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Conditions of Use

Last updated: 13 October 2010

Terms Used

‘The seller’ refers to Mighty Ape Ltd.

‘The buyer’ refers to any legal entity purchasing from the seller.

General

These Conditions of Use shall prevail over any terms contained in any order or offer made by the buyer or any document used by the buyer (which shall have no effect).

Ordering

The seller's website, the information on it and any information in emails constitute an invitation to treat and not an offer to supply products. When the buyer orders products from the seller, this constitutes an offer from the buyer to buy those products in accordance with these Conditions of Use. The sellers acceptance of the buyers order occurs (and the contract is formed) when the goods are dispatched to the buyer.

Order Process

The buyer may order products from the seller by completing and submitting the checkout process on the seller's website. The buyer must provide all required information (including name, email address, and payment details) or the seller may not be able to process the buyers order.

The sellers discretion in rejecting orders

No order shall be deemed accepted by the seller until the seller has sent the buyers order. The seller reserves the exclusive right to accept or reject (for any reason whatsoever and in whole or in part) any order submitted by the buyer. If the seller rejects the buyers order (or part of the order), any money paid by the buyer in relation to the rejected part of that order shall be refunded and the seller shall have no further liability to the buyer in relation to the rejected part of that order.

Consumer Guarantees Act 1993

In the event the transaction the subject of these conditions of sale is subject to the Consumer Guarantees Act 1993 (“the Act”) then:
If the buyer is acquiring products from the seller for the purposes of a business, then the guarantees and remedies provided under the Act shall not apply to the supply of those products.
In the event the purchaser is acquiring the product for purposes other than that of a business, then these conditions of sale shall be interpreted subject to the purchaser's rights under the Act, to the intent that no provisions shall any way limit the purchaser's rights under the Act.

Prices

Except where specifically stated in relation to a particular product, the prices for the products are stated and are payable in New Zealand dollars (NZD). Any currency conversion will take place online at the rate applicable at the time of purchase.

Taxes and other charges

All prices and delivery charges within New Zealand are inclusive of New Zealand Goods and Services Tax at the rate of 15%.

Gift Vouchers

Gift vouchers will not be exchanged and are not subject to returns for credit or refunds.
Gift vouchers can not be used to buy more gift vouchers.
The seller will not replace a gift card that is lost or stolen after being received.

Overseas orders

Except for New Zealand Goods and Services Tax, prices do not include import fees, duties, tariffs, taxes or other imposts or charges which may be payable in relation to buyers order. The buyer shall be liable to pay any import fees, duties, taxes, and other imposts or charges which are payable in relation to buyers order.

Where the buyer and the seller agree to a variation in the quantity of the goods, the goods shall be priced either at the rate applicable to the original quantity or the revised quantity at the absolute discretion of the seller.

The seller may vary any prices on the seller's website at any time and without notice to the buyer.

Availability and Cancellation

All orders are subject to the availability of products. If for any reason a product is not available, the seller will endeavour to notify the non-availability on this website. The seller may revise the range of products or the specification of any product at any time and without notice to the buyer.

Cancellation of orders

Where products are listed on the seller's website with an incorrect price or with incorrect information, the seller reserves the right to cancel the buyers order (regardless of whether the buyer has made payment for that order). Where the buyer has already made payment for an order that is subsequently cancelled by the seller, the seller will refund the amount paid by the buyer in relation to that order.

The seller may cancel the buyer's order any time prior to our order confirmation. Any variation, waiver or cancellation of the buyer's order shall have no effect unless accepted in writing by the seller. Where the seller accepts cancellation the seller may levy a handling charge of up to 15% of the price.

Delivery

Once the seller has confirmed acceptance of the buyer's order, the seller will endeavour to dispatch the buyer's order within 3 business days unless a different time frame is specified in relation to a particular product. If the seller is unable to dispatch the buyer's order within the time frame specified the seller will endeavour to contact the buyer and advise the buyer of the expected dispatch date.

