Terms and Conditions of Sale
The supply of goods (“Goods”) and services (“Services”) Services by Moffat Limited (New Zealand Company No. 647673) (“Moffat”) to any person or entity (each a "Customer") is made on the following terms and conditions (the “Contract Terms”):
1. GENERAL
1.1 These Contract Terms include all those statutory rights conferred on the buyer that Moffat is not capable of excluding, restricting or modifying (“the buyer’s statutory rights”).
1.2 Unless agreed in writing by Moffat, these Contract Terms apply to the exclusion of all prior discussions, representations, understandings and arrangements, and all conditions and warranties (written or oral, express or implied) and other representations (contractual or otherwise), whether or not endorsed or delivered with or referred to in any order or other document delivered by the buyer to Moffat.
1.3 Unless otherwise agreed in writing by Moffat, the provision of engineers’ services to install, start up and/or commission any goods shall be the subject of a separate contract.
2. QUOTATIONS AND ORDERS
2.1 Unless previously withdrawn by Moffat at any time, a quotation is open for acceptance for a period of thirty (30) days from the date of the quotation after which time it will lapse.
2.2 All orders are subject to written acceptance by Moffat.
3. PRICE
3.1 Unless otherwise stated, all prices charged are ex works and insurance of ex works goods following collection from Moffat’s warehouse is the responsibility of the buyer.
3.2 All goods will incur a reasonable freight and packing charge. If requested, Moffat will provide an estimate of the charges prior to delivering the goods.
4. TERMS OF PAYMENT
4.1 Payment is to be made for goods sold by Moffat within Australia 30 days from the date of issue of Moffat’s invoice to the address specified on the invoice. If payment is required upon completion of installation, such payment shall be due on completion of Moffat’s obligations as provided in clause 6.
Unless agreed by Moffat in writing, payment is to be made on goods sold by Moffat outside Australia on a 30 day letter of credit.
4.2 Moffat reserves the right to request a valid credit card from the buyer prior to accepting any service repair request including any warranty or non-warranty repair.
4.3 Moffat reserves the right to impose on the buyer a minimum deposit to Moffat of 25% of the purchase price for goods that are not spare parts.
4.4 In the event of default by the buyer under clause 4.1, 4.2or 4.3, all debt recovery costs, including legal costs on a solicitor /own client basis and disbursements, and any mercantile agent costs charged to Moffat will be part of the indebtedness of the buyer to Moffat.
4.5 Without prejudice to any other remedy, Moffat may charge the buyer interest at the rate set under the Penalty Interest Rate Act 1983 (Vic) on any overdue amounts, calculated and compounded on a daily basis from the due date until the payment is made in full. The buyer acknowledges that any payments received by Moffat on account of any overdue amounts may be applied first to the interest that has accrued pursuant to this clause.
5. VARIATION OF TERMS OF PAYMENT
5.1 If Moffat, acting reasonably, decides that the credit worthiness of the buyer has become unsatisfactory, Moffat may on written notice to the buyer:
(a) vary the terms of payment, and may require payment in full and in cash, or the provision of security, for any amount unpaid; and
(b) stop any goods in transit until any requirements under this clause have been complied with.
6. COMPLETION AND DELIVERY
6.1 Moffat will endeavour to deliver or supply the goods or services or otherwise complete the contract within the time agreed or within a reasonable time (in the absence of agreement).
6.2 Moffat’s obligations to supply goods shall be deemed to be completed and the goods deemed to be delivered when:
(a) in the case of goods sold for delivery and installation – when the goods are assembled in position and connected to the power and other services specified;
(b) in the case of goods sold for delivery – when the goods reach the specified destination (unloading of goods shall be the buyer’s responsibility unless otherwise expressly agreed in writing);
(c) in the case of goods sold for delivery ex works – when the goods are delivered to the carrier.
6.3 Unless otherwise agreed, spare parts will be delivered by air freight at the buyer’s expense.
6.4 Subject to the buyer's statutory rights, Moffat shall not be liable for any loss or damage (whether direct or indirect) caused by any failure to deliver, supply or complete either in whole or in part where the failure is due to an event beyond the reasonable control of Moffat.
