Terms of Supply of Products

Last updated: 23 March 2023

PART A – TERMS APPLYING TO ALL CUSTOMERS

1. INFORMATION ABOUT US

   1. The websites www.mightyape.co.nz and www.mightyape.com.au (“Our Website”) are sites operated by Mighty Ape Limited (“We” or “Us”). We are a limited liability company registered in New Zealand under company number 966002 and Australia ABN number 92163144250.
   2. We are located in New Zealand but ship orders both domestically within New Zealand, and internationally including Australia.

2. TERMS OF SUPPLY OF GOODS

   1. These Terms of Supply of Products (“Terms of Supply”), together with our Terms and Conditions and any other documents or forming part of our Terms and Conditions (as described in our General Terms and Conditions of Use) will apply to any contract between us (“Contract”) for the sale or supply of any merchandise, goods or other products (“Products”) to you. We recommend that you print a copy of all relevant documents for future reference.
   2. By ordering any Products from us, you agree to be bound by our Terms and Conditions (including these Terms of Supply) as amended from time to time.
   3. Please read these our Terms and Conditions carefully and make sure that you understand them before you order any Products, as they will apply to your order. If you refuse to accept our terms, you will not be able to order any Products from us.

3. HOW THE CONTRACT IS FORMED BETWEEN YOU AND US:

   1. Our shopping pages will guide you through the steps you need to take to place an order for a Product with us (“Order Process”). You will need to provide all required information. Our Order Process allows you to check and amend any errors before submitting your order to us. Please take the time to read and check your order at each step of the Order Process.
   2. After you place an order, you will receive an e-mail from us acknowledging that we have received your order. However, please note that this does not mean that your order has been accepted. Our acceptance of your order will take place as described in clause 3.3.
   3. We will confirm our acceptance to you by sending you an e-mail that confirms that the order has been accepted and the Products have been dispatched (“Dispatch Confirmation”). The Contract between us for the Products will only be formed when we send you the Dispatch Confirmation.
   4. We may at our complete discretion choose to reject any order you place. If we choose not to accept an order for a Product (perhaps because that Product is not in stock, no longer available, because we cannot meet your requested delivery date or because of an error in the price on Our Website or for any other reason), we will inform you of this by e-mail and we will not process your order. If you have already paid for the Products, we will refund you the full amount including any delivery costs charged as soon as possible. We as the seller will have no further liability to the buyer in relation to the rejected part of that order.
   5. All orders are subject to the availability of products. We may revise our range of products or the specification of any product at any time and without notice to you.
   6. We are entitled at any time to correct all errors and omissions (whether clerical, computational or otherwise) in any advertising, quotation, invoice or acknowledgement. Due to our administrative processes, errors (if any) may be discovered up to 30 days after the goods have been delivered to you. We will notify you promptly of any error or omission we discover, and give you the option of returning the goods for a full refund.
   7. Any attempt by you to vary or cancel any order you have placed with us will have no effect unless accepted in writing by us. Where we accept cancellation by you (in our sole discretion) we may levy a handling charge of up to 15% of the otherwise applicable purchase price.

4. OUR RIGHT TO VARY THESE TERMS

   1. Every time you order Products from us, the Terms and Conditions in force at the time of your order will apply to the Contract between you and us, but we may, in the following circumstances, revise these Terms and Conditions as they apply to any existing order you have placed with us already:
      1. To reflect any changes in relevant laws and regulatory requirements; and
      2. As reasonably necessary following any other circumstances beyond our reasonable control.
   2. If we have to revise our Terms and Conditions as they apply to an existing order from you, we will contact you to give you reasonable advance notice of the changes and let you know how to cancel the Contract if you are not happy with the changes. You may cancel the Contract either in respect of all the affected Products you have ordered or just the Products you have yet to receive. If you opt to cancel, you will have to return (at our cost) any relevant Products you have already received and we will arrange a full refund of the price you have paid, including any delivery charges.

