1.1 “Contract” means the terms and conditions contained herein, together with any quotation, order, invoice or other document or amendments expressed or implied to be supplemental to this Contract.
1.2 “Play ‘N’ Learn” means Play ‘N’ Learn Limited T/A Play ‘N’ Learn, its successors and assigns or any person acting on behalf of and with the authority of Play ‘N’ Learn Limited T/A Play ‘N’ Learn.
1.3 “Customer” means the person/s entities or any person acting on behalf of and with the authority of the Customer requesting Play ‘N’ Learn to provide the Goods and/or Services as specified in any proposal, quotation, order, invoice or other documentation, and:
(a) if there is more than one Customer, is a reference to each Customer jointly and severally; and
(b) if the Customer is a partnership, it shall bind each partner jointly and severally; and
(c) if the Customer is a part of a Trust, shall be bound in their capacity as a trustee; and
(d) includes the Customer’s executors, administrators, successors and permitted assigns.
1.4 “Goods” means all goods and/or services (including but not limited to any consultation and installation) supplied by Play ‘N’ Learn to the Customer at the Customer’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
1.5 “Confidential Information” means information of a confidential nature whether oral, written or in electronic form including, but not limited to, this Contract, either party’s intellectual property, operational information, know-how, trade secrets, financial and commercial affairs, contracts, client information (including but not limited to, “Personal Information” such as: name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) and pricing details.
1.6 “Cookies” means small files which are stored on a user’s computer. They are designed to hold a modest amount of data (including personal information) specific to a particular client and website, and can be accessed either by the web server or the client’s computer. If the Customer does not wish to allow Cookies to operate in the background when ordering from the website, then the Customer shall have the right to enable / disable the Cookies first by selecting the option to enable / disable provided on the website, prior to ordering Goods via the website.
1.7 “Price” means the Price payable (plus GST, where applicable) for the Goods as agreed between Play ‘N’ Learn and the Customer in accordance with clause 6 below.
1.8 “Delivery” means delivery of the Goods and/or Services as set out in clause 7.3.
1.9 “Force Majeure” includes strike, industrial dispute, raw material shortage, supplier issue, natural disaster, epidemic or pandemic, collision, accident, contamination or radiation, crime, civil unrest, act of terrorism, embargo, government sanction, war or any other event outside the control of the Company.
1.10 “GST” means goods and services tax at the rate prevailing from time to time pursuant to the Goods and Services Tax Act 1985.
1.11 “website” means Play ‘N’ Learn’s website (www.playnlearn.co.nz).
1.12 “working day” means a day that is not a Saturday, Sunday, or public holiday in Wellington, New Zealand.
2.1 The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for or accepts Delivery of the Goods.
2.2 In the event of any inconsistency between the terms and conditions of this Contract and any other prior document or schedule that the parties have entered into, the terms of this Contract shall prevail.
2.3 Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.
2.4 The Customer acknowledges that the supply of Goods on credit shall not take effect until the Customer has completed a credit application with Play ‘N’ Learn and it has been approved with a credit limit established for the account.
2.5 In the event that the supply of Goods requested exceeds the Customers credit limit and/or the account exceeds the payment terms, Play ‘N’
Learn reserves the right to refuse Delivery.
2.6 Where Play ‘N’ Learn gives any advice, recommendation, information, assistance or service provided by Play ‘N’ Learn in relation to Goods and/or Services supplied such is given in good faith to the Customer, or the Customer’s agent and is based on Play ‘N’ Learn’s own knowledge and experience and shall be accepted without liability on the part of Play ‘N’ Learn. Where such advice or recommendations are not acted upon then Play ‘N’ Learn shall require the Customer or their agent to authorise commencement of the Services in writing. Play ‘N’ Learn shall not be liable in any way whatsoever for any damages or losses that occur after any subsequent commencement of the Services.
2.7 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 226 of the Contract and Commercial Law Act 2017 or any other applicable provisions of that Act or any Regulations referred to in that Act.