6.5 Either party may suspend its obligations (other than an obligation to pay money) under the contract where the failure is caused by force majeure, including any act or omission on the part of the other party, or by any act of God, war, lightning, fire, earthquake, storm, flood, explosion, any embargoes, restraint orders or restrictions imposed directly or indirectly by any government or governmental authority, agency or department, unavailability or delay in availability of equipment, materials or transport, labour dispute and any other case whether of the kind enumerated or otherwise which is not within the control of the party claiming the benefit of this clause. Where the force majeure event continues for more than 60 days either party may, by written notice to the other, terminate this contract.
7. WITHHOLDING SUPPLY AND DELIVERY BY INSTALMENTS
7.1 Moffat reserves the right to withhold supply to the buyer if the buyer is in breach of any agreement with Moffat.
7.2 Moffat reserves the right to deliver the goods by instalments and each instalment shall be deemed to be sold under a separate contract incorporating these Contract Terms. Failure of Moffat to deliver any instalment shall not entitle the buyer to cancel the balance of the contract. Exercise of these rights does not entitle the buyer to terminate any contract with Moffat or claim any loss or damage
8. INSTALLATION AND COMMISSIONING
8.1 Where Moffat is to install, start up or commission the goods, the buyer will provide suitable access to and possession of the premises where the goods are to be installed, started up and commissioned, and shall provide suitable facilities at the premises in order to receive the goods.
8.2 The buyer will bear the cost of:
(a) any work to be carried out by third parties including, without limitation, builders, masons, joiners, pipefitters and electricians;
(b) any alterations to existing equipment or premises for use with the goods; and
(c) all fuels, services and other facilities required for the installation starting up and commissioning of the goods.
9. TITLE AND RISK
9.1 The risk in the goods passes to the buyer:
(a) for goods that are collected by or on behalf of the buyer from Moffat’s warehouse, when the goods are loaded at Moffat's warehouse;
(b) for goods that are delivered by Moffat, when the goods are delivered to the buyer’s delivery address.
9.2 Moffat's rights under this clause 9 secure:
(a) Moffat's right to receive the price of all the goods sold under these Contract Terms; and
(b) all other amounts owing to Moffat under these Contract Terms or any other agreement between the buyer and Moffat.
9.3 All payments received from the buyer may be applied by Moffat to the buyer's indebtedness in the manner Moffat, in its absolute discretion, determines.
9.4 Until full payment in cleared funds is received by Moffat for all goods supplied by it to the buyer, as well as all other amounts owing to Moffat by the buyer under this or any other agreement:
(a) legal title and property in all goods supplied under these Contract Terms remain vested in Moffat and do not pass to the buyer;
(b) the buyer must store the goods separately and in such a manner and maintain any labelling and packaging of Moffat, so that the goods are clearly and readily identifiable as the property of Moffat;
(c) the buyer must not sell the goods except in the ordinary course of the buyer's business;
(d) the buyer holds and agrees to hold the proceeds of any sale, lease or other dealing with the goods for Moffat in a separate bank account with a bank which does not (and will not in the future) provide finance to the buyer;
(e) in addition to any rights Moffat may have under Chapter 4 of the PPS Act, Moffat may, at any time, demand the return of the goods and shall be entitled without notice to the buyer and without liability to the buyer, to enter any premises where it suspects the goods may be located in order to search for and remove the goods without committing a trespass, even though they may be attached or annexed to other goods or land not the property of Moffat, and for this purpose the buyer irrevocably licenses Moffat to enter such premises, undertakes that it will procure any necessary authority to enter from any relevant person and also indemnifies Moffat from and against all loss suffered or incurred by Moffat as a result of exercising its rights under this clause except to the extent that the Loss is caused directly by Moffat's gross negligence or fraud. If there is any inconsistency between Moffat's rights under this clause 9.4(e)and its rights under Chapter 4 of the PPS Act, this clause 9.4(e)prevails.