5. DELIVERY OF PRODUCTS

   1. Once we have confirmed acceptance of your order, we will contact you with an estimated delivery date.
   2. You may cancel a Contract affected by an Event Outside Our Control which has continued for more than 30 days. To cancel please contact us. If you opt to cancel, you will have to return (at our cost) any relevant Products you have already received and we will refund the price you have paid, including any delivery charges.
   3. Delivery of an Order will be deemed to be completed when we deliver the Products to
      the address you gave us and the Products will be your responsibility from that time. You may specify delivery instructions for an order (for example, you may authorise the delivery agent to leave the products in a specified location if you will not be at the delivery address). We will not be responsible for any order that is delivered, or attempted to be delivered, in accordance with your delivery instructions.
   4. You are solely responsible for ensuring that your order complies with all applicable laws and regulations of the country for which the Products are destined. We will not be liable or responsible if you break any such law.
   5. Except for New Zealand and Australian Goods and Services Tax (as applicable depending on the shipment delivery address and unless otherwise stated), prices do not include import fees, duties, tariffs, taxes or other imposts or charges which may be payable in relation to your order. You are solely responsible to pay any import fees, duties, taxes, and other imposts or charges which are payable in relation to your order.
   6. If you order Products from our site for delivery to one of the International Delivery Destinations including Australia, your order may be subject to import duties and taxes which are applied when the delivery reaches that destination. Please note that we have no control over these charges and we cannot predict their amount. You will be solely responsible for payment of any such import duties and taxes. Please contact your local customs office for further information before placing your order. Note also that New Zealand law requires all international packages to have attached customs documentation, which describes the goods being sent and their cost.
   7. We will endeavour to dispatch your order within the time frame specified in relation to a particular product. If we are unable to dispatch your order within the time frame specified we will endeavour to contact you and advise you of the expected dispatch date. Any quotations of delivery times by us are made in good faith but are estimates and we shall not be bound by such quotation and we will not be liable for any loss, expense, or other damage caused by any delay in delivery.
   8. We reserve the right to dispatch your order in one delivery or by instalments. Failure to deliver any instalment shall not entitle you to repudiate the contract as to any instalments already delivered. You may cancel any undelivered instalments up until the instalment is confirmed.
   9. You own the Products only once we have received payment in full, including all applicable delivery charges, and they have been handed over to the carrier
   10. Our liability for shortages in the quantity of goods delivered is limited to making up the shortages. Where you believe that there is a shortage in the quantity of products delivered, you must notify us of any such claim within 7 days of delivery and must provide us with a reasonable opportunity to investigate that claim.
   11. All orders delivered within New Zealand are insured against damage or loss during transit up to the value of NZ$1,500. 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 you can optionally purchase additional insurance cover up to the value of NZ$1,500. We 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.
   12. We will ensure that Products leaving our premises are adequately packed. Claims for damage or loss in transit will be made against the carrier on your behalf in the prescribed manner.
   13. Prior to acknowledging delivery to the carrier you must ensure that the complete consignment as per the carrier's note has been received. If there is a shortage or visible damage to outer packaging the carrier's note must be endorsed accordingly.
   14. Within 7 days of receipt of consignment you 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 us details of any claim should be advised to us to allow us to claim against the carrier on your behalf.
   15. Occasionally our delivery to you may be affected by an Event Outside Our Control (as defined in the General Terms). See General Terms for our responsibilities when this happens.

6. PRICE OF PRODUCTS AND DELIVERY CHARGES

   1. Prices for our Products may change from time to time at our sole discretion.
   2. The prices of the Products you order will be as quoted on Our Website at the time you submit your order, unless we discover that despite our reasonable efforts, some of the Products on Our Website may be incorrectly priced. If we discover an error in the price of the Products you have ordered we will contact you to inform you of this error and we will give you the option of continuing to purchase the Product at the correct price or cancelling your order. We will not process your order until we have your instructions. If we are unable to contact you using the contact details you provided during the order process, we will treat the order as cancelled and notify you in writing. If you have already made a payment to us for Products, and the relevant order is cancelled, we will refund the amounts already paid by you.
   3. For New Zealand or Australian delivery addresses, all prices are GST inclusive unless otherwise stated. If your order ships to a delivery address outside New Zealand or Australia, no GST will be charged.
   4. The price of a Product includes GST (where applicable) at the applicable current rate chargeable in New Zealand or Australia (depending on the shipment delivery address) for the time being. However, if the rate of GST changes between the date of your order and the date of delivery, we will adjust the GST you pay, unless you have already paid for the Products in full before the change in GST takes effect.
   5. The price of a Product does not include delivery charges. Our delivery charges are as advised to you during the checkout process, before you confirm your order. To check relevant delivery charges, please refer to our Delivery Charges help page.