3. Errors and Omissions
3.1 The Customer acknowledges and accepts that Play ‘N’ Learn shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
(a) resulting from an inadvertent mistake made by Play ‘N’ Learn in the formation and/or administration of this Contract; and/or
(b) contained in/omitted from any literature (hard copy and/or electronic) supplied by Play ‘N’ Learn in respect of the Services.
3.2 In the event such an error and/or omission occurs in accordance with clause 3.1, and is not attributable to the negligence and/or willful misconduct of Play ‘N’ Learn, the Customer shall not be entitled to treat this Contract as repudiated nor render it invalid.
4. Change in Control
4.1 The Customer shall give Play ‘N’ Learn not less than fourteen (14) days prior written notice of any proposed change of ownership or control of the Customer and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s name, address and contact phone or fax number/s, change of trustees or business practice). The Customer shall be liable for any loss incurred by Play ‘N’ Learn as a result of the Customer’s failure to comply with this clause.
5. On-Line Ordering
5.1 The Customer acknowledges and agrees that:
(a) Play ‘N’ Learn does not guarantee the website’s performance; and
(b) display on the website does not guarantee the availability of any particular Goods; therefore, all orders placed through the website shall be subject to confirmation of acceptance by Play ‘N’ Learn; and
(c) on-line ordering may be unavailable from time to time for regularly scheduled maintenance and/or upgrades; and
(d) there are inherent hazards in electronic distribution, and as such Play ‘N’ Learn cannot warrant against delays or errors in transmitting data between the Customer and Play ‘N’ Learn including orders, and you agree that to the maximum extent permitted by law, Play ‘N’ Learn will not be liable for any losses which the Customer suffers as a result of online-ordering not being available or for delays or errors in transmitting orders; and
(e) when making a transaction through the website, the Customer’s information will pass through a secure server using SSL (secure sockets layer) encryption technology or any other similar technology as disclosed by Play ‘N’ Learn and/or displayed on the website. The encryption process ensures that the Customer’s information cannot be read by or altered by outside influences; and
(f) if the Customer is not the cardholder for any credit card being used to pay for the Goods, Play ‘N’ Learn shall be entitled to reasonably assume that the Customer has received permission from the cardholder for use of the credit card for the transaction.
5.2 Play ‘N’ Learn reserves the right to terminate the Customer’s order if it learns that you have provided false or misleading information,
interfered with other users or the administration of Play ‘N’ Learn’s business, or violated these terms and conditions.
6. Price and Payment
6.1 At Play ‘N’ Learn’s sole discretion the Price shall be either:
(a) as indicated on any invoice provided by Play ‘N’ Learn to the Customer; or
(b) the Price as at the date of Delivery of the Goods according to Play ‘N’ Learn’s current price list; or
(c) Play ‘N’ Learn’s quoted price (subject to clause 6.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
6.2 Play ‘N’ Learn reserves the right to change the Price:
(a) if a variation to the Goods which are to be supplied is requested; or
(b) if a variation to the Services originally scheduled (including any applicable plans or specifications) is requested; or
(c) where additional Services are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, limitations to accessing the site, poor weather conditions, transport delays, perquisite work by third party not completed, safety considerations, hard rock barriers below the surface, iron reinforcing rods in concrete, or hidden pipes and wiring in walls etc.) which are only discovered on commencement of the works; or
(d) as a result of fluctuations in currency exchange rates or increases to Play ‘N’ Learn in the cost of labour or materials which are beyond Play ‘N’ Learn’s control.
6.3 Variations will be charged for on the basis of Play ‘N’ Learn’s quotation, and will be detailed in writing, and shown as variations on Play ‘N’ Learn’s invoice. The Customer shall be required to respond to any variation submitted by Play ‘N’ Learn within ten (10) working days. Failure to do so will entitle Play ‘N’ Learn to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion.
