GENERAL TERMS AND CONDITIONS OF TRADE

1.    Interpretation

1.1.    In these Terms and Conditions unless the context otherwise requires:

“Customer” means the person or entity contracting with PFL (including the Customer’s successors and permitted assigns) for the supply of Goods and includes any person acting on behalf of or with the authority of the customer;

“Default” means each of the events set out in clause 10.1;

“Goods” means all goods and inventory supplied by PFL to the Customer from time to time, provided that:

(a)    Solely for the application of the PPSA, where the Goods supplied are the Customer’s inventory, all references to Goods shall, in respect of those Goods, be read as references to inventory while they are held as inventory; and

(b)    Where the Goods supplied are not or are no longer held as the Customer’s  inventory, all references to Goods shall, in respect of those Goods, mean the Goods described in any relevant order form, packing slip or invoice (or its equivalent, whatever called) prepared by PFL and relating to those Goods, on the basis that each such order form, packing slip or invoice (or its equivalent) is deemed to be assented to by the Customer, incorporated in and form part of, these Terms and Conditions, and (unless the context requires otherwise) includes all proceeds of such Goods and any product or mass which the Goods subsequently become part of;

“Log In Account” means a password/username interface Service provided on the Website to facilitate the making of Orders by non-commercial Customers;

“Order” means a written or verbal order or instructions from the Customer to PFL with respect to the purchase of Goods from PFL;

“Payment System” means the electronic payment system provided on the Website via an industry standard payment gateway as a service to assist non-commercial Customers with payment for Orders;  

“Privacy Policy” means PFL’s privacy policy as posted on the Website and as amended from time to time by PFL;

“Terms and Conditions” means these terms and conditions of trade between PFL and the Customer incorporating these Terms and Conditions, the Privacy Policy, the Website Terms of Use, quotes, applications for credit, and any other terms and conditions between PFL and the Customer that have been agreed in writing by the parties;

“Website” means the website www.planetfun.co.nz (or any similar website) owned and operated by PFL from time to time; and

“Website Terms of Use” means PFL’s website terms of use as posted on the Website and as amended from time to time by PFL.

1.2     The Goods are supplied on these Terms and Conditions.  No variation of these Terms and Conditions is permitted unless PFL has agreed in writing to such variation.  These Terms and Conditions prevail over the terms of any purchase order or any other terms of contract submitted by the Customer.

2.    Acceptance

2.1    Any Order received by PFL from the Customer for the supply of Goods and/or, as the case may be, the signing of any document provided by PFL to the Customer in relation to the provision of Goods shall constitute acceptance of these Terms and Conditions.  For the avoidance of doubt, such acceptance also constitutes acceptance of the Website Terms of Use and the Privacy Policy.

2.2    Where any inconsistency exists between the Terms and Conditions and the Website Terms of Use these Terms and Conditions shall prevail.

3.    Orders and Cancellation

3.1    Orders may only be made for Goods within New Zealand.  PFL may be restricted by licences or distributorship agreements and any Order for Goods outside of New Zealand must be agreed to in writing by PFL.

3.2    To make an Order for Goods from PFL, the Customer is required to be currently approved by PFL for credit purposes, unless payment is made in advance or PFL reaches an alternative payment arrangement in writing with the Customer.  

3.3    PFL reserves the right to accept any Order, or part of an Order, and to limit quantities of Goods relating to any Order without being obliged to provide reasons for such actions.  In the event that payment for an Order has been made by the Customer and PFL rejects an Order or part of an Order or limits the quantities of Goods to be supplied under an Order then PFL shall return the cleared funds paid by the Customer (in the amount the of rejected Order or part Order or the amount overpaid as a result of the limitation of quantities, as relevant).

3.4    PFL reserves the right to deliver any Goods ordered by instalments, in which case any instalment will comprise a separate contract and shall be paid for as if it was a separate Order.

3.5    The Customer may only cancel an Order if agreed in writing by PFL.

3.6    If any Order is cancelled under clause 3.5 the Customer shall remain liable to make payment for any costs incurred by PFL in connection with such order up to the time of cancellation.

4.    Credit

4.1    Commercial Customers of PFL are not able to submit orders using a Log In Account however they may make an application for credit to PFL’s head office.  PFL may extend credit (in PFL’s sole discretion) to certain commercial Customers on the terms PFL deems acceptable.   

4.2    PFL reserves the right to refuse credit to the Customer without being obliged to provide reasons for such refusal.  In the event that credit is refused all Orders by the Customer must be paid by bank cheque, in cash or in cleared funds by way of the Payment System prior to delivery.

