Terms and Conditions

1. Definitions
1.1 “FSP” shall mean Funstuff Products (NZ) Ltd T/A Funstuff Products its successors and assigns or any person acting on behalf of and with the authority of Funstuff Products (NZ) Ltd T/A Funstuff Products.
1.2 “Customer” shall mean the Customer (or any person acting on behalf of and with the authority of the Customer) as described on any quotation, work authorisation or other form as provided by FSP to the Customer.
1.3 “Guarantor” means that person (or persons), or entity, who agrees to be liable for the debts of the Customer on a principal debtor basis.
1.4 “Goods” shall mean Goods supplied by FSP to the Customer (and where the context so permits shall include any supply of Services as hereinafter defined) and includes Goods described on any invoices, quotation, work authorisation or any other forms as provided by FSP to the Customer.
1.5 “Services” shall mean all services supplied by FSP to the Customer and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).
1.6 “Price” shall mean the price payable for the Goods as agreed between FSP and the Customer in accordance with clause 3 of this contract.

2. Acceptance
2.1 Any instructions received by FSP from the Customer for the supply of Goods and/or the Customer’s acceptance of Goods supplied by FSP shall constitute acceptance of the terms and conditions contained herein.
2.2 Upon acceptance of these terms and conditions by the Customer the terms and conditions are binding and can only be amended with the written consent of FSP.
2.3 The Customer shall give FSP not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer or any change in the Customer’s name and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s address, facsimile number, or business practice). The Customer shall be liable for any loss incurred by FSP as a result of the Customer’s failure to comply with this clause.

3. Price And Payment
3.1 At FSP’s sole discretion the Price shall be either:
(a) as indicated on invoices provided by FSP to the Customer in respect of Goods supplied; or
(b) FSP’s quoted Price (subject to clause 3.2) which shall be binding upon FSP provided that the Customer shall accept FSP’s quotation in writing within thirty (30) days.
3.2 FSP reserves the right to change the Price in the event of a variation to FSP’s quotation.
3.3 At FSP’s sole discretion a deposit may be required.
3.4 At FSP’s sole discretion:
(a) payment shall be due on delivery of the Goods; or
(b) payment shall be due before delivery of the Goods; or
(c) payment for approved Customer’s shall be due twenty (20) days following the end of the month in which a statement is posted to the Customer’s address or address for notices.
3.5 Time for payment for the Goods shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due seven (7) days following the date of the invoice.
3.6 Payment will be made by cash, or by cheque, or by bank cheque, or by credit card, or by direct credit, or by electronic banking, or by any other method as agreed to between the Customer and FSP.
3.7 GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.

4. Delivery Of Goods
4.1 At FSP’s sole discretion delivery of the Goods shall take place when:
(a) the Customer takes possession of the Goods at FSP’s address; or
(b) the Customer takes possession of the Goods at the Customer’s nominated address (in the event that the Goods are delivered by FSP).
4.2 At FSP’s sole discretion the costs of delivery are:
(a) included in the Price; or
(b) in addition to the Price.
4.3 The Customer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. In the event that the Customer is unable to take delivery of the Goods as arranged then FSP shall be entitled to charge a reasonable fee for redelivery.
4.4 FSP may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions in these terms and conditions.
4.5 The failure of FSP to deliver shall not entitle either party to treat this contract as repudiated.
4.6 FSP shall not be liable for any loss or damage whatever due to failure by FSP to deliver the Goods (or any of them) promptly or at all.

5. Risk
5.1 If FSP retains ownership of the Goods nonetheless, all risk for the Goods passes to the Customer on delivery.
5.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, FSP is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by FSP is sufficient evidence of FSP’s rights to receive the insurance proceeds without the need for any person dealing with FSP to make further enquiries.

6. Title
6.1 FSP and Customer agree that ownership of the Goods shall not pass until:
(a) the Customer has paid FSP all amounts owing for the particular Goods; and
(b) the Customer has met all other obligations due by the Customer to FSP in respect of all contracts between FSP and the Customer.
6.2 Receipt by FSP of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then FSP’s ownership or rights in respect of the Goods shall continue.