6.4 At Play ‘N’ Learn’s sole discretion a non-refundable deposit may be required.
6.5 Time for payment for the Goods being of the essence, the Price will be payable by the Customer on the date/s determined by Play ‘N’ Learn, which may be:
(a) on or before Delivery of the Goods;
(b) on completion of the Services;
(c) by way of instalments/progress payments in accordance with Play ‘N’ Learn’s payment schedule;
(d) for certain approved Customers, due twenty (20) days following the end of the month in which the invoice or a statement is sent to the Customer’s address (including the Customer’s email address) or address for notices;
(e) the date specified on any invoice or other form as being the date for payment; or
(f) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Customer by Play ‘N’
6.6 Payment may be made by electronic/on-line banking, credit card (a surcharge per transaction may apply), or by any other method as agreed to between the Customer and Play ‘N’ Learn.
6.7 Play ‘N’ Learn may in its discretion allocate any payment received from the Customer towards any invoice that Play ‘N’ Learn determines and may do so at the time of receipt or at any time afterwards. On any default by the Customer Play ‘N’ Learn may re-allocate any payments previously received and allocated. In the absence of any payment allocation by Play ‘N’ Learn, payment will be deemed to be allocated in such manner as preserves the maximum value of Play ‘N’ Learn’s Purchase Money Security Interest (as defined in the PPSA) in the Goods.
6.8 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 Play ‘N’ Learn nor to withhold payment of any invoice because part of that invoice is in dispute.
6.9 Where there is a Dispute, the Customer may only retain a portion of the balance that relates to the portion of the Goods or Services in Dispute, but not exceeding of 2.5% of the Contract Price. All money outstanding must be paid within 7 days after resolution of the Dispute
6.10 Unless otherwise stated the Price does not include GST. In addition to the Price, the Customer must pay to Play ‘N’ Learn an amount equal to any GST Play ‘N’ Learn must pay for any supply by Play ‘N’ Learn under this or any other contract for the sale of the Goods. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition, the Customer must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
6.11 Delay in payment of the balance incurs interest at 10% per annum calculated daily by reference to amounts outstanding and compounding daily.
7. Provision of the Services
7.1 Subject to clause 7.2 it is Play ‘N” Learn’s responsibility to ensure that the Services start as soon as it is reasonably possible.
7.2 The Services’ commencement date will be put back and the completion date extended by whatever time is reasonable in the event that Play ‘N’ Learn claims an extension of time (by giving the Customer written notice) where completion is delayed by an event beyond Play ‘N’ Learns control, including but not limited to any failure by the Customer to:
(a) make a selection; or
(b) have the site ready for the Services; or
(c) notify Play ‘N’ Learn that the site is ready.
7.3 Delivery of the Goods is taken to occur at the time that:
(a) the Customer or the Customer’s nominated carrier takes possession of the Goods at Play ‘N’ Learn’s address; or
(b) Play ‘N’ Learn (or Play ‘N’ Learn’s nominated carrier) delivers the Goods to the Customer’s nominated address even if the Customer is not present at the address.
7.4 At Play ‘N’ Learn’s sole discretion the cost of Delivery is either included in the Price or is in addition to the Price.
7.5 Play ‘N’ Learn may deliver the Goods in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions. Staged delivery/installation is at extra cost to the Customer.
7.6 Any time specified by Play ‘N’ Learn for Delivery of the Goods is an estimate only. Play ‘N’ Learn will not be liable for any loss or damage incurred by the Customer as a result of Delivery being late. The parties agree that they shall make every endeavour to enable the Goods to be delivered at the time and place as was arranged between both parties. In the event that Play ‘N’ Learn is unable to supply the Goods as agreed solely due to any action or inaction of the Customer, then Play ‘N’ Learn shall be entitled to charge a reasonable fee for redelivery and/or storage.
8. Export Prohibition
8.1 The Goods provided pursuant to these terms and conditions of trade are sold for use in New Zealand only and are not to be exported elsewhere, directly or indirectly, without the prior agreement of Play ‘N’ Learn.
8.2 In the event that Play ‘N’ Learn consents to the export of the Goods, the Customer shall be responsible for all costs and compliance with any export regulations in force within the country for which the Goods are destined.
9.1 Risk of damage to or loss of the Goods passes to the Customer on Delivery. The Customer must insure the Goods on or before Delivery.
