3 Return of Information: Upon request by the disclosing party, and in any event upon termination of this Agreement, each party will promptly return or destroy (as directed) all materials in its possession or control that contain the other’s Confidential Information, including all copies, except as required to be retained by law or reasonable backups. Any retained information remains subject to the confidentiality obligations.

11.4 Data Security: Kinetics will adopt and maintain reasonable security measures, in accordance with good industry practice, to protect any of your Confidential Information or data that comes into our possession or control from unauthorized access, use, loss, or disclosure. We will actively monitor our systems for security incidents. If we become aware of a Security Incident (for example, a data breach or cyberattack) that compromises your data or systems, we will notify you within 24 hours or sooner if practicable. In the event of a Security Incident affecting your information, Kinetics will take prompt action to contain and remedy the issue, including, where applicable, assisting you in meeting any legal obligations to notify regulators or individuals.

11.5 Personnel: If Kinetics personnel (including contractors) have access to your premises or systems, Kinetics will ensure that such individuals are bound by confidentiality obligations and comply with any of your reasonable site rules and policies made known to us (such as health and safety, IT use policies, etc.). We will endeavor to minimize disruption to your business during on-site work. Kinetics remains responsible for its personnel and will pay all remuneration due to them; they will not be considered your employees.

12.            Privacy and Use of Personal Information

12.1 Collection of Information: You agree to provide us with all information that is reasonably required for us to establish your account and perform the Services, and you consent to Kinetics collecting such information. This may include business contact details, personal identification information for credit checks, and relevant technical information. We will handle all personal information in accordance with the New Zealand Privacy Act 2020 (which replaced the 1993 Act).

12.2 Use and Disclosure: You agree that, unless you withdraw consent in writing, Kinetics may use and disclose your information for the following purposes: (a) to carry out our obligations and provide the Products and Services to you (including sharing information with staff or contractors involved in delivery); (b) to enforce our rights under this Agreement or any other agreement with you (such as sharing information with a collections agency if you default); (c) as required by law or government authorities; (d) to assess your creditworthiness (including obtaining credit checks or trade references); and (e) to send you marketing communications about our products and services or promotional offers that we believe may be of interest to you. You can opt out of marketing emails by notifying us at any time.

12.3 Accuracy and Access: We will take reasonable steps to ensure that the personal information we hold is accurate, complete, and up-to-date for the purposes for which it is used. Under the Privacy Act, individuals have the right to request access to their personal information held by Kinetics and to request correction of any errors. Any access or correction request should be made in writing to Kinetics’ Privacy Officer. We may charge a reasonable fee to cover the cost of providing access (e.g., if large volumes of information are involved), and will advise you of any such charge in advance.

12.4 Storage and Security: We will store personal information securely and protect it against loss, unauthorized access or disclosure, and other misuse. If we provide personal data to third-party service providers (for example, a cloud storage provider or subcontractor), we will do so only for the purposes listed above and will take reasonable steps to ensure those providers safeguard the information at a standard comparable to our own.

12.5 Credit Information: If you are an individual (sole trader, partnership, or personal guarantor), you authorize Kinetics to make credit inquiries and to collect and disclose information about your credit history or status to or from credit reporting agencies or credit providers for the purpose of assessing applications for credit and collecting overdue payments. This may include information such as credit references, credit scores, or judgments.

12.6 Personnel Information: If you provide Kinetics with personal information about your personnel or representatives (e.g., their contact details for coordination purposes), you confirm that you have obtained any necessary consents from those individuals for us to receive and use their information in connection with this Agreement.

13.            Termination and Suspension

13.1 Termination by Notice: Either party may terminate this Agreement (and any ongoing Service Agreements) at any time by giving the other at least 30 days’ written notice. Upon the expiry of that notice period, the Agreement will end, except that any accrued rights and obligations (for example, outstanding payments or ongoing confidentiality duties) will remain. If you terminate for convenience under this clause and have pre-paid for services beyond the termination date, we will refund the unused portion. If Kinetics terminates for convenience, we will complete any Services paid for up to the termination date or refund any unearned fees.

13.2 Termination or Suspension for Cause: Kinetics may immediately suspend Services or terminate this Agreement (in whole or in part) by giving you 7 days’ written notice (or shorter notice if permitted below) if you are in default or breach of this Agreement. Events of default or material breach include:

• Non-Payment: Failing to pay any sum by the due date, or indicating an unwillingness or inability to pay. (Kinetics may suspend services immediately if you have not paid by the due date without needing to wait 7 days.)
• Insolvency: You become insolvent or bankrupt, go into liquidation or receivership, are placed under statutory management, make an assignment for benefit of creditors, or any analogous event.
• Seizure or Damage: Any creditor of yours seizes or threatens to seize any Products supplied by Kinetics (for example, under a lien or security), or any supplied Product in your possession is materially damaged or destroyed before payment is made.
• Judgments or Enforcement: A court judgment against you is not satisfied within 7 days or enforcement action is taken against your assets.
• Breach of Terms: You commit a breach of any of these terms and (if it is capable of remedy) fail to remedy it within 7 days of receiving notice of the breach.
• Adverse Change: There is an adverse material change in your financial position or creditworthiness, which in Kinetics’ reasonable opinion jeopardizes your ability to fulfill your obligations.