(f) the buyer acknowledges and warrants that Moffat has a security interest (for the purposes of the PPS Act) in the goods and any proceeds described in clause 9.4(d); and
(g) the security interest arising under this clause attaches to the goods when the buyer obtains possession of the goods and the parties confirm that they have not agreed that any security interest arising under this clause 9attaches at any later time.
9.5 The buyer warrants that it does not intend to use the goods predominantly for personal, domestic or household purposes.
9.6 The buyer must, at its own cost, insure and keep insured the goods against such risks as a prudent owner of the goods would insure at their full cost price, with a reputable insurance company.
10. PPS Act
10.1 Unless a contrary intention appears, words or expressions used in this clause 10that are defined in the PPS Act have the same meaning as given to them in the PPS Act.
10.2 If at any time Moffat determines that the supply of goods on these Contract Terms creates a security interest in its favour over any personal property, Moffat may apply for any registration, or give any notification, in connection with that security interest and the buyer must promptly, upon Moffat’s request, do anything (including, without limitation, signing and producing documents, getting documents completed or signed, obtaining consents and supplying information) to:
(a) provide more effective security over the relevant personal property;
(b) ensure that any such security interest in favour of Moffat:
(i) is at all times enforceable, perfected (including, where applicable, by control as well as by registration) and otherwise effective; and
(ii) ranks as a first priority security interest;
(c) enable Moffat to prepare and register a financing statement or a financing change statement or give any notification in connection with that security interest or under the PPS Act; and
(d) enable Moffat to exercise any of its rights or perform any of its obligations in connection with any such security interest or under the PPS Act.
10.3 All costs and expense arising as a result of actions taken by Moffat or the buyer pursuant to this clause 10will be for the account of the buyer. Within five days of a written request, the buyer must pay to Moffat any costs or expenses incurred or to be incurred in connection with this clause 10.
10.4 If Chapter 4 of the PPS Act would otherwise apply to the enforcement of the security interest created under this Contract, the buyer agrees that the following provisions of the PPS Act will not apply:
(b) section 121(4) (enforcement of liquid assets – notice to grantor);
(c) section 125 (obligation to dispose of or retain collateral);
(d) section 130 (notice of disposal), to the extent that it requires Moffat to give a notice to the buyer;
(e) paragraph 132(3)(d) (contents of statement of account after disposal);
(f) subsection 132(4) (statement of account if no disposal);
(g) section 142 (redemption of collateral); and
(h) section 143 (reinstatement of security agreement).
10.5 Moffat does not need to give the buyer any notice required under the PPS Act (including, without limitation, a notice of a verification statement under section 157 of the PPS Act) unless the requirement for the notice cannot be excluded.
10.6 Neither Moffat nor the buyer will disclose to a person or entity not a party to a contract between Moffat and the buyer for the supply of goods on these Contract Terms, information of the kind mentioned in section 275(1) of the PPS Act unless section 275(7) of the PPS Act applies or that information is publicly available.
11. CANCELLATION AND RETURNS
11.1 Credit for return of goods or cancellation of ordered goods is at the discretion of Moffat.
11.2 A fee of 25% will be charged for the cancellation of any order or the return of any goods. The fee will be based on the value of the order or the sale price of the goods as the case may be. The parties agree that the fee constitutes a genuine pre-estimate of Moffat's loss arising from the cancellation or return of goods.
11.3 Where the buyer delivers goods for return to Moffat and, if Moffat accepts the return of those goods, the buyer will be given credit to the value of the sale price of those goods less any applicable fees and charges only if the goods are returned with-in 30 days of invoice date.
11.4 The credit given for the return of any custom made goods will be reduced by the amount of Moffat’s expenses in delivering or installing those goods.
11.5 The credit given for the return of any spare parts will be reduced by a testing fee, in consideration that Moffat must test the spare parts to ensure that they are in satisfactory condition for resale. Moffat will provide the buyer an estimate of the testing fee prior to undertaking the testing.