9.2 If any of the Goods are damaged or destroyed following Delivery but prior to ownership passing to the Customer, Play ‘N’ Learn is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Play ‘N’ Learn is sufficient evidence of Play ‘N’ Learn’s rights to receive the insurance proceeds without the need for any person dealing with Play ‘N’ Learn to make further enquiries.
9.3 If the Customer requests Play ‘N’ Learn to leave Goods outside Play ‘N’ Learn’s premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Customer’s sole risk.
9.4 Where Play ‘N’ Learn is to both supply and install Goods then Play ‘N’ Learn shall maintain a contract works insurance policy until the Services are completed. Upon completion of the Services all risk for the Services shall immediately pass to the Customer.
9.5 The Customer warrants that any structures to which the Goods are to be affixed are able to withstand the installation thereof and that any connections are of suitable capacity to handle the Goods once installed. If for any reason (including the discovery of asbestos etc) that Play ‘N’ Learn, or Play ‘N’ Learn’s employees, reasonably form the opinion that the Customer’s premises is not safe for the Services to proceed then Play ‘N’ Learn shall be entitled to delay the provision of the Services (in accordance with the provisions of clause 7.2 above) until Play ‘N’ Learn is satisfied that it is safe for the installation to proceed.
9.6 In the event that the Customer provides Play ‘N’ Learn with any information and/or measurements relating to the supply of the Goods, Play ‘N’ Learn shall be entitled to rely on the accuracy of any such information provided by the Customer. The Customer acknowledges and agrees that in the event that any of this information provided by the Customer is inaccurate, Play ‘N’ Learn accepts no responsibility for any loss, damages, or costs however resulting from the supply of inaccurate measurements or other information.
9.7 The Customer acknowledges and accepts that all literature, samples, specifications, dimensions and weights are approximate only and the data and descriptions contained in catalogues and other advertising material, while being as accurate as possible, may not necessarily be identical with the Goods and Services that Play ‘N’ Learn supplies, and Play ‘N’ Learn reserves the right to supply Goods that have minor modifications in specifications as Play ‘N’ Learn sees fit.
10.1 The Customer shall ensure that Play ‘N’ Learn has clear and free access to the site at all times to enable them to undertake the Services and/or deliver the Goods. Play ‘N’ Learn shall not be liable for any loss or damage to the site (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of Play ‘N’ Learn.
11. Underground Locations
11.1 Prior to Play ‘N’ Learn commencing any work the Customer must advise Play ‘N’ Learn of the precise location of all underground services on the site and clearly mark the same. The underground mains and services the Customer must identify include, but are not limited to, electrical services, gas services, sewer and wastewater services, pumping services, sewer and wastewater connections, sewer and wastewater sludge mains, water mains, irrigation pipes, telephone cables, fibre optic cables, oil pumping mains, and any other services that may be on site.
11.2 Whilst Play ‘N’ Learn will take all care to avoid damage to any underground services the Customer agrees to indemnify Play ‘N’ Learn in respect of all and any liability for claims, loss, damage, costs and fines as a result of damage to services not precisely located and notified as per clause 11.1.
12. Compliance with Laws
12.1 The Customer and Play ‘N’ Learn shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Services.
12.2 The Customer shall obtain (at the expense of the Customer) all licenses and approvals that may be required for the Services.
12.3 The Customer agrees that the Customer’s site will comply with any WorkSafe guidelines relating to building/construction sites and any other relevant safety standards or legislation.
12.4 Notwithstanding clause 12.1 and pursuant to the Health & Safety at Work Act 2015 (the “HSW Act”) Play ‘N’ Learn agrees at all times to
comply with its obligations under sections 28 and 34 of the HSW Act.
13.1 Play ‘N’ Learn and the Customer agree that ownership of the Goods shall not pass until:
(a) the Customer has paid Play ‘N’ Learn all amounts owing to Play ‘N’ Learn; and
(b) the Customer has met all of its other obligations to Play ‘N’ Learn (whether under the Contract or otherwise).
