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2.1 Unless previously withdrawn by Moffat at any time, a quotation is open for acceptance for a period of thirty (30) days from the date of the quotation after which time it will lapse.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.
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.
19.1 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 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 ;
(d) “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;
(e) “PPS Act” means the Personal Property Securities Act 2009 (Cth);
(f) “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);
(g) “Moffat” includes all Moffat’s employees and agents;
(h) a reference to “including” means “including without limitation”;
(i) any agreement, warranty, representation or obligation which binds or benefits 2 or more persons, binds or benefits those persons jointly and severally; and
(j) “$” or “dollars” is a reference to the lawful currency of Australia.
25.1 Acceptance by the buyer of these Contract Terms, as amended by Moffat from time to time, 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 conditions, including but not limited to continuing to order Goods; or
(c) by oral acceptance.
25.2 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.
Purchase Order Terms and Conditions
Moffat and the Supplier agree to be bound by these terms and conditions of purchase (Terms) in all circumstances where Moffat agrees to purchase goods (Goods) or services (Services) from the Supplier and the Supplier agrees to supply those Goods or Services to Moffat.
1. Undertaking as to title
The Supplier undertakes that at the time of the passing of the title in the Goods:
a) The Supplier has the right to sell the Goods; and
b) The Goods are free from any charge or encumbrance in favour of any third party.
2. Mode of order
Moffat shall not be liable to accept delivery of, or pay for any Goods supplied or Services rendered in accordance with clauses 7, 12 and 13, unless ordered by Moffat on its purchase order form (Purchase Order).
3. Written acknowledgement of Purchase Order and acceptance
a) The Supplier must acknowledge that it:
i. received the completed Purchase Order; and
ii. is aware of the expected delivery date, the delivery location, the quantity and Price of the Goods or Services to be supplied.
b) The delivery of the Goods and/or the provision of the Services by the Supplier is confirmation of the acknowledgement set out in clause 3a).
c) Acceptance by the Supplier of these Terms and the Purchase Order, as amended by Moffat from time to time in accordance with clause 20, may otherwise be by any one of the following ways:
i. by signing and returning a copy of the Purchase Order to Moffat;
ii. by delivering the Goods and/or providing the Services to Moffat; or
iii. by oral acceptance.
d) Failure to accept these Terms and the Purchase Order within 24 hours of receipt by the Supplier of the Purchase Order may result in the immediate withdrawal of Moffat’s Purchase Order.
4. Creation of Agreement
a) Acceptance of the initial Purchase Order (and subsequent Purchase Orders), together with these Terms, will create an agreement between the Supplier and Moffat (Agreement).
b) The Supplier acknowledges that these Terms are referred to on all Purchase Orders, are available upon request, are available on Moffat’s website (www.moffat.com.au) and that they will form the basis of this Agreement. In the event of any inconsistency between these Terms and any terms and conditions sought to be relied upon by the Supplier, whether previously entered into by Moffat or otherwise, these Terms shall prevail.
5. Purchase Order number
The Purchase Order number and part number in respect of all Goods must be stated on all delivery advice documents, packing slips, invoices and any correspondence relating to such order.
a) Moffat agrees to pay the Supplier the Price specified in the Purchase Order.
b) Unless the Purchase Order provides otherwise, the Price is inclusive of:
i. all charges for packaging, packing and delivery of the Goods in accordance with this Agreement;
ii. the cost of the Services (if any) to be provided with the Goods and any items used or supplied in conjunction with the Services;
iii. GST (unless this Agreement expressly states that the Price excludes GST); and
iv. all other taxes.
c) Subject to clauses 20c) and d), the Supplier may not increase the Price without Moffat’s prior written consent. Moffat has the right to refuse to give such consent.
7. Invoicing and payment
a) The Supplier must invoice Moffat upon delivery of the Goods or, if later, upon completion of the Services.
After submitting an invoice under clause 7a), if requested by Moffat, the Supplier must provide Moffat with all relevant records to enable it to calculate and/or verify the amount of the invoice.
b) If the Supplier does not provide Moffat with the invoice under clause 7a) within 30 days of delivery of the Goods or, if later, completion of the Services, and Moffat incurs any cost in relation to, or cannot recover either part or the whole of the invoice from its customer because of, the late provision of the invoice, Moffat may claim and recover that cost, or portion of the invoice, from the Supplier.
c) Subject to Moffat accepting delivery of the Goods and/or Services under clauses 12 and 13, Moffat will pay all invoices rendered to it by the Supplier under clause 7a) within 60 days of the end of the month in which that invoice was received by Moffat except where Moffat disputes the invoice, in which case:
i. Moffat will pay the undisputed part of the relevant invoice (if any) to the Supplier;
ii. retain and dispute the balance of the invoice; and
iii. if the resolution of the dispute determines that Moffat is to pay an amount to the Supplier, Moffat will pay that amount to the Supplier upon resolution of that dispute, otherwise Moffat will keep the disputed amount.