4.3    PFL may, at any time and in its absolute discretion, cancel, alter or suspend any credit terms (if applicable) when, in PFL's opinion, the financial condition of the Customer or the status of the Customer's account requires it and the Customer agrees to pay on demand all sums owing in connection with any credit facility in the event the credit facility is suspended or cancelled.

4.4    If PFL grants any credit facility to the Customer, the Customer agrees that a demand purporting to be signed on behalf of PFL identifying unpaid amounts is conclusive evidence that such amounts are payable and unpaid.

4.5    The Customer agrees that:

(a)    Each Order it makes shall be deemed to include a representation that it is solvent and able to pay all of its debts as and when they fall due; and

(b)    When any Order is made, the Customer shall inform PFL of any facts which might reasonably affect any decision to accept the Order and/or grant credit.  Any failure to do so shall be deemed to create an inequality of bargaining position, the taking of an unfair advantage of PFL and to be unconscionable, misleading and deceptive.

4.6    PFL shall have the sole discretion to determine the amount of credit extended to the Customer at any time.

5.    Price

5.1    All prices of Goods are quoted in New Zealand Dollars and are exclusive of GST.

5.2    The prices of the Goods are subject to alteration by PFL without notice.

5.3    The Customer agrees to pay all the freight costs on all Goods delivered to the Customer as arranged by PFL unless PFL (in its sole discretion) agrees otherwise.

5.4    All duties, levies, government charges and taxes, bank fees or any similar charge are for the Customer’s account and may be added to the invoice (in PFL’s sole discretion).

6.    Payment

6.1    Where the Customer purchases Goods from PFL via a Log In Account payment shall be made at the time of purchase via the Payment System.  Goods will not be shipped for delivery to a Customer that uses the Log In System until payment for such Goods in cleared funds has been received by PFL.

6.2    Subject to clause 6.1 above, all accounts rendered by PFL to the Customer shall be paid in full in accordance with the timeframe specified in invoices provided to the Customer or, if no such timeframe is specified, within seven (7) days of the date of the invoice.  In the event that payment is not made by such date then the Customer is in Default and PFL may take action under clauses 9 and 10.  PFL may also remove any price discounts provided at the time of invoicing should payment not be forthcoming in the time frame specified on the invoice.

6.2    Payment shall be made by the Customer in cleared and immediately available funds, without set-off, counter-claim, deduction or withholding, except as is permitted by law.

7.    Supply and Delivery

7.1    Unless otherwise agreed in writing, PFL is to organise the delivery of Goods to the Customer at the Customer’s address as notified by the Customer to PFL at the time of placing the Order.  If no address was supplied at the time of placing the Order then PFL is entitled to rely upon the last known address for the Customer.

7.2    PFL agrees to use reasonable endeavours to supply all Orders to the Customer or as the Customer may direct as soon as practicable following receipt of Orders from the Customer.

7.3    Any delivery times specified by PFL shall be approximate only and PFL shall not be liable for any loss or damage suffered or incurred by the Customer or by any third party as a result of any delay by PFL in delivering the Goods.

7.4    If it becomes impracticable for PFL to supply any Goods ordered by the Customer, PFL shall use reasonable endeavours to obtain a substitute product reasonably suited for the Customer’s requirements, and may offer to supply that product in substitution, at PFL’s normal price of that substituted product.  The Customer shall be free to accept or decline that offer.  The Customer shall have no claim against PFL in the event that it is impracticable for PFL to supply Goods or a substitute product.

7.5    PFL may, in its sole discretion and on terms acceptable to it, supply a commercial Customer with a range of promotional materials to facilitate the Customer’s sale of the Goods where the Customer purchases Goods as part of a business for commercial on-sale.

8.    Risk

8.1    Notwithstanding that PFL retains ownership of the Goods until payment is made in full, all risk in the Goods passes to the Customer on delivery to the Customer’s address in accordance with clause 7.1(or deemed delivery).

8.2    If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, PFL is entitled to receive all insurance proceeds payable in respect of the Goods.  This is without limitation to PFL’s other rights against the Customer under these Terms and Conditions and at law.

9.    Title and Security (Personal Property Securities Act 1999 (“PPSA”))

9.1    The Customer grants to PFL a purchase money security interest (“PMSI”) in the Goods and agrees that the PMSI has attached to all Goods supplied now or in the future to the Customer by PFL and that the attachment of the PMSI has in no way been deferred or postponed from the date of the purchase of the relevant Goods.

9.2    Title in any Goods supplied by PFL passes to the Customer only when the Customer has made payment in full for all Goods provided and of all other sums due to PFL by the Customer on any account whatsoever. Until all sums due to PFL have been paid in full PFL has a security interest in all Goods provided to the Customer.