7. Customer’s Disclaimer
7.1 The Customer hereby disclaims any right to rescind, or cancel any contract with FSP or to sue for damages or to claim restitution arising out of any misrepresentation made to the Customer by FSP and the Customer acknowledges that the Goods are bought relying solely upon the Customer’s skill and judgment.

8. Defects
8.1 The Customer shall inspect the Goods on delivery and shall within fourteen (14) days of delivery (time being of the essence) notify FSP of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer shall afford FSP an opportunity to inspect the Goods within a reasonable time following delivery if the Customer believes the Goods are defective in any way. If the Customer shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which FSP has agreed in writing that the Customer is entitled to reject, FSP’s liability is limited to either (at FSP’s discretion) replacing the Goods or repairing the Goods.

9. Returns
9.1 Returns will only be accepted provided that:
(a) the Customer has complied with the provisions of clause 8.1; and
(b) the Goods are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonably possible in the circumstances.
9.2 Returned goods may (at FSP’s sole discretion), incur restocking and handling fees.

10. Consumer Guarantees Act 1993
10.1 If the Customer is acquiring Goods for the purposes of a trade or business, the Customer acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of Goods by FSP to the Customer.

11. Default & Consequences Of Default
11.1 If the Customer defaults in payment of any invoice when due, the Customer shall indemnify FSP from and against all costs and disbursements incurred by FSP in pursuing the debt including legal costs on a solicitor and own client basis and FSP’s collection agency costs.
11.2 Without prejudice to any other remedies FSP may have, if at any time the Customer is in breach of any obligation (including those relating to payment), FSP may suspend or terminate the supply of Goods to the Customer and any of its other obligations under the terms and conditions. FSP will not be liable to the Customer for any loss or damage the Customer suffers because FSP has exercised its rights under this clause.
11.3 Without prejudice to FSP’s other remedies at law FSP shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to FSP shall, whether or not due for payment, become immediately payable in the event that:
(a) any money payable to FSP becomes overdue, or in FSP’s opinion the Customer will be unable to meet its payments as they fall due; or
(b) the Customer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.

12. Cancellation
12.1 In the event that the Customer cancels delivery of Goods the Customer shall be liable for any loss incurred by FSP (including, but not limited to, any loss of profits) up to the time of cancellation.

13. Privacy Act 1993
13.1 The Customer and the Guarantor/s (if separate to the Customer) authorises FSP to:
(a) collect, retain and use any information about the Customer, for the purpose of assessing the Customer’s creditworthiness or marketing products and services to the Customer; and
(b) disclose information about the Customer, whether collected by FSP from the Customer directly or obtained by FSP from any other source, to any other credit provider or any credit reporting agency for the purposes of providing or obtaining a credit reference, debt collection or notifying a default by the Customer.
13.2 Where the Customer and/or Guarantors are an individual the authorities under clause 13.1 are authorities or consents for the purposes of the Privacy Act 1993.
13.3 The Customer and/or Guarantors shall have the right to request FSP for a copy of the information about the Customer and/or Guarantors retained by FSP and the right to request FSP to correct any incorrect information about the Customer and/or Guarantors held by FSP.

14. General
14.1 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.
14.2 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 jurisdiction of the courts of New Zealand.
14.3 FSP shall be under no liability whatever to the Customer for any indirect loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by FSP of these terms and conditions.
14.4 In the event of any breach of this contract by FSP the remedies of the Customer shall be limited to damages which under no circumstances shall exceed the Price of the Goods.
14.5 The Customer shall not be entitled to set off against or deduct from the Price any sums owed or claimed to be owed to the Customer by FSP.
14.6 FSP may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.
14.7 FSP reserves the right to review 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 FSP notifies the Customer of such change.
14.8 The provisions of the Contractual Remedies Act 1979 shall apply to this contract as if section 15(d) were omitted from the Contractual Remedies Act 1979.
14.9 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.
14.10 The failure by FSP to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect FSP’s right to subsequently enforce that provision.