7. HOW TO PAY

   1. Payments to us may only be made using one of the payment options we give you at the time of placing your order.
   2. Payment for the Products and all applicable delivery charges is required in advance, but we will not charge your debit card or credit card until we dispatch your order except:
      1. For the purposes of pre-authorising your card as valid, as required by your bank (which usually requires we put a $1 “Authorisation Hold” charge on your credit card to validate that your credit card details are correct, with that charge then automatically removed within 7 days (usually faster) so you’re not actually charged the $1 fee); or
      2. For the purposes of verifying card ownership; or
      3. if your order is being shipped by a third party.
   3. You warrant that you have the appropriate authority and power to validly accept any applicable payment terms and any terms and conditions applicable to the products which you request through Our Website. You agree that you are able to, and will, meet your obligations in relation to the applicable payment terms promptly, efficiently, diligently, professionally and in accordance with any relevant laws.
   4. You represent and warrant that you are over 18 and have legal capacity to contract in New Zealand. If you are using a credit or debit card, you represent and warrant that the card is issued in your name and you will pay all charges incurred through the charged services. Where we offer that you may make payments to us by means of a third party payment gateway (such as Paypal), you must also adhere to any additional terms the relevant payment service provider advises at the time of payment.
   5. Payments made by means of the online service payment process is through a secure website, but you acknowledge and agree that Internet transmissions are never entirely secure or private and that while we take precautions to minimise the related risks, we cannot guarantee that any message or information you provide through the website (including credit card information) will not be read or intercepted by others who breach the relevant security measures. We are not liable for the interception, 'hacking' or other unauthorised access of information by unauthorised third parties.
   6. It is your responsibility to ensure that the transaction, credit card information, and all other details you provide in relation to your payments made through the online service payment process are correct.
   7. Mighty Ape may not be able to, or may decline to, accept payment from you by your nominated payment method at any time for any reason including and without limitation the following:
      1. where our fraud detection systems detect possible irregularities;
      2. because your financial institution has declined payment; or
      3. because your payment card has expired.

Where this is the case, your order will be placed on hold and Mighty Ape will contact you to ask you to provide additional information (for example, proof of identity type documents) or arrange payment by another method. If you are unable to comply with Mighty Ape’s requests within the timescale specified, we may cancel your order

1. WARRANTIES AND RETURN OF GOODS

   1. Goods supplied in accordance with your order can only be returned with our express approval.
   2. Please refer to our Returns Policy to see what is expressly covered and excluded.
   3. To the maximum extent permitted by law however, and subject to the express contents of our Product Warranties and Returns Policy and our obligations under the Consumer Guarantees Act 1993 (which are not affected by anything in our Terms and Conditions):
      1. we disclaim all other warranties, representations, and guarantees (whether, express, implied, or statutory), with respect to any product or any information supplied by us including, but not limited to, warranties of availability, accuracy, non-infringement, completeness, timeliness, currency, merchantability, or fitness for a particular purpose;
      2. our maximum liability (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 you will be limited to the price paid by you for that product or service;
      3. we 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 your access to, use of, or reliance upon, any product or any information supplied to you by us;
      4. Our potential liability is confined to the original purchaser of any Products from us, it being agreed that we have no liability to any purchaser of the goods from us in that our rights under the contract are not assignable without our prior written consent; and
      5. The warranty does not cover damage from misuse, accident, negligent, inappropriate or improper operation, maintenance, installation, modification or adjustment.

2. DESCRIPTION OF PRODUCTS

   1. Modifications and improvements are constantly being made to our Products, prices and data.
   2. Although we have endeavoured to ensure that the product and pricing information provided on Our Website is accurate, complete, and current, we do not provide any representations or warranties as to its accuracy, completeness or currency of information, and we shall not be responsible or liable for any inaccurate, incomplete, or out-of-date information on Our Website.
   3. We also rely on information from our suppliers and product manufacturers and therefore the descriptions, illustrations and literature are not binding on us.
   4. If the goods do not match the description on Our Website, you should inform us immediately so that we may take the appropriate action.

3. COMPLIANCE AND AGE RESTRICTIONS

   1. You are 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 us.
   2. We are subject to legal obligations regarding the sale of classified and age-restricted materials, and will not knowingly sell or supply any age-restricted Products or materials of any kind to a person under the legally prescribed age for that classification. You confirm that when placing any orders with us, you are not obtaining an age-restricted product for yourself or on behalf of a person that is not of the required legal age for obtaining that product.

4. CURRENCIES

   1. 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) on www.mightyape.co.nz and Australian Dollar (AUD) on www.mightyape.com.au. Any currency conversion will take place online at the rate applicable at the time of purchase.

5. GIFT VOUCHERS

   1. Gift vouchers will not be exchanged and are not subject to returns for credit or refunds. Gift vouchers cannot be used to buy more gift vouchers. We will not replace a gift card that is lost or stolen after being received.
   2. Credit applied from Gift vouchers must be used within 12 months.