9.3    Without limitation to any other rights afforded to PFL under the PPSA, until the Customer has paid for the Goods in full:

(a)    The Goods shall be held as fiduciary bailee for and on behalf of PFL;

(b)    If the Goods are sold by the Customer before payment in full to PFL then the proceeds of sale (less any mark-up imposed by the Customer on such sale) shall be held in trust by the Customer for PFL in a separate bank account; and

(c)    The Goods shall be stored in such a way to ensure that they are identifiable as the separate property of PFL.

9.4    If the Goods are attached, fixed or incorporated into any property of the Customer or any third person, by way of any manufacturing or assembly process by the Customer or any third party, title to the Goods shall remain with PFL until payment has been made in full, and where those Goods are mixed with other property so as to be part of or constituent of any new products, title to those new products shall be deemed to be assigned by the Customer to PFL by way of security for the full satisfaction by the Customer of all amounts owed by the Customer to PFL.

9.5    The Customer hereby irrevocably grants PFL and its agents authority to enter any premises owned or occupied by the Customer or on which Goods are situated at any reasonable time after Default by the Customer or before Default if PFL believes that a Default is likely and to remove and repossess any Goods and any other property to which the Goods are attached or in which the Goods are incorporated. PFL shall not be liable for any costs, damages, expenses or losses suffered or incurred by the Customer or any third party as a result of this action, nor will PFL be liable to the Customer or such third parties in contract, tort or otherwise in any way unless by statue such liability cannot be excluded. PFL may (at its sole option) either resell any repossessed Goods and credit the Customer’s account with the net proceeds of sale (after deduction of all repossession, storage and selling costs) or may retain any repossessed Goods and credit the Customer’s account with the invoice value thereof less such sum as PFL reasonably determines on account of wear and tear, depreciation, obsolescence, loss or other costs.

9.6    The Customer undertakes to sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which PFL may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register in respect of the PMSI granted to PFL under clause 9.1.

9.7    The Customer waives its rights as a debtor under sections 114(1)(A), 116, 120(2), 121, 125, 126, 127, 129, 131, 132, 133 and 134 of the PPSA.

9.8    Unless otherwise agreed to in writing by PFL, the Customer waives its right to receive verification statements and financing change statements under the PPSA.

9.9    If the Credit (Repossession) Act 1997 applies to any transaction between the Customer and PFL, the Customer has the rights provided for in such Act but only to the extent that they are inconsistent with anything in these Terms and Conditions and cannot be contracted out of.

10.    Default and Consequences of Default

10.1    Each of the following shall constitute a Default by the Customer:

(a)    Non payment of any sum by the due date;

(b)    The Customer intimates that it will not pay any sum by the due date;

(c)    Failure by the Customer to comply with any obligations imposed on it under these Terms and Conditions, the Website Terms of Use and the Privacy Policy;

(d)    Where PFL has reasonable cause to believe that the information which the Customer has supplied pursuant to the Privacy Policy is incorrect or no longer correct, and the Customer fails to satisfactorily correct this information within five business days of a request being made by PFL;

(e)    Any Goods are seized by any other creditor of the Customer;

(f)    Any Goods are materially damaged after delivery to the Customer and before payment in full has been made by the Customer;

(g)    The Customer is declared bankrupt, is placed in liquidation or voluntary administration or a receiver or administrator is appointed to any of the Customer’s assets; or

(h)    A material adverse change in the financial position of the Customer occurs (as reasonably determined by PFL).

10.2    If a Default occurs all amounts owing by the Customer shall be immediately due and payable and PFL shall be entitled to enforce all rights available to it under these Terms and Conditions, at the cost, risk and responsibility of the Customer in all respects.

10.3    If the Customer fails to make payment of any amount by the due date interest (calculated daily from the due date until the date that payment is made in full to PFL) shall accrue and be payable on the overdue amount at the rate of 2% per calendar month. Such interest shall compound monthly at such a rate after as well as before any judgment.

10.4    If the Customer defaults in payment of any amount when due, the Customer shall indemnify PFL from and against all costs and disbursements incurred by PFL (including solicitor/client costs on a full indemnity basis and collection agency costs), arising from, or consequent on, enforcement and/or collection of the overdue amount.

10.5    If a Default occurs, then without prejudice to any other rights of PFL under these Terms and Conditions or at law PFL may, in its sole discretion:

(a)    Suspend or terminate the supply of Goods to the Customer and any of PFL’s other obligations under these Terms and Conditions.; and/or

(b)    Cancel all or any part of any Order of the Customer which remains unperformed.

