Terms & Conditions

1. Definitions

• Client (or Principal): The person, company, trust, organisation, or entity commissioning the Work.
• Contractor: Kiwi Excavations Limited.
• Contract Documents: Any quotation, estimate, proposal, scope of works, work order, variation, pricing schedule, charge-up authority, email pricing, text message pricing, electronic acceptance request, invoice, or other document issued by Kiwi Excavations Limited relating to the Work.
• Work: The services, labour, materials, plant, equipment, goods, and associated works supplied by the Contractor.
• Site: The location where the Work is to be carried out.
• Completion: The point at which the Contractor has substantially completed the contracted scope of Work and demobilised from the Site, excluding minor defects, remedial items, or outstanding matters that do not materially affect the use or function of the Work.
• HSWA: The Health and Safety at Work Act 2015 and associated regulations.

2. Contract Formation & Validity

• Contracts are valid for 14 days from the date of issue unless otherwise agreed in writing.
• Prices are exclusive of GST unless otherwise specified.
• Acceptance may be made by written confirmation, email, text message, payment of any required deposit, electronic acceptance, commencement of Work at the Client’s request, or clicking “Accept” in an online system.
• Acceptance of any Contract Documents, instruction to proceed, request for scheduling, payment of any deposit, commencement of Work, or acceptance communicated by email, text message, phone call, electronic system, or any other method shall constitute acceptance of these Terms and Conditions.
• The Client acknowledges that these Terms and Conditions may be supplied with Contract Documents, invoices, email correspondence, electronic acceptance systems, or made available on the Kiwi Excavations Limited website.
• The Client agrees that acceptance of any Contract Documents or instruction to proceed constitutes acceptance of these Terms and Conditions whether or not the Client has physically signed a separate copy.
• Upon acceptance, these Terms and Conditions form part of the Contract.
• Where there is any inconsistency between these Terms and Conditions and a Contract Document, the Contract Document shall prevail only to the extent of that specific inconsistency.

3. Price & Payment Terms

• A deposit of 60% of the Contract Price is payable upon acceptance of the applicable Contract Documents and before commencement of Work unless otherwise agreed in writing.
• The remaining balance is payable within 7 days of Completion.
• For contracts exceeding $20,000.00 plus GST in value, or where the Work is expected to extend beyond 14 calendar days, Kiwi Excavations Limited may issue progress claims at reasonable intervals for Work completed, materials supplied, plant utilised, subcontractor costs incurred, and other amounts owing under the Contract.
• Progress claims are payable within 7 days of invoice unless otherwise agreed in writing.
• Payment shall be made to the nominated bank account referencing the Site address, invoice number, or contract number.
• Overdue accounts may incur interest at 10% per annum calculated daily and may result in suspension of Work until payment is received.
• The Contractor may recover all reasonable debt collection, legal, and enforcement costs incurred in recovering overdue amounts.
• Materials supplied remain the property of Kiwi Excavations Limited until full payment has been received.
• Variations and additional work shall be charged separately and are payable in accordance with these Terms.

4. Scope of Work & Charge-Up Basis

• The scope outlined is based on information available at the time of quotation and assumes reasonable site access and conditions.
• Pricing, methodology, timeframes, and quantities may be adjusted if site conditions, access requirements, service locations, environmental requirements, disposal requirements, or other circumstances differ from those reasonably anticipated.
• Where quantities, conditions, access, disposal requirements, underground services, environmental requirements, or other site factors cannot reasonably be determined in advance, Work may proceed on a charge-up basis at the Contractor’s current rates.
• Current charge-up rates include but are not limited to:
  • Labour: $60.00 + GST per hour
  • Builder / Skilled Labour: $80.00 + GST per hour
  • Tip Truck: $100.00 + GST per hour
  • 1.7 Tonne Excavator: $100.00 + GST per hour
  • 8 Tonne Excavator: $120.00 + GST per hour
• Additional plant, machinery, attachments, specialised equipment, subcontractors, traffic management, hydrovac services, environmental controls, disposal costs, consultants, surveyors, engineers and other resources may be charged at rates advised by Kiwi Excavations Limited from time to time.
• Kiwi Excavations Limited reserves the right to update charge-up rates from time to time and will advise applicable rates upon request or before undertaking additional charge-up work where reasonably practicable.
• All pricing and travel allowances are based on travel to and from Stoke.
• Trucking travel time is charged at $100.00 + GST per hour from departure from Stoke until return to Stoke.
• Additional workers travelling in the same vehicle are charged at $60.00 + GST per hour per worker for travel time.