13.2 Receipt by Play ‘N’ Learn 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.
13.3 It is further agreed that until ownership of the Goods passes to the Customer in accordance with clause 13.1:
(a) the Customer is only a bailee of the Goods and must return the Goods to Play ‘N’ Learn on request;
(b) the Customer holds the benefit of the Customer’s insurance of the Goods on trust for Play ‘N’ Learn and must pay to Play ‘N’ Learn the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed;
(c) the Customer must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Customer sells, disposes or parts with possession of the Goods then the Customer must hold the proceeds of any such act on trust for Play ‘N’ Learn and must pay or deliver the proceeds to Play ‘N’ Learn on demand;
(d) the Customer should not convert or process the Goods or intermix them with other goods but if the Customer does so then the Customer holds the resulting product on trust for the benefit of Play ‘N’ Learn and must sell, dispose of or return the resulting product to Play ‘N’ Learn as it so directs;
(e) the Customer irrevocably authorises Play ‘N’ Learn to enter any premises where Play ‘N’ Learn believes the Goods are kept and recover possession of the Goods;
(f) Play ‘N’ Learn may recover possession of any Goods in transit whether or not Delivery has occurred;
(g) the Customer shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of Play ‘N’ Learn;
(h) Play ‘N’ Learn may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Customer.
14. Personal Property Securities Act 1999 (“PPSA”)
14.1 Upon assenting to these terms and conditions in writing the Customer acknowledges and agrees that:
(a) these terms and conditions constitute a security agreement for the purposes of the PPSA; and
(b) a security interest is taken in all Goods and/or collateral (account) – being a monetary obligation of the Customer to Play ‘N’ Learn for Services – that have previously been supplied and that will be supplied in the future by Play ‘N’ Learn to the Customer.
14.2 The Customer undertakes to:
(a) sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which Play ‘N’ Learn may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register (“PPSR”);
(b) indemnify, and upon demand reimburse, Play ‘N’ Learn for all expenses incurred in registering a financing statement or financing change statement on the PPSR or releasing any Goods charged thereby;
(c) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods and/or collateral (account) in favour of a third party without the prior written consent of Play ‘N’ Learn; and
(d) immediately advise Play ‘N’ Learn of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
14.3 Play ‘N’ Learn and the Customer agree that nothing in sections 114(1)(a), 116, 117(1)(c), 119, 120(2), 121, 125, 126, 127, 129 and 131 to 134 (inclusive) of the PPSA shall apply to these terms and conditions.
14.4 The Customer waives its rights as a debtor under sections 116, 120, 121, 125, 126, 127, 129 and 131 of the PPSA.
14.5 Unless otherwise agreed to in writing by Play ‘N’ Learn, the Customer waives its right to receive a verification statement in accordance with section 148 of the PPSA.
14.6 The Customer shall unconditionally ratify any actions taken by Play ‘N’ Learn under clauses 14.1 to 14.5.
14.7 Subject to any express provisions to the contrary (including those contained in this clause 14), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
15. Security and Charge
15.1 In consideration of Play ‘N’ Learn agreeing to supply the Goods, the Customer charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Customer either now or in the future, to secure the performance by the Customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
15.2 The Customer indemnifies Play ‘N’ Learn from and against all Play ‘N’ Learn’s costs and disbursements including legal costs on a solicitor
and own client basis incurred in exercising Play ‘N’ Learn’s rights under this clause.
15.3 The Customer irrevocably appoints Play ‘N’ Learn and each director of Play ‘N’ Learn as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 15 including, but not limited to, signing any document on the Customer’s behalf.
16.1 The Customer shall inspect the Goods on Delivery and shall within seven (7) days of Delivery (time being of the essence) notify Play ‘N’ Learn of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer shall afford Play ‘N’ Learn 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 Play ‘N’ Learn has agreed in writing that the Customer is entitled to reject, Play ‘N’ Learn’s liability is limited to either (at Play ‘N’ Learn’s discretion) replacing the Goods or repairing the Goods.
16.2 Goods will not be accepted for return other than in accordance with 16.1 above, and provided that:
(a) Play ‘N’ Learn 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 the Delivery date; and
(c) Play ‘N’ Learn will not be liable for Goods which have not been stored or used in a proper manner; and
(d) 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.
