Third Party Seller (TPS) Product Terms and Conditions

1.Agreement

1.1 Mighty Ape Limited ("We", "Our" or "Us") permits certain third party sellers (each, a "TP Seller") to advertise and sell their goods and services on the Website (each, a "TPS Product"). These Terms and Conditions apply to any purchase from a TP Seller.

1.2 In these Terms and Conditions, the details of a TP Seller are identified within the product detail page relating to a TPS Product sold by the TP Seller and You or Your means the person who accepts these Terms and Conditions, by using the Website and associated software, networks and processes.

1.3 These Terms and Conditions govern the access and use of the Website by You and any TP Seller. By registering for or browsing the Website, or placing an Order, You agree to be bound by these Terms and Conditions as set out below, which constitutes a legally binding Agreement between Us and You. Please read these carefully. If You are entering into this Agreement on behalf of a corporate entity, You represent and warrant to Us that You have legal authority to bind that entity.

1.4 You acknowledge and agree that You are also bound by the terms and conditions within the General Terms which apply at all times to Your use of the Website and any related dealings between Us, You and any TP Seller. For the avoidance of doubt, the following articles within the General Terms apply to You under this Agreement (with all necessary modifications and amendments (where applicable) to apply in connection with the use of the Website and/or the sale of any TPS Products):

Returns Policy;

Promotional Code Terms & Conditions;

1. 1. 1. Returns Policy;

      2. Promotional Code Terms & Conditions;

      3. Returns Policy: Pop! Vinyl;

      4. Terms of Supply of Products;

      5. Events Code of Conduct;

      6. Privacy Policy; 

      7. Cookies Policy; and

      8. Any other policies which We publish from time to time (whether expressly listed on the Website or not),

provided that in the event of any conflict or inconsistency between these Terms and Conditions and any of the articles listed above, for the purposes of interpretation, the provisions of these Terms and Conditions shall take priority with the other relevant article(s) to be disregarded, to the extent that it conflicts with, or is inconsistent with these Terms and Conditions.

1.5 Unless the context otherwise requires, capitalised terms used but not defined in these Terms and Conditions have the meaning given to them in the General Terms.

2. TP Sellers

2.1 We allow TP Sellers to list and sell their TPS Products on the Website but We are neither the buyer nor the seller of TPS Products. The contract formed at the completion of a sale for TPS Products is solely between You and the TP Seller. We are not a party to this contract nor do We assume any liability or responsibility arising out of or in connection with it. We provide no warranty in respect of TPS Products. The TP Seller is responsible for the sale of their TPS Products and for dealing with any claims or any other issue arising out of or in connection with the TPS Products and the contract between You and the TP Seller.

3. Legal Capacity

3.1 You may not use our Website or any services we provide without accepting our Terms and Conditions, and regardless may not use or access our Website or any services we provide if you are (a) under 13 years of age; (b) over 13 years of age but under 18 years of age and do not have your parent's consent for such usage or access; or (c) are in a country to which we do not provide our products or services.

4. Marketplace Use

4.1 We might provide links to TP Sellers’ websites or the websites of their affiliated companies. We are not responsible for examining or evaluating these websites, and We do not warrant or accept any responsibility or liability for the actions, offerings or non-performance of any of the TP Sellers or the content of their websites. We are not responsible for the content or privacy practices associated with linked websites and before purchasing a TPS Product You should carefully review the TP Seller’s terms and conditions and their privacy statements. If you have any concerns with a TPS's website, terms and conditions or privacy statement, please let us know in case we need to take action to suspend access to their accounts.

4.2 You must ensure that Your access to, or use of the Website is not illegal or prohibited by laws which apply to You.

4.3 You must take Your own precautions to ensure that Your process for accessing the Website does not expose You to risk of viruses, malicious computer code or other forms of interference which may damage Your computer system. We take no responsibility for any such damage which may arise in connection with Your use of the Website.

5. Pricing

5.1 Prices displayed on the Website are subject to change without notice.

6. Product Specifications

6.1 Features and specifications of Products described or depicted on the Website are provided by the TP Seller of the product(s) and are subject to change without notice.

6.2 All weights and dimensions of Products described on the Website are provided by the TP Seller of the product(s) and are approximate. All screens are measured diagonally and all screen images contained on the Website are simulated unless otherwise indicated.

6.3 To the extent permitted by law, We make no warranty or representation regarding the standard of any goods or services to be supplied by a TP Seller. This does not affect any rights you may have under the Consumer Guarantees Act 1993 or the Fair Trading Act 1986.

