Terms and Conditions of Sale
The supply of goods or services by Moffat Pty Ltd (“Moffat”) is made on thefollowing terms and conditions (the “Contract Terms”):
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, as amended from time to time, 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 purchaser to Moffat.
1.3 Moffat may alter these Contract Terms on 30 days notice.
1.4 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2.1 Unless previously withdrawn by Moffat at any time, a quotation is open for acceptance for a period of thirty (30) days from the date of the quotation after which time it will lapse.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 AND PRICE VARIATION
3.1 Unless otherwise stated, all prices charged are ex works.
3.2 Moffat is entitled to adjust any price to take into account a variation in cost arising from:
(a) delays in manufacture or installation as a result of any act or omission by the buyer, or other circumstances beyond Moffat’s control;
(b) variations in Moffat’s costs of manufacture including, without limitation, variations in the cost of labour or raw materials;
(c) variations in the cost of the goods to Moffat due to variations in the cost of freight and transport, insurance premiums, customs duties or currency exchange rates; and
(d) any error or omission.
3.3 All spare parts will incur a freight and packing charge.
3.4 Any coupon code must be applied at the time of checkout in order to be honoured. No retrospective coupon claims can be accepted.
4. TERMS OF PAYMENT
4.1 Payment is to be made on goods sold by Moffat within Australia 30 days from the date of Moffat’s statement 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.
4.2 Unless agreed by Moffat in writing,
(a) payment is to be made on goods sold by Moffat outside Australia on a 30 day letter of credit;
(b) payment is to be made on goods sold by Moffat in Asia by a confirmed letter of credit.
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, 4.2 or 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 on any overdue amounts at a rate of 2% per annum above the overdraft rate for the time being charged by Moffat’s banker calculated and compounded on a daily basis from the due date until the payment is made in full.
5. VARIATION OF TERMS OF PAYMENT
5.1 If Moffat 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, and/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 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.
6.5 Moffat may suspend delivery, supply or completion and/or terminate the contract where the failure to deliver, supply or complete is caused by force majeure, including any act or omission on the part of the buyer, 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 Moffat.
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 contract 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 Products passes to the Customer when the Products are loaded at Moffat 's warehouse for delivery to the Customer.
9.2 Moffat's rights under this clause 9 secure:
(a) Moffat's right to receive the Price of all the Products sold under these Conditions; and
(b) all other amounts owing to Moffat under this agreement or any other agreement between the Customer and Moffat.
9.3 All payments received from the Customer may be applied by Moffat in the manner Moffat, in its absolute discretion, determines.
9.4 Until full payment in cleared funds is received by Moffat for all Products supplied by it to the Customer, as well as all other amounts owing to MOFFAT by the Customer under this or any other agreement:
(a) legal title and property in all Products supplied under these Conditions remain vested in MOFFAT and do not pass to the Customer;
(b) subject to (iii), the Customer must store the Products separately and in such a manner and maintain any labelling and packaging of Moffat, so that the Products are clearly and readily identifiable as the property of Moffat;
(c) the Customer must not sell the Products except in the ordinary course of the Customer's business;
(d) the Customer holds and agrees to hold the proceeds of any sale, lease or other dealing with the Products for MOFFAT in a separate bank account with a bank which does not (and will not in the future) provide finance to the Customer;
(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 Products and shall be entitled without notice to the Customer and without liability to the Customer, to enter any premises where it suspects the Products may be located in order to search for and remove the Products 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 Customer 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. 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 Customer acknowledges and warrants that Moffat has a security interest (for the purposes of the PPS Act) in the Products and any proceeds described in clause 9.4(d); and
(g) the security interest arising under this clause attaches to the Products when the Buyer obtains possession of the Products and the parties confirm that they have not agreed that any security interest arising under this clause 9 attaches at any later time.
9.5 The Buyer warrants that it does not intend to use the Products predominantly for personal, domestic or household purposes.
9.6 The Buyer must, at its own cost, insure and keep insured the Products against such risks as a prudent owner of the Products would insure at their full cost price, with a reputable insurance company.