5. Site Access, Boundaries & Client Responsibilities

The Client shall:

• Provide safe and unobstructed access to the Site.
• Clearly identify and confirm all property boundaries before Work begins.
• Identify and mark all underground services before commencement.
• Obtain all permits, consents, approvals, surveys, Traffic Management Plans, engineering approvals and resource consents unless specifically included within the Contractor’s scope.
• Ensure the Site is free from hazards, obstructions and unsafe conditions.
• Provide water and power where required or pay additional charges where supplied by the Contractor.
• Disclose any known contamination, environmental risks, underground services, geotechnical concerns or consent conditions affecting the Site.

6. Underground Services

• Kiwi Excavations Limited will take reasonable care to avoid damage to underground services using information provided.
• The accuracy of service location information cannot be guaranteed.
• The Contractor shall not be liable for damage to services that are unmarked, incorrectly marked, inaccurately located or undisclosed by the Client or service owners.
• Any relocation, repair, replacement or protection of services required to complete the Work, and not caused by Contractor negligence, shall be charged to the Client.

7. Ground & Excavation Conditions

• Pricing assumes normal excavation conditions involving soft and reasonably excavatable material.
• Rock excavation, hard digging, dense vegetation, buried structures, contaminated material, groundwater, hidden services, unstable ground, unsuitable fill or unforeseen conditions may incur additional costs.
• No allowance for weed control is included unless specifically stated.
• No allowance for imported fill, basecourse, aggregate, geotextile, stabilisation, dewatering, shoring, engineering or specialist ground improvement works is included unless specifically stated.

8. Materials

• Materials supplied will be invoiced at cost plus up to 30% margin unless otherwise agreed.
• Material availability and supplier pricing may change without notice.
• Colours displayed on screens or printed material may differ from actual products.
• The Client shall verify colours and specifications prior to ordering.
• Kiwi Excavations Limited accepts no responsibility for colour or specification disputes after materials have been ordered at the Client’s request.
• Materials and products purchased from third-party suppliers or manufacturers are subject to the applicable supplier or manufacturer warranties. Kiwi Excavations Limited will take reasonable care in the selection and installation of materials but cannot guarantee the inherent characteristics, manufacturing quality or long-term performance of third-party products beyond applicable warranties and legal obligations. Natural characteristics and movement of materials, including timber shrinkage, checking, cracking, twisting, warping and colour variation, shall not of themselves constitute defective workmanship or materials where they are reasonably consistent with the nature and intended use of the product.

9. Variations & Additional Work

• A variation includes any addition, omission, alteration or change to the agreed scope, methodology, quantities or Work, whether requested before commencement or while Work is underway.
• Variations may be instructed or agreed by the Client in writing, verbally, or by conduct, including where the Client requests or authorises additional or changed Work on Site and Kiwi Excavations Limited proceeds with that Work.
• Where reasonably practicable, variations will be recorded or confirmed by email, text message, variation form, timesheet, site record, invoice or other written communication. Failure to record or confirm a variation in writing shall not invalidate a variation that was otherwise requested, authorised or agreed by the Client.
• Instructions given by the Client or the Client’s authorised representative to Kiwi Excavations Limited personnel on Site may be treated as an instruction to vary the Work.
• Unless a fixed variation price is agreed beforehand, additional or changed Work shall be charged on a reasonable charge-up basis at the Contractor’s applicable rates, including labour, plant, materials, subcontractors, disposal, travel and other costs reasonably incurred.
• Variations may affect the Contract Price, programme and completion time.
• Variation costs shall be payable in addition to the Contract Price in accordance with these Terms.