7. Delivery of TPS Products

7.1 TPS Products are delivered by the TP Seller to You as part of the contract between You and the TP Seller. TP Sellers reserve the right to not deliver TPS Products to selected locations. Unsuccessful deliveries due to an incorrect address or not collecting the item from the post office may result in additional restocking or redelivery fees as per the TP Seller's terms and conditions

7.2 We might on occasions deliver TPS Products. If so:

a) We will try to ensure that the TPS Products are delivered in a prompt and timely manner. However, from time to time, it is possible that shipping and other factors outside of Our control may result in delays. We do not accept any liability for loss or damage (whether directly or indirectly) suffered by anyone as a result of any such delays;

b) TPS Products will not be delivered to PO Box addresses;

c) If You give written authority for TPS Products to be delivered without a signature, any and all included insurance cover will be voided;

d) the couriers or postal services nominated by Us will deliver TPS Products during local business hours (9am to 5pm, Monday to Friday);

e) We are not responsible for the delivery times of the TPS Products. Once the TPS Products have been dispatched, it is Your responsibility to liaise with the courier nominated by Us (as notified to You) in relation to date and time of delivery. We shall not be liable for any inaccuracy of information provided to You relating to the date and time of delivery; and

f) We reserve the right to not deliver TPS Products to remote or rural locations.

8. Faulty or damaged goods

8.1 If Your TPS Products are defective or faulty or if the delivered item is not the TPS Product that was purchased, You should first contact the TP Seller through Your account. In the event the TP Seller does not resolve the issue to Your satisfaction within 5 Business Days, You may escalate to Us, and We will resolve the dispute in accordance with New Zealand Consumer Guarantees Act 1993. We are responsible for resolving all disputes and administering all refunds determined to be owed to customers (and are not otherwise resolved).

9. Our warranties

9.1 Unless otherwise expressly stated in these Terms and Conditions, We, provide the Website on an as-is basis only and exclude all warranties or conditions of any kind whether expressly or implied. In particular but without limitation, We do not warrant or represent that:

a) Our Website is fit for any purpose or will meet Your requirements or is provided to You without any errors or deficiencies or that it is in compliance with any quality levels, as the case may be;

b) Our Website will be available to You at any time or provided to You without disruption, interruption or delay;

c) Our Website does not infringe any copyright or violate any laws or regulations whether in the country You are a resident or elsewhere in the World;

d) Any information You obtain from Us or through Your use of Our Website will be suitable, accurate, complete or reliable; or

e) That any deficiencies in Our Website, including any defects in performance, operation or functionality will be fixed, corrected or otherwise remedied.

9.2 Documents or material (including any software or firmware updates) downloaded, installed or otherwise obtained through the use of Our Website are provided by Us “as is” and at Your own risk. We are not responsible for any damage to any mobile phone, software, computer system, or other device or device's software, or any loss of data that results from the download and/or use of any such documents or material.

9.3 You are entirely responsible for any breach of Your obligations under:

a) These Terms and Conditions; and/or

b) Any applicable law or regulation in any relevant jurisdictions, and 

in either case, You will also be responsible for the consequences of any such breach, including any loss or damage which You, Us or any TP Seller may incur or suffer as a result of such breach.

10. Exclusions and Limitations of our Liability

10.1 To the maximum extent permitted by applicable law and clause 10.3 below, We exclude:

a) the application of the Contract and Commercial Law Act 2017;

b) all conditions, warranties, representations or other terms (whether express or implied) which may apply to the Website or any Products supplied by Us (other than any specific warranties We give in Our Product Warranties and Refunds Policy from time to time); and

c) liability to any party (including but not limited to You or any TP Seller) for any loss or damage, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, even if foreseeable, arising under or in connection with:

i) use of, or inability to use, the Website;

ii) use of or reliance on any content displayed on the Website;

iii) business interruption or loss of profits, anticipated savings, sales, business, revenue, opportunity, goodwill or reputation;

iv) damage to or corruption/loss of data;

v) losses suffered as a result of any relationship or transaction between You and any other party or between any TP Seller and any other party;

vi) any changes, modifications, extensions or limitations (including any suspension of Your or any TP Seller's use of the Website or related Services), or any permanent or temporary cessation in the availability of the Website (or any part of it or any associated Services);

vii) loss or damage caused by a virus, distributed denial-of-service attack, or other technologically harmful material that may infect Your or any TP Seller's computer equipment, computer programs, data or other proprietary material due to Your or any TP Seller's use of the Website or to Your or any TP Seller's downloading of any content on it, or on any Website linked to it;

viii) the use of Your or any TP Seller's account data by any person other than yourself or any TP Seller through Your or any TP Seller's failure to adequately protect Your security details for accessing the Website; or

ix) any other indirect or consequential loss or damage whatsoever.

10.2 To the extent that We are in fact found to be liable to You or any TP Seller despite any clauses in these Terms and Conditions excluding such liability, Our maximum aggregate liability to You or any TP Seller is limited to the greater of:

a) an amount equal to four times the price or fee actually paid for the TPS Product that directly caused the relevant loss or liability; and

b) NZD $1,000 or AUD $1,000 (as applicable).