6. GOVERNING LAW

   1. Any claim or dispute arising hereunder shall be subject to arbitration in accordance with the Arbitration Act 1996.
   2. These conditions of use 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 terms and conditions.

7. FORCE MAJEURE

   1. We shall not be liable to you, 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 outside the seller's reasonable control, including but not limited to:
      1. an act of God (such as, but not limited to, fires, explosions, earthquakes, drought, tidal waves and floods);
      2. riot, commotion, strikes, go slows, lock outs or disorder, unless solely restricted to employees of the Supplier or of our Subcontractors; or
      3. acts or threats of terrorism.

PART B - ADDITIONAL TERMS WHICH APPLY IF YOU ARE A BUSINESS CUSTOMER

If you are purchasing any goods or services from us in the course of, or for the purposes of, any business activity you are involved with, the following terms and conditions will also apply in relation to those goods and services:

1. CONSUMER GUARANTEES ACT 1993

   1. You agree that our goods and services are supplied to you for business purposes and that the provisions of the Consumer Guarantees Act 1993 do not apply.

2. CREDIT, PAYMENT AND SECURITY TERMS

   1. Payment Obligations and Consequences of Default: You agree that unless we have specifically agreed otherwise with you in writing, you must pay for all Products, in full and without any setoff or deduction, before delivery of the Products is due. If however we have agreed at our discretion to provide you with any ability to pay for Products using credit or other deferred payment options, you agree that you must make payment in full by the due date for such payments. If you fail to pay any amount owing to us by the due date for that amount:
      1. Default Interest: we may charge you default interest at a rate equivalent to our bank's base lending rate at the time plus 5% per annum, with such interest payable on the amount overdue during the period from the due date until payment is made in full of both the principal and all interest thereon;
      2. Costs: you will be liable for all expenses and legal costs (as between solicitor and client) incurred by us as a result of any breach by you of our Terms and Conditions or in recovery or attempted recovery of any monies owed by you to us; and
      3. Suspension and/or Cancellation of other orders and your Account: we may, at our sole discretion if you have failed to make any payment to us, take various steps including without limitation:
         1. demanding immediate payment of all amounts owing to us on that or any other orders from you (whether or not those amounts were otherwise payable yet);
         2. refuse to accept or process any further orders from you;
         3. withhold delivery of any products to you (whether or not the subject of the order in question or otherwise); and/or
         4. temporarily suspend or permanently cancel your account with us; and
         5. we will not be liable to you in any way for the consequences of any such steps taken in response to your default on payment obligations.
   2. Security Interests: you acknowledge and agree that until we have received full payment for your order (without deduction or setoff of any kind), and regardless of whether we have already delivered the Products to you:
      1. Our Terms and Conditions constitute a security agreement for the purposes of section 36 of the Personal Property Securities Act 1999;
      2. We retain a security interest in all Products that you have not yet paid for in full, and you irrevocably agree that you:
         1. will sign any further documents and provide any further information which we may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
         2. indemnify us 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;
         3. will not register a financing change statement or a change demand on the Personal Property Securities Register without our prior written consent;
         4. will give us not less than 14 days' prior written notice of any proposed change in your name or any of your contact details; and
         5. waive your right to receive a verification statement in accordance with section 148 of the Personal Property Securities Act 1999.

3. RESALE OR ON-SUPPLY OF PRODUCTS:

   1. You agree that if you purchase any products for resale or on-supply to other parties, you must (and warrant that you will):
      1. Only do so on terms and conditions consistent with those on which we supplied the Products to you and any expressed requirements of the relevant manufacturers, and not give any warranties or representations regarding the Products which have not been approved by the relevant manufacturer of the Product, nor do or assist/allow another party to do anything which is inconsistent with the rights afforded to the manufacturer of those products (which may include us);
      2. Ensure you obtain all relevant permits, approvals, authorisations, licenses and consents, and comply at all times with all applicable laws and regulations relating to your activities;
      3. Not modify, relabel, repackage or otherwise alter the Products without fully disclosing such changes;
      4. Not claim or imply any sort of partnership, joint venture, or any other arrangement or status between you and us whatsoever;
      5. Not link to Our Website nor use any of our intellectual property (including without limitation pictures or descriptions of the products from Our Website) without our prior written consent.
   2. You acknowledge and agree that:
      1. you will make your own determination as to the fitness and suitability of the Products for your purposes;
      2. we are not liable to you or any other party in relation to your own trading activities, and you assume sole liability for all such matters;
      3. we have the right at all times to determine (in our sole discretion) whether we continue to accept further orders from you; and
      4. we are not liable to you for any losses of profits you may suffer, regardless of whether such losses were foreseeable for any reason.