If such an event occurs, Kinetics’ notice may state an intention to suspend or terminate, and if you do not cure the default within the notice period (if cure is possible), we may terminate the Agreement upon expiry of the notice. In the case of non-payment by the due date, we reserve the right to suspend services immediately until payment is received, or terminate if payment is not made promptly.

13.3 Your Right to Terminate for Breach: If Kinetics materially breaches this Agreement and fails to remedy the breach within a reasonable period after receiving written notice from you specifying the breach and requiring its remedy, you may terminate the Agreement. This is in addition to any specific rights of termination you have under a Service Agreement or at law.

13.4 Consequences of Termination: On termination or cancellation of the Agreement for any reason:
(a) Payment: All charges for Products and Services delivered up to the date of termination become immediately due and payable. This includes work in progress and any non-cancellable commitments we have entered into on your behalf. We will issue a final invoice which is payable on receipt. If termination occurs part way through a billing period for ongoing services, we may bill pro-rata for the portion of service up to termination.
(b) Ceasing Services: Kinetics will stop performing Services and may cancel any of your pending orders (at our discretion). We will have no further obligation to deliver Products or Services to you after the termination date, except for cooperation during transition as noted in (d) below.
(c) Return of Property: Each party will promptly return or, if instructed, destroy the other party’s Confidential Information and any property (equipment, documentation, keys, etc.) belonging to the other that is in its possession. For example, you must return any loaned equipment or Kinetics must return your access cards. Each party will certify compliance with this subsection upon request.
(d) Transition Assistance: If requested by you and applicable to the nature of Services, Kinetics will provide reasonable assistance to hand over or transition the Services to you or another provider. For example, we can provide final data backups, transfer third-party licenses, or brief a new IT team. Unless the termination was due to our breach, we may charge for this assistance at our standard rates. We will endeavour to make any transition smooth and timely.
(e) Survival: Any clauses which by their nature are intended to survive termination (such as indemnities, liability limitations, confidentiality, security interests, and accrued payment obligations) will continue in effect. Termination does not relieve either party from liability for prior breaches.

13.5 Rights Not Affected: Termination or suspension is without prejudice to any other rights or remedies either party may have under this Agreement or at law. For example, if you defaulted, we may still pursue recovery of unpaid amounts and damages. If we terminated for convenience, you may still pursue any claim you have for our prior breach (if any). All rights and obligations up to the date of termination remain enforceable.

13.6 Lien: In addition to any security interest under clause 10, if you have any outstanding payment default, Kinetics shall have a lien on any of your property or equipment in our possession (for example, equipment undergoing repair) until you pay all outstanding amounts. We may refuse to return or release such items until the default is remedied. If the debt remains unpaid, we may follow legal procedures to dispose of the items to recover the debt, after giving you notice.

14.            Personal Guarantee (Directors/Trustees)

14.1 Guarantee by Signatory: In consideration of Kinetics agreeing to supply Products and Services and/or extend credit to the Customer, the undersigned director(s) or trustee(s) (if any, as indicated in the account application) jointly and severally guarantee as principal debtors the due and punctual payment to Kinetics of all amounts payable by the Customer, and the performance of all the Customer’s obligations, under this Agreement. This is a continuing guarantee and indemnity, which means if the Customer (company or trust) fails to pay any amount or breaches any obligation, Kinetics can require the guarantor to pay or perform instead, and the guarantor will indemnify Kinetics against all losses from the Customer’s default.

14.2 Extent of Guarantee: The liability of a guarantor is not reduced or affected by: (a) Kinetics granting any time, credit, indulgence or compromise to the Customer; (b) any alteration to the terms of this Agreement, any Service Agreement, or the nature or extent of the Products/Services supplied (the guarantor agrees that this guarantee extends to the Agreement as amended over time); (c) any insolvency, receivership or liquidation of the Customer; or (d) the guarantor not being notified of any default by the Customer. Each guarantor waives any right to be released from this guarantee until all obligations of the Customer are fully satisfied.

14.3 Guarantor Acknowledgement: By signing the account application, the guarantor(s) acknowledge that they have read this guarantee clause and understood its implications. This means you may have to pay Kinetics personally if the Customer does not pay. It is recommended that you seek independent legal advice if you are unsure about giving a personal guarantee.

14.4 Multiple Guarantors: If more than one person is named as guarantor, their liability is joint and several (Kinetics can pursue any or all of them for the full amount). The guarantee binds the signatory’s executors, administrators, and successors.