10.3 Nothing in this clause 10, or elsewhere in these Terms and Conditions excludes or limits Our liability for:

a) death or personal injury arising from any breach of Our obligations; or

b) Our fraud or fraudulent misrepresentation; or

c) liability or obligations under the Consumer Guarantees Act 1993, under Australian Consumer Law (ACL) in Schedule 2 of the Australian Competition and Consumer Act 2010 or for any other losses or damages to the extent which they may not be lawfully excluded or limited by applicable law, 

provided that if the applicable laws do not allow the exclusion of certain warranties, terms or conditions or the limitation or exclusion of liability for certain types of loss or damage, then the limitations and exclusions in these Terms and Conditions will be deemed to have been amended on that occasion to the extent necessary to ensure compliance with those applicable laws while still preserving to the maximum extent possible the original intent of the relevant provision, and Our liabilities and warranties will be limited to the maximum extent permitted by applicable law.

11. Intellectual Property

11.1 All intellectual property rights ("Intellectual Property") in any content on the Website, including images, pricing, artwork, its visual design, and the arrangement and display of any content on the Website ("Material") is owned by, or licensed to, KOGAN.COM HOLDINGS PTY LTD or the relevant third party product owner.

11.2 Unless expressly authorised under these Terms and Conditions or otherwise in writing, You may not reproduce, adapt, modify, display, extract or distribute any Material or any part of any Material. You also may not use any data mining or data extraction tools, systems or software to extract the Material for any purpose whatsoever or disassemble, reverse engineer or otherwise attempt to discover or access any source code or other information related to the Website.

11.3 If You post any information on the Website, such as a product review, You grant to Us an irrevocable, perpetual, non-exclusive, royalty-free, world-wide licence to use, copy, display and distribute that information for any purpose We decide.

12. Privacy 

12.1 We may disclose the data collected in Your Order to the TP Seller for the purposes of processing and fulfilling Your order (and that Your data will be subject to the privacy policy and practices of the TP Seller);

12.2 We may store, process, use and disclose data, other than credit card details, in order to provide You with marketing information from time to time, including regarding other Products, TPS Products or products sold by Kogan or Our other related bodies corporates that may be of interest to You; and

12.3 Your data will be handled in accordance with Our Privacy Policy and New Zealand privacy laws.

13. Suspension or Termination

13.1 We will determine, in Our sole discretion, whether there has been a breach of these Terms and Conditions. When a breach has occurred, We may take such action as We deem appropriate.

13.2 Failure to comply with these Terms and Conditions may result in Us taking all or any of the following actions:

a) Temporary or permanent withdrawal of Your right to use the Website;

b) Temporary or permanent removal of any posting or material uploaded by You to the Website;

c) Issue of a warning to You;

d) Legal proceedings against You for reimbursement of all costs on an indemnity basis (including, but not limited to, reasonable administrative and legal costs) resulting from the breach;

e) Further legal action against You; and/or

f) Disclosure of such information to law enforcement authorities as We reasonably feel is necessary,

 

but the potential responses are not limited to those described above, and We may take any other action We reasonably deem appropriate. We exclude liability for actions taken in response to breaches of these Terms and Conditions and/or the General Terms.

14. Miscellaneous

14.1 We are an online business and will primarily communicate with customers or other users of the Website via e-mail. It is the customer's and the relevant TP Seller's responsibility to ensure the correct contact details are entered and that the nominated e-mail address is regularly checked for correspondence.

14.2 We reserve the right to make changes and/or amendments to the Website and these Terms and Conditions at Our sole discretion without notice to You or any TP Seller. For the avoidance of doubt, unless We advise You otherwise, any such changes and/or amendments will operate prospectively from the time that the revised Terms and Conditions are published on the Website.

14.3 Each of the clauses in these Terms and Conditions documents operates separately. Any provision of these Terms and Conditions which is void or unenforceable may be severed from these Terms and Conditions without affecting the enforceability of other provisions.

14.4 Subject to the obligations expressed in Our Privacy Policy, We may assign, novate or transfer Our rights and obligations to another party at any time without Your consent. We will use all reasonable efforts to notify You in writing or by posting on the Website if this happens. You may only assign, novate or transfer Your rights or Your obligations to another person if We agree in writing to that assignment, novation or transfer.

14.5 You warrant that You have authority to bind any party or entity on whose behalf You purport to use the Website or purchase TPS Products.

14.6 You and We both agree that these Terms and Conditions are governed by the laws of New Zealand or Australia (as applicable), without regard to any conflict of laws provisions. You and We both submit to the exclusive jurisdiction of the courts of New Zealand or Australia (as applicable) to resolve any legal matter arising from these Terms and Conditions, their subject matter, and any related disputes or claims, but agree that either party will still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction as may reasonably be considered necessary in the circumstances.