10. Waste Disposal, Concrete Works & Utilities

• Waste materials removed from Site shall be charged unless specifically included within the Contract Price.
• A suitable wash-down area shall be provided where required.
• Additional charges may apply where water, power, disposal facilities or environmental controls are not available on Site.

11. Delays & Force Majeure

• Kiwi Excavations Limited shall not be liable for delays caused by weather, unforeseen Site conditions, service strikes, material shortages, subcontractor delays, council requirements, consent delays, natural disasters or any event beyond its reasonable control.
• Completion dates are estimates only unless expressly agreed otherwise in writing.

12. Warranty

• Workmanship is warranted for 12 months from Completion.
• This warranty excludes misuse, neglect, unauthorised alterations, lack of maintenance, third-party damage, ground movement, subsidence, erosion, flooding, storm damage, earthquakes, landslips, Acts of God or any event beyond the Contractor’s reasonable control.
• Warranty applies to workmanship only. Supplied materials and products are subject to the applicable manufacturer or supplier warranties, together with any rights or remedies that cannot lawfully be excluded.

13. Liability & Indemnity

• The Contractor’s total liability shall be limited to the Contract Price actually paid by the Client.
• To the maximum extent permitted by New Zealand law, Kiwi Excavations Limited shall not be liable for any indirect, consequential, economic, special, punitive or exemplary loss whatsoever, including loss of profit, revenue, opportunity, production, business interruption, delay costs, financing costs or loss of use.
• The Client indemnifies Kiwi Excavations Limited against claims arising from inaccurate information supplied by the Client or breaches of these Terms.

14. Health & Safety

• Both parties shall comply with the Health and Safety at Work Act 2015 and all associated regulations.
• The Client shall cooperate with the Contractor regarding Site safety requirements.
• Any safety concerns shall be reported immediately.

15. Environmental Compliance

• Kiwi Excavations Limited shall comply with applicable environmental legislation and industry best practice.
• The Client acknowledges that additional environmental controls may be required and may incur additional costs.

16. Insurance

• Kiwi Excavations Limited maintains public liability insurance and other insurances required by law.
• Copies of insurance certificates may be provided upon reasonable request.

17. Subcontracting

• The Contractor may engage subcontractors to perform portions of the Work.
• Kiwi Excavations Limited remains responsible for completion of the contracted Work.

18. Termination

• Either party may terminate the Contract by providing 14 days written notice.
• The Client shall pay for all Work completed, materials supplied, plant utilised, subcontractor costs incurred and reasonable costs resulting from termination.
• Kiwi Excavations Limited may immediately suspend or terminate the Contract without notice if the Client becomes insolvent, enters liquidation, receivership, bankruptcy, administration, creditor arrangements, ceases trading or is otherwise unable to pay debts as they fall due.
• All amounts owing shall become immediately due and payable upon termination.

19. Dispute Resolution

• The parties shall first attempt to resolve disputes through negotiation.
• If unresolved, disputes shall be referred to mediation.
• If mediation fails, disputes may be referred to arbitration under the Arbitration Act 1996.

20. Confidentiality

Both parties shall keep confidential any non-public information obtained during the Contract unless disclosure is required by law.

21. Intellectual Property

All plans, designs, specifications, methodologies, pricing structures and documents created by Kiwi Excavations Limited remain its intellectual property unless otherwise agreed in writing.

22. Consumer Guarantees Act

• Nothing in these Terms limits rights available under the Consumer Guarantees Act 1993 where that Act applies.
• Where the Client acquires goods or services for business purposes, the parties agree that the Consumer Guarantees Act shall not apply to the extent permitted by law.

23. Ownership of Goods

Ownership of supplied goods remains with Kiwi Excavations Limited until all monies owing have been paid in full.