12. TRADE IN EQUIPMENT
12.1 Where the buyer delivers goods to Moffat as a trade–in, the risk of any loss or damage to those goods remains with the buyer until those goods are accepted by Moffat.
12.2 The credit given by Moffat for any traded in goods will be based on the condition of those goods when delivered to Moffat. Title to traded–in goods shall pass to Moffat upon its acceptance of those goods.
13. CHANGEOVER GOODS
13.1 Moffat will invoice the buyer for any goods supplied on a changeover basis at sale prices at the time of dispatch which will be displayed on the Moffat website.
13.2 Upon delivery of the reconditioned or repaired goods to the buyer, the buyer must promptly return any goods supplied on a changeover basis by Moffat. Moffat may accept the return of those goods having regard to their condition. If Moffat accepts the return of those goods, Moffat shall give credit to the buyer for the sale price of those goods.
14. BUYER'S REQUIREMENTS
14.1 Prior to Moffat’s acceptance of any order, the buyer must inform Moffat of all its requirements including any statutory or regulatory requirements relating to the installation and end use of goods in the place of intended use. If the buyer fails to inform Moffat of such requirements, the buyer shall be responsible for, and shall indemnify Moffat against, any action, claim, demand, loss, damage, cost or expense associated with any failure to meet those requirements.
15. TESTING
15.1 Moffat may conduct tests on any installed or commissioned goods. The buyer shall supply any materials required for those tests or the commissioning of those goods. The buyer shall bear the costs of any additional tests required by it. The buyer must provide Moffat with a copy of any report obtained in relation to those additional tests.
15.2 Moffat may charge the buyer an engineering test fee where any goods returned for testing, subsequently pass all applicable tests. If requested, Moffat will provide an estimate of the fees likely to be incurred prior to undertaking the testing.
16. BUYER'S DEFAULT AND INDEMNITY
16.1 Without prejudice to any other remedy, if the buyer breaches any of its obligations under an agreement with Moffat, commits an act of bankruptcy, is unable to pay its debts when due or becomes insolvent (within the meaning of the Corporations Act 2001 (Cth)), has a liquidator or provisional liquidator appointed in respect of it, enters into a deed of company arrangement, makes any composition or arrangement with its creditors, or steps are taken for the winding up of the buyer, or the buyer has a receiver appointed over any of its property, Moffat may treat any contract with the buyer as terminated and the price then unpaid whether or not due in whole or part, shall become due and payable.
16.2 If the manufacture, dispatch or transport of goods is delayed due to any act or omission of the buyer, and that delay continues beyond a reasonable time, Moffat may treat the contract as terminated and a proportion of the price that reflects the goods or services already delivered by Moffat together with any expenses and any additional costs attributable to such delay, shall become due and payable.
16.3 The buyer shall indemnify and keep Moffat indemnified against any Loss which:
(a) Moffat may suffer or incur, or is liable for arising out of, or in connection with the storage, use, possession, or other act or omission of the buyer in respect of any goods or services supplied; or
(b) may be brought by a third party arising out of or in connection with any goods or services supplied by Moffat to the buyer,
except to the extent that any Loss arises due to a defect in the goods or services or directly from the gross negligence or fraud of Moffat.
17. CLAIMS
17.1 The buyer shall advise Moffat in writing of any claims:
(a) for loss or damage – within 14 days of receipt in the case of Australian orders and 21 days of receipt in the case of export orders; and
(b) for non–delivery or a shortfall in delivery – within 7 days of agreed or reasonable delivery time in the case of Australian orders and 14 days of agreed or reasonable delivery time in the case of export orders
17.2 Moffat will advise the buyer of any rejected claim for credit for goods returned in writing electronically, detailing the reason/s for rejection, after which payment in full will be required from the buyer for the value of the rejected claim.
18. DURABILITY
The buyer acknowledges that the durability of goods may be affected by damage from abnormal use by the buyer, neglect, misuse, spasmodic and/or irregular use and use of water that is outside the quality and/or temperature specifications of the goods.