16.3 Play ‘N’ Learn may (in its discretion) accept the return of Goods for credit but this may incur a handling fee of twenty percent (20%) of the value of the returned Goods plus any freight.
16.4 Subject to clause 16.1, non-stocklist items or Goods made to the Customer’s specifications are not acceptable for credit or return.
17.1 Subject to the conditions of warranty set out in clause 17.2 Play ‘N’ Learn warrants that if any defect in any workmanship of Play ‘N’ Learn becomes apparent and is reported to Play ‘N’ Learn within twelve (12) months of the date of Delivery (time being of the essence) then Play ‘N’ Learn will either (at Play ‘N’ Learn’s sole discretion) replace or remedy the workmanship.
17.2 The conditions applicable to the warranty given by clause 17.1 are:
(a) the warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
(i) failure on the part of the Customer to properly maintain any Goods; or
(ii) failure on the part of the Customer to follow any instructions or guidelines provided by Play ‘N’ Learn; or
(iii) any use of any Goods otherwise than for any application specified on a quote or order form; or
(iv) the continued use of any Goods after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or
(v) fair wear and tear, any accident or act of God.
(b) the warranty shall cease and Play ‘N’ Learn shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without Play ‘N’ Learn’s consent.
(c) in respect of all claims Play ‘N’ Learn shall not be liable to compensate the Customer for any delay in either replacing or remedying the workmanship or in properly assessing the Customer’s claim.
17.3 For Goods not manufactured by Play ‘N’ Learn, the warranty shall be the current warranty provided by the manufacturer of the Goods. Play ‘N’ Learn shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Goods.
17.4 To extend permitted by statute, no warranty is given by Play ‘N’ Learn as to the quality or suitability of the Goods for any purpose and any implied warranty, is expressly excluded. Play ‘N’ Learn shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Goods.
18. Consumer Guarantees Act 1993
18.1 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 Play ‘N’ Learn to the Customer.
19. Intellectual Property
19.1 Where Play ‘N’ Learn has designed, drawn or developed Goods for the Customer, then the copyright in any designs and drawings and documents shall remain the property of Play ‘N’ Learn. Under no circumstances may such designs, drawings and documents be used without the express written approval of Play ‘N’ Learn.
19.2 The Customer warrants that all designs, specifications or instructions given to Play ‘N’ Learn will not cause Play ‘N’ Learn to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer indemnifies Play ‘N’ Learn against any action taken by a third party against Play ‘N’ Learn in respect of any such infringement.
19.3 The Customer agrees that Play ‘N’ Learn may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which Play ‘N’ Learn has created for the Customer.
19.4 Play ‘N’ Learn owns and has copyright in all designs, specifications, documents, and software produced by Play ‘N’ Learn in connection with the Goods provided pursuant to these terms and conditions of trade, and the Customer may use the Goods only if paid for in full, and for the purpose for which they were intended and supplied by Play ‘N’ Learn.
20. Default and Consequences of Default
20.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at Play ‘N’ Learn’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
20.2 If the Customer owes Play ‘N’ Learn any money the Customer shall indemnify Play ‘N’ Learn from and against all costs and disbursements incurred by Play ‘N’ Learn in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Play ‘N’ Learn’s collection agency costs, and bank dishonour fees).
20.3 Further to any other rights or remedies Play ‘N’ Learn may have under this Contract, if a Customer has made payment to Play ‘N’ Learn, and the transaction is subsequently reversed, the Customer shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by Play ‘N’ Learn under this clause 20 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Customer’s obligations under this Contract.
20.4 Without prejudice to Play ‘N’ Learn’s other remedies at law Play ‘N’ Learn shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to Play ‘N’ Learn shall, whether or not due for payment, become immediately payable if:
(a) any money payable to Play ‘N’ Learn becomes overdue, or in Play ‘N’ Learn’s opinion the Customer will be unable to make a payment when it falls due;
(b) the Customer has exceeded any applicable credit limit provided by Play ‘N’ Learn;
(c) 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
(d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
21.1 Without prejudice to any other remedies Play ‘N’ Learn may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions Play ‘N’ Learn may suspend or terminate the supply of Goods to the Customer. Play ‘N’ Learn will not be liable to the Customer for any loss or damage the Customer suffers because Play ‘N’ Learn has exercised its rights under this clause.