d) Moffat may reduce any payment due to the Supplier under these Terms by any amount for which the Supplier is liable to Moffat, including costs, charges, damages and expenses. This does not limit Moffat’s right to recover those amounts in other ways.
e) Unless otherwise specified, any money payable under this Agreement is to be paid in Australian currency.
f) No interest will be payable by Moffat in respect of any invoice rendered to it by the Supplier under clause 7a) which remains due and unpaid.
g) If this Agreement involves the supply of Goods on a cost plus basis, Moffat has the right to conduct an audit of the basis of the Supplier’s charges using the Supplier’s records. This audit right continues for 12 months after Moffat pays the relevant invoice.
h) If this Agreement involves the supply of Services on a cost plus or hourly basis, upon request by Moffat, the Supplier must provide Moffat with relevant time sheets or records with the invoice to which that time spent relates and Moffat has the right to conduct an audit of the basis of the Supplier’s charges using the Supplier’s records. This audit right continues for 12 months after Moffat pays the relevant invoice.
8. Delivery and Delivery Date
a) Subject to clause 16, delivery takes place when the Goods and/or Services are delivered to Moffat on the date set out in the Purchase Order (Delivery Date).
b) The Delivery Date is of the essence of this Agreement. The Supplier acknowledges that Moffat may suffer loss if delivery of the Goods and/or Services takes place after the Delivery Date.
9. Failure to deliver correct quantity of Goods or by Delivery Date
If the Supplier delivers to Moffat a quantity of Goods less than contracted, or fails to deliver the Goods by the Delivery Date, Moffat may, without prejudice to its rights in respect of the breach of this Agreement:
a) Reject the Goods, refuse to pay the Supplier’s invoice issued under clause 7a) and terminate this Agreement. If this occurs, without prejudice to Moffat’s other remedies, the Supplier must, at its own cost, promptly collect any Goods which it has already delivered to Moffat;
b) Cancel the remainder of the delivery, partially accept the Goods which have already been delivered and correspond to the Purchase Order and recover an amount from the Supplier which will cover the loss or damage suffered by Moffat for the Supplier’s breach of failing to deliver the remainder of the Goods; or
c) Vary the details of the remainder of the delivery by appointing an alternative date and/or place of delivery of the undelivered Goods without incurring any liability in relation to the variation and, if applicable, recover an amount from the Supplier which will cover the loss or damage suffered by Moffat for the Supplier’s breach of failing to deliver the remainder of the Goods as per the original Purchase Order.
10. Stipulations for supply of Goods
All Goods supplied pursuant to the Purchase Order must:
a) Be in accordance with Moffat’s specification and drawings (where applicable). Moffat will return to the Supplier any Goods received by it which do not comply with its specifications and drawings and any costs incurred in doing so will be payable by the Supplier;
b) Be accompanied by a packing slip;
c) Be delivered to Moffat with all freight charges paid unless otherwise specified in the Purchase Order. Subject to clause 16, Moffat accepts no responsibility for damage, loss or delay in transit;
d) Comply with any relevant Australian or New Zealand standards and any other standards specified in this Agreement;
e) Be fit for the purpose for which Goods of the same kind are commonly supplied and for any other purpose which Moffat made known to the Supplier prior to Moffat submitting the Purchase Order to the Supplier; and
f) Be new unless otherwise specified in the Purchase Order.
11. Stipulations for supply of Services
In providing the Services pursuant to the Purchase Order, the Supplier must ensure that:
a) The Services match the description of the Services in the Purchase Order;
b) The Services correspond in nature and quality with any demonstration of the Services provided by the Supplier prior to Moffat submitting the Purchase Order to the Supplier;
c) The Services are provided by appropriately qualified and trained personnel. Where specific persons are identified in the Purchase Order to provide the Services, the Services must be provided by those persons unless otherwise agreed in writing by Moffat;
d) The Services are provided with due care and skill in accordance with agreed services levels and reasonable standards for the provision of services of that kind;
e) The Services are provided using the Supplier’s best efforts, and ensure that the Supplier’s employees, agents, contractors and sub-contractors use their best efforts, not to interfere with any of Moffat’s activities, or the activities of any other person, on Moffat’s premises;
f) The Services comply with, and ensure that the Supplier’s employees, agents, contractors and sub-contractors comply with:
i. all applicable laws regulations and industrial awards and agreements;
ii. all security, health, environment and occupational health and safety guidelines, rules and procedures and information technology protocols provided to the Supplier by Moffat; and
iii. all directions and orders given by Moffat’s representatives; and
g) Moffat’s, and Moffat’s customers’, premises are left secure, clean, orderly and fit for immediate use on completion of the Services.