19. WARRANTY AND LIABILITY
19.1 With the exception of the buyer's statutory rights, (including the Consumer Guarantees), and to the extent permitted by law, Moffat excludes:
(a) any term, condition or warranty that may otherwise be implied into these Contract Terms;
(b) any liability for Loss; and
(c) any liability for Consequential Loss.
19.2 Subject to clause 19.3, if the supply of goods or services is to a consumer (as defined in the Australian Consumer Law), then Moffat’s goods and services are provided with guarantees that cannot be excluded under the Australian Consumer Law.
19.3 If the buyer is a consumer and the goods or services supplied are not goods or services 'of a kind ordinarily acquired for personal, domestic or household use or consumption', as that expression is used in section 64A of the Australian Consumer Law and it is 'fair or reasonable' for Moffat to rely on such limitation in accordance with section 64A(3) of the Australian Consumer Law;
(a) in the case of good will be limited to:
(i) the replacement of the goods or the supply of equivalent goods;
(ii) the repair of the goods;
(iii) the payment of the cost of replacing the goods or of acquiring equivalent goods; or
(iv) the payment of having the goods repaired.
(b) In the case of services will be limited to:
(i) the supplying of the services again; or
(ii) the payment of the cost of having the services supplied again.
19.4 Any express warranty offered by Moffat with respect to the goods is offered subject to the terms and conditions set out in such warranty, as published on Moffat's website from time to time.
20. MOFFAT MATERIALS
20.1 All Moffat Materials, except for Moffat’s standard descriptive specifications, operating instructions, layout and foundation drawings:
(a) remain the property of Moffat at all times; and
(b) must be returned to Moffat on completion of the contract or on request.
21. VARIATION OF THESE CONTRACT TERMS
21.1 Moffat may vary these Contract Terms without notice to the buyer if it is reasonably necessary to do so to protect its legitimate business interests. The varied Contract Terms will be published on Moffat’s website at https://www.moffat.com.au/terms-and-conditions-purchase.
21.2 If clause21.1does not apply, Moffat will provide the buyer with reasonable notice of any proposed change to the Contract Terms by sending the proposed Contract Terms to the buyer via email and by publishing the proposed Contract Terms on its website at https://www.moffat.com.au/terms-and-conditions-purchase.
21.3 The buyer will be deemed to have accepted the proposed Contract Terms pursuant to clause 28.
21.4 If the buyer, acting reasonably, considers the proposed changes to the Contract Terms to be unacceptable, it may terminate the agreement by providing reasonable notice to Moffat before the effective date of the proposed Contract Terms. The right of the buyer to terminate under this clause does not negate any of the buyer’s obligations under these Contract Terms in relation to payment for goods or services that have already been ordered by Moffat or for payment to Moffat of any reasonably incurred expenses or costs in relation to the termination.
22. INTELLECTUAL PROPERTY
22.1 All Intellectual Property in Moffat Materials is owned by or licensed to Moffat and is protected under Australian and international law. The buyer must not use any such Intellectual Property (or any part thereof) or reproduce, adapt, modify, publish or disclose to any third party such Moffat Materials (or any part thereof), except for:
(a) use of the Moffat Materials for the purpose for which they are supplied;
(b) use permitted in accordance with these Contract Terms;
(c) use with the prior written consent of Moffat; or
(d) as otherwise permitted by law.
22.2 The buyer grants to Moffat a non-exclusive, worldwide, royalty-free, sub-licensable licence to use any Buyer Materials for the purposes of performing its obligations and enforcing its rights under these Contract Terms. The buyer represents and warrants that all Intellectual Property in Buyer Materials is owned by or licensed to the buyer, and that the buyer has all necessary rights to grant the licence in this clause 22.2.
23. GOODS AND SERVICES TAX
23.1 If GST is imposed on any taxable supply under these Contract Terms, then Moffat has the right to increase the purchase price payable on that taxable supply by an amount equal to the GST imposed.