10.6    PFL will not be liable to the Customer for any loss or damage the Customer suffers as a result of any exercise by PFL of its rights under clauses 9 and 10.

10.7    PFL’s rights under clauses 9 and 10 are in addition to and not in substitution for any other rights PFL may have at law.

11.    Consumer Guarantees Act 1993

11.1    Where the Customer is not a “Consumer” (as that term is defined in the Consumer Guarantees Act 1993) or where the Customer acquires or holds themselves out as acquiring goods for the purpose of a business then:

(a)    The provisions of the Consumer Guarantees Act 1993 shall not apply; and

(b)    The only warranties, guarantees or undertakings PFL gives to the Customer in relation to the Goods (whether in relation to quality, fitness for purpose or otherwise) are those which are expressly stipulated by PFL to the Customer in writing.

11.2    Where the Customer is a “Consumer” (as that term is defined in the Consumer Guarantees Act 1993), and is not purchasing goods for the purpose of a business, then notwithstanding anything contained in these Terms and Conditions the Customer shall have the rights conferred on Consumers by the Consumer Guarantees Act 1993.

12.    Returns

12.1    The Customer shall inspect the Goods on delivery and shall within fourteen (14) days of such inspection notify PFL of any alleged defect, shortage in quantity, damage or failure to comply with any quotation or description agreed in writing by PFL (“the Alleged Defect”).  The Customer will supply information to PFL by email account@planetfun.co.nz or calling 09 917 4010 regarding the Alleged Defect and the corresponding invoice number for the Goods affected.  Following receipt of such information, PFL will supply the Customer with a Return Authorisation Number (“RA Number”) in respect of the Goods affected.

12.2    The Customer shall afford PFL an opportunity to inspect the Alleged Defect within a reasonable time of the Customer notifying PFL of the Alleged Defect.

12.3    If the Customer shall fail to comply with clauses 12.1 and 12.2, the Goods provided shall be deemed to be free from any defect, damage or failure to comply with any description or quotation.

12.4    For any Alleged Defect which PFL has agreed in writing that the Customer is entitled to reject, PFL’s liability is limited to either (at PFL’s discretion) replacing or repairing the relevant Goods or providing the Customer with a credit note.

12.5    Returns of Goods will only be accepted by PFL if:

(a)    The Customer has complied with the provisions of clause 12.1 or PFL has agreed in writing to accept the return of the Goods; and

(b)    The Goods are returned at the Customer’s cost within fourteen (14) days of delivery (or deemed delivery) and are accompanied by the RA Number issued by PFL; and

(c)    The Goods are returned in the condition in which they were delivered.

13.    Intellectual Property

13.1    The Customer acknowledges that PFL is the sole owner (or licensee) of all intellectual property (including all trade marks, brands, trade names, business know how, ideas, methodologies, routines, systems and processes) which:

    (a)    Relates to or arises, directly or indirectly, out of the Goods supplied by PFL;

    (b)    Is developed or contributed to by PFL in relation to any information, or documentation supplied by PFL to the Customer;

    (c)    Includes all information and materials on the Website; and

    (d)    Arises as a result of PFL performing any other work for the Customer.

13.2    The Customer acknowledges that the intellectual property referred to at clause 13.1 is to remain the sole property of PFL (or its licensors) and that PFL does not give the Customer any ownership of, or any other intellectual property interest in the same except where Goods are supplied to a commercial Customer for the purpose of resale then the Customer will be deemed a licensed reseller of those Goods to the public in New Zealand.

14.    Log In Account use

14.1    This clause governs the use of Log In Accounts on the Website used by non-commercial Customers.  The Customer acknowledges that it is responsible for its Log In Account.

14.2    When setting up a Log In Account each Customer must create a username and a password for the purpose of making Orders for Goods.

14.3    The Customer is the sole controller of any data inputted through use of the Log In Account, and it is the Customer’s sole responsibility to ensure the necessary compliance with and to adopt all security measures required in relation to the Log In Account.

14.4    The Customer is solely responsible for maintaining and safeguarding access to the Log In Account.  Should the Customer suspect its Log In Account has been compromised, it is the Customer’s sole responsibility to take immediate action to protect its Log In Account.  In addition, the Customer must notify PFL immediately and PFL will be entitled to take such action as it considers appropriate (which may, without limitation, include closing the Log In Account or changing the username and/or passwords).

14.5    A Log In Account will be deemed inactive if there has been no successful login to the Log In Account for a twelve (12) month period. Inactive Log In Accounts will be deleted from PFL’s system without notice.  Upon deletion of a Log In Account, any stored information may be lost and may become permanently unrecoverable.