15.            General Provisions

15.1 Subcontracting: Kinetics may engage agents or subcontractors to perform Services (or any part of them) on our behalf. For example, we might outsource certain specialized support tasks. We will remain responsible for the actions of any subcontractor we engage and will ensure any subcontractor is bound by confidentiality and privacy obligations consistent with this Agreement. You agree to pay for Services delivered by our approved subcontractors as if we had provided them directly.

15.2 No Waiver: If either party fails to enforce any term of this Agreement or delays in exercising a right, that does not waive its rights to do so later. Any waiver of rights must be in writing to be effective. A written waiver of a breach applies only to that specific breach, not to any later, even similar, breach.

15.3 No Assignment: Neither party may assign or transfer this Agreement or any rights/obligations under it to any other person without the other party’s prior written consent, which shall not be unreasonably withheld. However, Kinetics may assign or transfer this Agreement to a successor entity in the event of a merger, acquisition or restructuring, by providing notice to you.

15.4 Severability: If any term of this Agreement is determined by a court of competent jurisdiction to be illegal, invalid, or unenforceable, that term will be severed from this Agreement. The remaining terms will remain in full force and effect, and the parties shall negotiate in good faith to replace any invalid term with a valid provision that closely approximates the intent of the original.

15.5 Entire Agreement: This Agreement (together with any Service Agreements and application forms expressly incorporated) constitutes the entire agreement between you and Kinetics for the supply of Products and Services and supersedes all prior discussions, communications, understandings or agreements (whether written or oral) relating to its subject matter. Neither party has relied on any representation or promise that is not expressly stated in this Agreement. Any purchase order or terms you submit that are inconsistent with this Agreement will not apply unless we expressly agree in writing.

15.6 Dispute Resolution: If any dispute arises under this Agreement, the parties will first attempt to resolve it by prompt good faith negotiations at a senior management level. If a dispute is not resolved within 7 days of one party notifying the other of the issue in writing, either party may then refer the dispute to mediation or arbitration by giving written notice. If arbitration is chosen, it shall be conducted in New Zealand under the Arbitration Act 1996 (NZ) by a single arbitrator. Each party will bear its own costs of mediation/arbitration, and the parties will share the mediator’s or arbitrator’s fees equally, unless directed otherwise by the arbitrator. Nothing in this clause prevents either party from seeking urgent interlocutory relief (e.g., an injunction) from a court or from filing a claim to recover undisputed debts.

15.7 Notices: Any notice or communication required under this Agreement shall be in writing and may be delivered by hand, courier, post, or email. Notices to you will be sent to the contact details you provided in your account application (or as updated by notice to us). Notices to Kinetics should be sent to our registered office or an official email address we provide for communications. Notices sent by email are deemed received at the time of successful transmission, provided the sender does not receive an error or bounce-back, and if sent outside business hours, on the next business day. Either party may update its contact details by giving notice to the other. Formal service of any legal documents may be done by email as permitted by New Zealand court.

15.8 Non-Solicitation: You agree that during the term of this Agreement, and for a period of 12 months after termination, you will not directly or indirectly solicit for employment or contract any person who is or was an employee or key contractor of Kinetics and who was involved in providing Services to you. If you wish to hire a Kinetics employee, you may do so only with Kinetics’ prior written consent. This restriction is not intended to prevent general job advertisements or hiring someone who responds to such an advertisement without solicitation.

15.9 Variation of Terms: Kinetics may from time to time amend or update these terms and conditions. We will notify you of any proposed change by providing you with the updated terms or highlighting the changes (for example, via email or on our website). Except for changes required by law, any amendment will not take effect until you have agreed to it in writing or by continuing to use our Services after a reasonable notice period (at least 30 days). If you do not accept a proposed change, you may terminate the Agreement by notice within that notice period. Continued use of our Products or Services after the effective date of an amendment will constitute your acceptance of the amended terms. All other modifications or additions to this Agreement must be in writing and signed by both parties.

15.10 Governing Law: This Agreement is governed by the laws of New Zealand. The parties submit to the non-exclusive jurisdiction of the New Zealand courts for any dispute arising out of or in connection with this Agreement.

15.11 Execution: You may accept or sign these terms electronically or via our online portal, and such electronic acceptance or signature will be deemed as effective as an original signature. If you are viewing these terms on our website or printed on our account application form, your signature on the account application or your electronic acceptance will bind you to these terms as if you had signed each page.

 

Payment & Credit Terms Invoices are due by the 20th of the following month. Overdue amounts incur 1.5% interest per month and potential 10% late fees, with collection costs payable by you.	Retention of Title & Security All supplied products remain Kinetics’ property until paid in full. Kinetics may register a PPSR security interest and reclaim unpaid goods from your premises if you default.
Limited Liability Kinetics is not liable for any indirect or consequential losses. Any liability for direct damages is capped at the value of the services or products provided under the contract.	Termination on Default Either party may terminate with notice. Kinetics can suspend or cancel services if you miss payments or breach these terms and may enter your premises to recover its goods after due notice.

By signing the Account Application, you acknowledge that you have read and agree to these Terms and Conditions.