21.2 Play ‘N’ Learn may cancel any contract to which these terms and conditions apply or cancel Delivery of Goods at any time before the Goods are delivered by giving written notice to the Customer. On giving such notice Play ‘N’ Learn shall repay to the Customer any money paid by the Customer for the Goods. Play ‘N’ Learn shall not be liable for any loss or damage whatsoever arising from such cancellation.
21.3 In the event that the Customer cancels Delivery of Goods the Customer shall be liable for any and all loss incurred (whether direct or indirect) by Play ‘N’ Learn as a direct result of the cancellation (including, but not limited to, any loss of profits).
21.4 Cancellation of orders for Goods made to the Customer’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
22.1 Play ‘N’ Learn acknowledges its obligation in relation to the handling, use, disclosure and processing of Personal Information pursuant to the Privacy Act 1993 (“Privacy Act”). Play ‘N’ Learn acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Customer’s Personal Information, held by Play ‘N’ Learn that may result in serious harm to the Customer, Play ‘N’ Learn will notify the Customer in accordance with the Privacy Act. Any release of such personal information must be in accordance with the Privacy Act and the GDPR (where relevant) and must be approved by the Customer by written consent, unless subject to an operation of law.
22.2 Notwithstanding clause 22.1, privacy limitations will extend to Play ‘N’ Learn in respect of Cookies where transactions for purchases/orders transpire directly from Play ‘N’ Learn’s website. Play ‘N’ Learn agrees to display reference to such Cookies and/or similar tracking technologies, such as pixels and web beacons (if applicable), such technology allows the collection of Personal Information such as the Customer’s:
(a) IP address, browser, email client type and other similar details;
(b) tracking website usage and traffic; and
(c) reports are available to Play ‘N’ Learn when Play ‘N’ Learn sends an email to the Customer, so Play ‘N’ Learn may collect and review that information (“collectively Personal Information”)
In order to enable / disable the collection of Personal Information by way of Cookies, the Customer shall have the right to enable / disable the Cookies first by selecting the option to enable / disable, provided on the website prior to proceeding with a purchase/order via Play ‘N’ Learn’s website.
22.3 The Customer authorises Play ‘N’ Learn or Play ‘N’ Learn’s agent to:
(a) access, collect, retain and use any information about the Customer;
(i) (including, name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history or any overdue fines balance information held by the Ministry of Justice) for the purpose of assessing the Customer’s creditworthiness; or
(ii) for the purpose of marketing products and services to the Customer.
(b) disclose information about the Customer, whether collected by Play ‘N’ Learn from the Customer directly or obtained by Play ‘N’ Learn 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.
22.4 Where the Customer is an individual the authorities under clause 22.3 are authorities or consents for the purposes of the Privacy Act.
22.5 The Customer shall have the right to request Play ‘N’ Learn for a copy of the Personal Information about the Customer retained by Play ‘N’
Learn and the right to request Play ‘N’ Learn to correct any incorrect Personal Information about the Customer held by Play ‘N’ Learn.
23. Service of Notices
23.1 Any written notice given under this Contract shall be deemed to have been given and received:
(a) by handing the notice to the other party, in person;
(b) by leaving it at the address of the other party as stated in this Contract;
(c) by sending it by registered post to the address of the other party as stated in this Contract;
(d) if sent by facsimile transmission to the fax number of the other party as stated in this Contract (if any), on receipt of confirmation of the transmission;
(e) if sent by email to the other party’s last known email address.
23.2 Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.