14.6    Each time the Log In Account is accessed with the Customer’s username and password PFL will act on any instructions given to it or transactions initiated and allow access to the Log In Account, whether or not the person using the username and password is authorised to issue or initiate the instructions or transactions or access the Log In Account.  PFL need not and will not make any further inquiries to verify the authorisation, instructions or transactions or any access to the Log In Account and will assume that the Customer has authorised all access to the Log In Account.

14.7    A password must be kept confidential and must not be disclosed to anyone else including family and friends, nor other affiliates of the Customer, nor written down nor stored in a file on a computer, or autosaved as passwords.

14.8    A password must not relate to any known personal information about the Customer, including, but not limited to, birthdates, telephone numbers, drivers license number or family member’s names, and must exclude obvious or sequential numbers and letters.

14.9    The security of a password is totally the responsibility of the Customer.  To the extent permitted by law, PFL will not be held accountable nor responsible for any claim or loss that results directly or indirectly, from any unauthorised use or misuse of the password.  The Customer will be required to indemnify PFL for any loss suffered by PFL from any such wrongful use or misuse of the password.

14.10    As soon as the Customer discovers that its password has been lost or stolen, or there has been an unauthorised use of the Log In Account, or another person knows (or might know) the password, the Customer must either:

(a)    Notify PFL by calling its phone service on 09 917 4010, emailing PFL at planetfun@planetfun.co.nz or calling into the PFL office at Level 2, 3 Anzac Street, Takapuna, Auckland; or

(b)    Change the password by using the Log In Account, and following the directions given on the Website.

14.11    Any breach of the Terms and Conditions, Website Terms of Use or the Privacy Policy may result in the suspension and/or termination of the Log In Account in the sole discretion of PFL.

14.12    PFL reserves the right to terminate or suspend a Log In Account at any time without any requirement to give prior notice to the Customer.

14.13    Log In Accounts are only for use by non-commercial Customers and Goods purchased via a Log In Account cannot be onsold or used for commercial gain.  By using a Log In Account the Customer warrants that it is a non-commercial Customer and is purchasing Goods in accordance with this these Terms and Conditions, the Website Terms of Use and the Privacy Policy.  PFL will not be liable for any loss or damage as a result of a breach of the Terms and Conditions, the Website Terms of Use or the Privacy by the Customer.  

15.    Limitation of PFL’s Liability

15.1    To the extent legally permitted, and subject only to clause 11:

(a)    All warranties and representations implied by customary practice, at law, or under statute, are excluded;

(b)    PFL's liability in connection with any Goods is limited to the refund of the Price actually paid by the Customer to PFL for the relevant Goods.  In no event shall PFL’s liability to the Customer exceed such amount;

(c)    PFL shall not be liable in contract, tort (including negligence), or otherwise for any direct or indirect damage, economic loss, or consequential or other loss whatsoever in respect of or arising out of Goods provided by PFL, use of the Website, infringement of any intellectual property or any act or omission of PFL.

15.2    The information on the Website or contained with the Goods is supplied on the condition that the Customer will make its own determination as to the accuracy and usefulness of the information.  PFL is not responsible for decisions the Customer makes as a result of information on the Website or contained with the Goods or any subsequent loss or damage to any person as a result of the decisions of the Customer.

16.    Indemnity

16.1    The Customer irrevocably and unconditionally agrees to indemnify PFL from and against all losses, costs (including solicitor/client costs on a full indemnity basis), expenses, claims, proceedings and actions suffered or incurred by, or brought against, PFL as a result of or in connection with any breach of the Terms and Conditions, the Website Terms of Use or the Privacy Policy.

17.    Miscellaneous

17.1    If any provision of these Terms and Conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.

17.2    These Terms and Conditions and any contract to which they apply shall be governed by the laws of New Zealand and are subject to the exclusive jurisdiction of the courts of New Zealand.

17.3    PFL may assign its rights under these Terms and Conditions and under any contract formed with the Customer and may sub-contract all or any part of its rights and obligations, in each case without the Customer’s consent.

17.4    PFL reserves the right to review and amend these Terms and Conditions at any time.  If, following any such review, there is to be any change to these Terms and Conditions, then that change will take effect from the date on which PFL uploads the amended or revised Terms and Conditions on the Website.

17.5    PFL shall not be liable for any default or breach of these Terms and Conditions due to any act of God, war, terrorism, strike, lock out, industrial action, fire, flood, drought, storm or other event beyond PFL’s reasonable control.

17.6 Every competition, as run on this website, will have it's own terms and conditions. These will be available on each competition.

17.8 Every competition, as run on the Planet Fun Facebook page, will adhere to standard terms and conditions. These can be presented on request.