23.2 To obtain a valid tax invoice, the buyer must supply Moffat with its ABN.
23.3 Any reference in this clause to “GST”, “taxable supply” and “tax invoice” has the meaning given to those expressions in A New Tax System (Goods and Services Tax) Act 1999.
24. PRIVACY
24.1 Moffat handles personal information in accordance with its privacy policy, a copy of which is available at www.moffat.com.au/privacy-policy.
24.2 The buyer consents to Moffat disclosing information about the order, which may include Personal Information about the buyer, to Moffat's related entities, its third-party dealers, and service providers facilitating the delivery of Moffat's goods and services.
25. NO WAIVER
25.1 Failure by Moffat to enforce any of these Contract Terms shall not be construed as a waiver of any of Moffat's rights hereunder or a waiver of a continuing breach.
26. GOVERNING LAW
26.1 This contract shall be governed by the laws of the State of Victoria, and the buyer submits to the non–exclusive jurisdiction of the courts of that State.
27. INTERPRETATION
27.1 In these Contract Terms the following words will (unless the context otherwise requires) have the following meanings:
(a) “Australian Consumer Law” means Schedule 2 of the Competition and Consumer Act 2010 (Cth) and the corresponding provisions of the relevant State Fair Trading Acts;
(b) “buyer” includes any servant, agent, partner, contractor or employee of that person;
(c) "Buyer Materials" means all documents, text, images, drawings, photographs, recordings, specifications, instructions and other information provided to Moffat by or on behalf of the buyer, including any instructions and directions relating to goods or services requested by the buyer;
(d) "Consumer Guarantee" means a right or guarantee the buyer may have under the Australian Consumer Law or other rights in relation to the supply of goods or services (such as terms implied into a contract) that cannot lawfully be excluded;
(e) "Consequential Loss" means any loss, damage or costs incurred by a party or any other person that is indirect or consequential, as well as loss of revenue; loss of income; loss of business; loss of profits; loss of production; loss of or damage to goodwill or credit; loss of business reputation, future reputation or publicity; loss of use; loss of interest; losses arising from claims by third parties; loss of or damage to credit rating; loss of anticipated savings and/or loss or denial of opportunity;
(f) "Intellectual Property" means any and all intellectual and industrial property rights anywhere in the world including but not limited to rights in respect of or in connection with trade marks, service marks, patents, designs, trade secrets, copyright and analogous rights, and any associated goodwill, now or in the future, including any modifications or derivatives, and any right to register such rights;
(g) “PPS Act” means the Personal Property Securities Act 2009 (Cth);
(h) “Loss” means any damage, loss, liability, expense or cost (including, but not limited to, special, proximate, incidental, direct, indirect or Consequential Loss or damages or loss caused by the negligence of CE);
(i) “Moffat” includes all Moffat’s employees, agents, related entities and each of their respective employees and agents;
(j) "Moffat Materials" means all documents, text, images, drawings, photographs, recordings, layouts, specifications, operating instructions, and other information provided or distributed by or on behalf of Moffat, including trade marks, logos, trading names and website content;
(k) "Personal Information" has the same meaning as in the Privacy Act 1988 (Cth);
(i) a reference to “including” means “including without limitation”;
(m) any agreement, warranty, representation or obligation which binds or benefits 2 or more persons, binds or benefits those persons jointly and severally; and
(n) “$” or “dollars” is a reference to the lawful currency of Australia.
28. ACCEPTANCE
28.1 Acceptance by the buyer of these Contract Terms may be by any one of the following ways:
(a) by signing and returning a copy of these Contract Terms;
(b) by performing an act that is done with the intention of adopting or accepting these Contract Terms, including but not limited to ordering goods after these Contract Terms are made available to the buyer or (as applicable) after the most recently amended version of these Contract Terms are made available to the buyer, including by publication on Moffat's website; or
(c) by oral acceptance.
28.2 Failure to accept these Contract Terms within seven days of receipt by the buyer of these Contract Terms may result in the immediate withdrawal of Moffat's offer to supply goods or services.