24.1 If the Customer at any time upon or subsequent to entering in to the Contract is acting in the capacity of trustee of any trust (“Trust”) then
whether or not Play ‘N’ Learn may have notice of the Trust, the Customer covenants with Play ‘N’ Learn as follows:
(a) the Contract extends to all rights of indemnity which the Customer now or subsequently may have against the Trust and the trust fund;
(b) the Customer has full and complete power and authority under the Trust to enter into the Contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Customer against the Trust or the trust fund. The Customer will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity;
(c) the Customer will not without the consent in writing of Play ‘N’ Learn (Play ‘N’ Learn will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events:
(i) the removal, replacement or retirement of the Customer as trustee of the Trust;
(ii) any alteration to or variation of the terms of the Trust;
(iii) any advancement or distribution of capital of the Trust; or
(iv) any resettlement of the trust property.
25. Dispute Resolution
25.1 If the Customer has any dispute whatsoever with Play ‘N’ Learn in connection with a Contract it will promptly:
(a) give full written particulars of the dispute to Play ‘N’ Learn; and
(b) communicate, and if practicable meet, with Play ‘N’ Learn in good faith to try and resolve the dispute.
25.2 If the dispute is not resolved within [twenty (20)] working days of written particulars being given (or any longer period agreed to by the parties) [the dispute will be referred to mediation] [Play ‘N’ Learn or the Customer may commence legal proceedings].
26.1 The Consumer Guarantees Act 1993, the Fair Trading Act 1986, the Sale of Goods Act 1908, the Contract and Commercial Law Act 2017 and other statutes may imply warranties or conditions or impose obligations upon us which cannot by law (or which can only to a limited extent by law) be excluded or modified. In respect of any such implied warranties, conditions or terms imposed on us, the Company’s liability shall, where it is allowed, be excluded or if not able to be excluded only apply to the minimum extent required by the relevant statute.
26.2 Except as otherwise provided by clause 26.1 the Play ‘N’ Learn shall not be liable for any loss or damage of any kind whatsoever, arising from the supply of Goods by Play ‘N’ Learn to the Customer, including consequential loss whether suffered or incurred by the Customer or another person and whether in contract or tort (including negligence) or otherwise and irrespective of whether such loss or damage arises directly or indirectly from Goods and/or provided by Play ‘N’ Learn to the Customer; and
26.3 The Customer indemnifies Play ‘N’ Learn against all claims and loss of any kind whatsoever however caused or arising and without limiting the generality of the foregoing of this clause whether caused or arising as a result of the negligence of the Customer or otherwise, brought by any person in connection with any matter, act, omission, or error by the Customer its agents or employees in connection with the Goods and/or Services.
26.4 Without limiting clauses 26.1 to 26.3 (inclusive), in the event that Play ‘N’ Learn is found to be liable to the Customer under a statutory or implied warranty for any reason, the extent of Play ‘N’ Learn’s liability shall be limited to the replacement of the Goods or resupply of the Services.
26.5 Play ‘N’ Learn gives no warranty, condition or representation express or implied as to the capacity or fitness of the Goods for any particular purpose.
26.6 If the Goods are damaged or destroyed due to an event of Force Majeure the Customer agrees that Play ‘N’ Learn is not liable for any repair, replacement or delivery costs of the Goods or for any loss or damage the Customer incurs as a result whether caused directly or indirectly by the Force Majeure event.
27.1 The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. 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.
27.2 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.
27.3 Play ‘N’ Learn shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by Play ‘N’ Learn of these terms and conditions (alternatively Play ‘N’ Learn’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
27.4 Play ‘N’ Learn may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Customer’s consent.
27.5 The Customer cannot licence, transfer or assign all or any part of its obligations under this Contract without the written approval of Play ‘N’ Learn.
27.6 Play ‘N’ Learn may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this Contract by so doing. Furthermore, the Customer agrees and understands that they have no authority to give any instruction to any of Play ‘N’ Learn’s sub-contractors without the authority of Play ‘N’ Learn.
27.7 The Customer agrees that Play ‘N’ Learn may amend their general terms and conditions for subsequent future contracts with the Customer by disclosing such to the Customer in writing. These changes shall be deemed to take effect from the date on which the Customer accepts such changes, or otherwise at such time as the Customer makes a further request for Play ‘N’ Learn to provide Goods to the Customer.
27.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
27.9 Both parties warrant that they have the power to enter into this Contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this Contract creates binding and valid legal obligations on them.