The seller reserves the right to dispatch the buyer's order in one delivery or by installments. Failure to deliver any installment shall not entitle the buyer to repudiate the contract as to any installments already delivered. The buyer may cancel any undelivered installments up until the installment is confirmed.

Any quotations of delivery times by the seller are made in good faith but are estimates and the seller shall not be bound by such quotation and the seller will not be liable for any loss, expense, or other damage caused by any delay in delivery.

The buyer may specify delivery instructions for an order (for example, the buyer may authorise the delivery agent to leave the products in a specified location if the buyer will not be at the delivery address). The seller will not be responsible for any order that is delivered in accordance with the buyers delivery instructions.

New Zealand law requires all international packages to have attached customs documentation, which describes the goods being sent and their cost.

Shortages, Damages or Loss in Transit

Liability for shortages in the quantity of goods delivered is limited to making up the shortages. Where the buyer believes that there is a shortage in the quantity of products delivered, the buyer must notify the seller of any such claim within 7 days of delivery and must provide the seller with a reasonable opportunity to investigate that claim.

All orders delivered within New Zealand are insured against damage or loss during transit up to the value of NZ$1500. All orders delivered using the New Zealand Post International Air service are insured against loss or damage up to the value of NZ$250, and the buyer can optionally purchase additional insurance cover up to the value of NZ$1500. The seller will not accept any liability for loss or damage in transit that exceeds the value of the loss or damage insurance applying to that delivery.

Goods leaving the seller's premises are adequately packed. Claims for damage or loss in transit must be made against the carrier in the prescribed manner:

  • Prior to acknowledging delivery to the carrier the buyer must ensure that the complete consignment as per the carrier's note has been received.
  • Should there be a shortage or visible damage to outer packaging the carrier's note must be endorsed accordingly.
  • Within 7 days of receipt of consignment the buyer must ensure that all goods received are in good order and condition.

No damage claims will be considered after 7 days of receipt of goods. While no liability for goods damaged or lost in transit will be accepted by the seller details of any claim should be advised to the seller.

Return of Goods for Credit or Refund

Goods supplied in accordance with the buyer's order can only be returned with the express approval of the seller.

Please refer to the Returns Policy to see what is covered.

Liability and Maintenance Guarantee

To the maximum extent permitted by law, the seller disclaims all warranties, representations, and guarantees (whether, express, implied, or statutory), with respect to any product or any information supplied to the buyer by the seller including, but not limited to, warranties of availability, accuracy, non-infringement, completeness, timeliness, currency, merchantability, or fitness for a particular purpose.

To the maximum extent permitted by law, the sellers liability to the buyer (whether in contract, tort, or otherwise) for any loss, damage, or injury arising from any defect in, or non-compliance of, a product supplied to the buyer by the seller shall be limited to the price paid by the buyer for that product.

To the maximum extent permitted by law, the seller will not be liable (whether in contract, tort, or otherwise) for any loss of profits, or any indirect, incidental, consequential, or economic loss or damage (howsoever caused), which you may directly or indirectly suffer in connection with the buyers access to, use of, or reliance upon, any product or any information supplied to the buyer by the seller.

In lieu of any warranty, condition, or liability by law, the seller's liability in respect of any defect in or failure of the goods supplied, or for any loss, injury, or damage attributable thereto, is limited to making good the replacement or repair of defects arising under normal proper use and maintenance arising solely from faulty design, materials, or workmanship within the guarantee period, if stated, or otherwise within 6 months of the date of supply, provided always that such defective parts are promptly returned to the seller, unless otherwise arranged. All software is excluded from any such warranties.

At the termination of the appropriate period (ie guarantee period) all liability on the seller's part ceases.

The warranty does not cover damage from misuse, accident, negligent, inappropriate or improper operation, maintenance, installation, modification or adjustment.

The seller's liability under this contract and the warranty in this clause is confined to the buyer named in this contract, it being agreed that the seller has no liability to any purchaser of the goods from the buyer in that the buyer's rights under the contract are not assignable without the prior written consent of the seller.