24. Governing Law

This Agreement is governed by the laws of New Zealand.

25. Fuel Price Adjustment

• Pricing provided by Kiwi Excavations Limited is based on a baseline diesel price of $1.70 per litre including GST (approximately $1.48 per litre excluding GST).
• If diesel prices increase above this baseline, Kiwi Excavations Limited reserves the right to apply a fuel adjustment surcharge.
• The surcharge may apply to plant hire, machine hours, trucking, transport and travel time charges.
• Any fuel adjustment surcharge applied under this clause will be clearly identified on quotations, estimates, scope of works documents, work orders, variations, progress claims or invoices.
• The following table is provided as a guideline for calculating fuel adjustments. Kiwi Excavations Limited may update the table from time to time to reflect changes in operating costs and fuel consumption.

Fuel Adjustment Guideline (Indicative Only)

Diesel Price	Tip Truck	8T Excavator	1.7T Excavator
$3.00	$20.00/hr	$13.00/hr	$7.00/hr
$3.10	$21.50/hr	$14.00/hr	$7.50/hr
$3.20	$23.00/hr	$15.00/hr	$8.00/hr
$3.30	$24.50/hr	$16.00/hr	$8.50/hr
$3.40	$26.00/hr	$17.00/hr	$9.00/hr
$3.50	$27.50/hr	$18.00/hr	$9.50/hr
$3.60	$29.00/hr	$19.00/hr	$10.00/hr
$3.70	$30.50/hr	$20.00/hr	$10.50/hr
$3.80	$32.00/hr	$21.00/hr	$11.00/hr
$3.90	$33.50/hr	$22.00/hr	$11.50/hr
$4.00	$35.00/hr	$23.00/hr	$12.00/hr
$4.10	$36.50/hr	$24.00/hr	$12.50/hr
$4.20	$38.00/hr	$25.00/hr	$13.00/hr
$4.30	$39.50/hr	$26.00/hr	$13.50/hr
$4.40	$41.00/hr	$27.00/hr	$14.00/hr
$4.50	$42.50/hr	$28.00/hr	$14.50/hr
$4.60	$44.00/hr	$29.00/hr	$15.00/hr
$4.70	$45.50/hr	$30.00/hr	$15.50/hr
$4.80	$47.00/hr	$31.00/hr	$16.00/hr
$4.90	$48.50/hr	$32.00/hr	$16.50/hr
$5.00	$50.00/hr	$33.00/hr	$17.00/hr

26. Materials Price Adjustment

• All quotations, estimates, scopes of work and pricing are based on supplier pricing available at the date of issue.
• Kiwi Excavations Limited reserves the right to adjust and on-charge increases in material, freight, disposal, supply or associated costs imposed by suppliers after the date of issue of any Contract Documents.
• Such increases may be charged as a variation or adjustment to the Contract Price.
• Reasonable efforts will be made to notify the Client of significant increases; however, failure to notify prior to supply shall not limit the Client’s obligation to pay the adjusted amount.
• This clause applies to, but is not limited to, increases in the cost of aggregates, timber, concrete, steel, freight, disposal fees, environmental compliance costs and third-party supplied materials or services.

27. Environmental Compliance & Hydrovac Services

• Kiwi Excavations Limited may implement erosion control, sediment control, slurry management, concrete washout, dewatering, environmental protection measures and other compliance requirements required by legislation, council conditions, industry best practice or Site conditions.
• The Contractor may engage hydrovac operators, vacuum tankers, liquid waste contractors, environmental consultants, laboratories or specialist subcontractors where required.
• Unless specifically included within the quoted scope, all associated costs shall be chargeable to the Client as a variation.
• Kiwi Excavations Limited shall not be liable for delays, additional costs or compliance obligations arising from unforeseen Site conditions, contamination, disposal restrictions, hidden services, weather events, council directives or subcontractor availability.
• The Client must disclose any known contamination, underground services, environmental risks, geotechnical issues, consent conditions or Site constraints that may affect the Work prior to commencement.