10.1 Unless a contrary intention appears, words or expressions used in this clause 0 that 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 this Contract (or any of the transactions contemplated by or under it) 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 any thing (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; 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 either party pursuant to this clause 0 will 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 to this clause 0.
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:
(a) section 95 (notice of removal of accession), to the extent that it requires Moffat to give a notice to the Buyer;
(b) section 96 (person with an interest in the whole may retain accession);
(c) section 117 (obligations in land secured by personal property and land);
(d) section 118 (enforcing security interests in accordance with land law decisions), to the extent that it allows Moffat to give a notice to the Buyer;
(e) section 120 (enforcement of security interest in liquid assets);
(f) section 121(4) (enforcement of liquid assets – notice to grantor);
(g) section 123 (secured party may seize collateral);
(h) section 125 (obligation to dispose of or retain collateral);
(i) section 126 (apparent possession of collateral);
(j) section 130 (notice of disposal), to the extent that it requires Moffat to give a notice to the Buyer;
(k) paragraph 132(3)(d) (contents of statement of account after disposal);
(l) subsection 132(4) (statement of account if no disposal);
(m) section 142 (redemption of collateral); and
(n) 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 party will disclose to a person or entity that is not a party to this Contract 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 A fee of 15% 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.
11.2 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
11.3 The credit given for the return of any custom made goods will be reduced by the amount of Moffat’s expenses in manufacturing or otherwise procuring those goods.
11.4 Where Moffat rejects the claim for credit for goods returned, and advises the buyer accordingly, Moffat will, unless requested to return the goods at the buyers expense with-in 7 days of notification of the claim being rejected, dispose of the items on behalf of the client
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.
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.
15.1 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.
16. BUYER’S DEFAULT AND INDEMNITY
16.1 Without prejudice to any other remedy, if the buyer breaches any of its obligations under a contract with Moffat, commits an act of bankruptcy, 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 work already done 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 action, claim, demand, loss, damage, cost or expense 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 supplied; or
(b) may be brought by a third party arising out of or in connection with any goods supplied by Moffat to the buyer.
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.
The durability of goods may be affected by 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 Consumer Guarantees, Moffat excludes:
(a) any term, condition or warranty that may otherwise be implied into these Terms;
(b) any liability for Loss; and
(c) any liability for Consequential Loss.
19.2 Subject to clause 19.3, the liability of Moffat in respect of any breach of or failure to comply with any Consumer Guarantee is limited to the following:
(a) In the case of goods, 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 the cost of having the goods repaired.
(b) In the case of services, to:
(i) the supplying of the services again; or
(ii)the payment of the cost of having the services supplied again.
19.3 The liability of Moffat in respect of a breach of or a failure to comply with a Consumer Guarantee will not be limited in the way set out in clause 19.2 if:
(a) the goods or services supplied are 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;
(b) it is not 'fair or reasonable' for Moffat to rely on such limitation in accordance with section 64A(3) of the Australian Consumer Law; or
(c) the relevant Consumer Guarantee is a guarantee pursuant to sections 51, 52 or 53 of the Australian Consumer Law.
20. RETURN OF DRAWINGS
20.1 All drawings and specifications obtained by the buyer from Moffat or its employees or agents remain Moffat’s property.
20.2 The buyer shall not, without the prior written consent of Moffat, utilise or reproduce such drawings or specifications or communicate them to a third party, except for the purpose for which they are supplied.
20.3 Except for Moffat’s standard descriptive specifications, operating instructions, layout and foundation drawings, all drawings and specifications are to be returned to Moffat on completion of the contract or on request.
21. GOODS AND SERVICES TAX
21.1 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.
21.2 To obtain a valid tax invoice, the buyer must supply Moffat with its ABN.
21.3 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.
22. NO WAIVER
22.1 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.
23. GOVERNING LAW
23.1 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.
24.1 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” means and includes the buyer and any servant, agent, partner, contractor or employee of that person;
(c) "Consumer Guarantee" means a right or guarantee the Customer may have under the Austr