Errors or Ommissions

The seller is entitled at any time to correct all errors and omissions (whether clerical, computational or otherwise) in any advertising, quotation, invoice or acknowledgement. Due to the seller's admi­nistrative processes, errors (if any) may be discovered up to 30 days after the goods have been delivered to the buyer. The seller will notify they buyer promptly of any error or omission discovered by the seller, and give the buyer the option of returning the goods for a full refund.

Ownership and Risk

Ownership of all goods sold by the seller (“the goods”) is retained by the seller until until the seller has received the full price for the products and the applicable delivery charges. This provision is designed to protect the seller in the event of the bankruptcy, receivership or liquidation of the buyer, a seizure of goods by a creditor of the buyer or default in payment.

Until full payment is made the buyer agrees to:

  • Enable the goods to be readily identifiable as the property of the seller.
  • Maintain the goods so supplied in good order and condition and to return the goods immediately if called upon to do so by the seller.
  • On a sale or other realisation of the goods the buyer shall identify and separately account for the proceeds of sale.

Personal Property Securities Act 1999

Until full payment has been received for the buyers order, the buyer acknowledges and agrees that:

  • these Conditions of Use constitute a security agreement for the purposes of section 36 of the Personal Property Securities Act 1999; and
  • a security interest is taken in all products previously supplied by the seller to the buyer (if any) and all goods that will be supplied in the future by the seller to the buyer(if any).

The seller undertakes to:

  • sign any further documents and provide any further information which the buyer may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
  • indemnify the seller for all expenses incurred in registering a financing statement or financing change request on the Personal Property Securities Register or releasing any item charged thereby;
  • not register a financing change statement or a change demand on the Personal Property Securities Register without our prior written consent;
  • give the seller not less than 14 days' prior written notice of any proposed change in the buyer's name or any of the buyer's contact details.

Unless otherwise agreed to in writing by the seller, the buyer waives their right to receive a verification statement in accordance with section 148 of the Personal Property Securities Act 1999.

Risk

Once the buyers order has been delivered to the buyer (or has otherwise been delivered in accordance with the buyer's delivery instructions), the buyer assumes full responsibility for and risk in the products.

Description of Products

Modifications and improvements to the seller's products, prices and data are constantly being made.

Although the seller has endeavoured to ensure that the product and pricing information provided on its website is accurate, complete, and current, the seller does not provide any representations or warranties as to its accuracy, completeness or currency of information, and the seller shall not be responsible or liable for any inaccurate, incomplete, or out-of-date information on this website.

The seller also relies on information from its suppliers and product manufacturers and therefore the descriptions, illustrations and literature are not binding on the seller.

If the goods do not match the description on the seller's website, the buyer should inform the seller immediately so that the seller may take the appropriate action.

Force Majeure

The seller shall not be liable to the buyer for any loss or damage, directly or indirectly arising out of or in connection with any delay in delivery of the goods, or failure to perform any term of this contract where such delay or failure is is outside the seller's reasonable control.

Compliance

The buyer shall be solely responsible for obtaining any necessary permits under (and for compliance with) all legislation, regulations, by-laws and rules that apply to the use of any products you purchase from the seller.

Changes to these Conditions of Use

The seller reserves the right to change these Conditions of Use from time to time by publishing the changed terms on the seller's website. When revised Conditions of Use are published on this website, all orders submitted by the buyer after the revised Conditions of Use are published shall be subject to the revised Conditions of Use.

Severability

If any provision of these Conditions of Use is held to be invalid or unenforceable for any reason, the remaining provisions shall, to the maximum extent possible, remain in full force and effect.

Disputes and Governing Law

Any claim or dispute arising hereunder shall be subject to arbitration in accordance with the Arbitration Act 1996.

These Conditions of Use (and any contracts to which these Conditions of Use apply) shall be governed by the laws of New Zealand and the courts of New Zealand shall have non-exclusive jurisdiction to hear and determine any dispute arising in relation to these Conditions of Use (and any contracts to which these Conditions of Use apply).