12. Inspection and acceptance of Goods
a) All Goods delivered in accordance with the Purchase Order shall not be deemed to be accepted by Moffat until Moffat has had a reasonable opportunity to inspect and approve the Goods after delivery and provides the Supplier with a written acknowledgement of its acceptance. Moffat may reject Goods which do not match those described in the Purchase Order or which otherwise do not satisfy the criteria set out in this Agreement after such inspection.
b) Payment for the Goods or signing delivery receipts before inspection do not constitute acceptance of the Goods
c) If upon inspection Moffat determines that any of the Goods do not conform with the Purchase Order then they will be considered to be defective Goods, in which case Moffat may:
i. reject the defective Goods and return them to the Supplier at the Supplier’s risk and cost; or
ii. repair the defective Goods and be indemnified and held harmless by the Supplier for all costs and expenses incurred in undertaking that repair.
d) Subject to clause 21b), transfer of title and acceptance of the Goods by Moffat does not constitute acknowledgement by Moffat as to the condition of each of the Goods or that each of the Goods conforms with the criteria set out in this Agreement. Moffat may at any time reject and return to the Supplier any of the Goods which do not conform with this Agreement and are determined to be defective Goods by Moffat at a later stage.
e) Upon request, the Supplier agrees to refund to Moffat any payments made by Moffat in respect of defective Goods which Moffat rejects.
f) This clause applies notwithstanding that an acknowledgment of receipt of the Goods may have been executed by or on behalf of Moffat.
13. Inspection and acceptance of Services
a) The Supplier must provide to Moffat, at Moffat’s request, progress reports on the provision of the Services. A progress report must be sufficiently detailed to allow Moffat to ascertain whether the Services conform with this Agreement.
b) At any time during the provision of the Services, Moffat may inspect or witness the Services or their results.
c) If upon inspection Moffat determines that any of the Services or their results are defective Services, Moffat may:
i. reject those parts of the Services which are defective Services by notifying the Supplier that Moffat is rejecting them; and
ii. require the Supplier to provide the defective Services again or reimburse Moffat for any loss or damage incurred in connection with the rejected defective Services,
iii. make good any of the defective Services; and
iv. require the Supplier to reimburse Moffat for any expenses Moffat may incur in making good any such defective Services.
d) Moffat has the right to reject any Services which do not conform with this Agreement even if Moffat has already paid for those defective Services.
e) The Supplier agrees to refund to Moffat, when requested, any payments made by Moffat in respect of defective Services which Moffat has rejected in accordance with clause 13d).
f) In accordance with clause 13c)iv, the Supplier agrees to reimburse Moffat for any expenses that Moffat may incur in making good defective Services.
g) The remedies provided in this clause 13 do not exclude any other remedies provided by law.
14. Passing of risk and acceptance for delivery
The Goods remain at the Supplier’s risk until they are delivered to Moffat in accordance with clause 8 and accepted by Moffat in accordance with clause 12.
15. Time of transfer of title
Subject to inspecting and accepting the Goods in accordance with clause 12, property in or title to the Goods shall pass to Moffat on delivery.
16. Delivery, damage and losses in transit
a) Unless otherwise specified, the Supplier is responsible for ensuring that the Goods are properly packed and delivered to the place specified in the Purchase Order or otherwise specified by Moffat.
b) The Supplier must include a packing list in each package of Goods delivered to Moffat.
c) The Supplier must comply with any packaging directions or guidelines given to it by Moffat from time to time.
d) If the Goods are damaged or lost in transit, the Supplier must repair or replace those Goods free of charge.
e) If the Goods are damaged in accordance with clause 16d), delivery of those Goods in accordance with clause 8 shall not be deemed to have taken place until the replacement or repaired Goods have been delivered by the Supplier to Moffat or Moffat’s agent. Moffat reserves the right to hold the damaged Goods at the Supplier’s risk until the replacement or repaired Goods have been delivered by the Supplier or to return them to the Supplier at the risk and expense of the Supplier.
17. Intellectual property
a) The Supplier acknowledges that it may be provided with Moffat’s intellectual property which may include, but is not limited to, designs, drawings, specifications or trademarks (whether registered or not) (Moffat’s IP).
b) The Supplier hereby undertakes not to disclose or make use of, in any manner, either for its own benefit or for the benefit of others, any of Moffat’s IP, which has originated from Moffat without Moffat’s prior written consent.
18. Confidential Information
a) Confidential Information means confidential information, trade secrets, know-how, scientific, technical, product, market or pricing information
relating to the Goods or Services or either party’s business.
b) Each party undertakes that it will not, either during the term of this Agreement or at any time thereafter (except in the proper course of performing its duties under this Agreement or as required by law or by the other party) disclose to any person any Confidential Information of or relating to the other party which it possesses or has become aware as a result of this Agreement or the negotiations preceding this Agreement including, but not limited to, the terms of this Agreement.
c) Nothing in this Agreement prohibits disclosure of Confidential Information which:
i. is in the public domain;
ii. becomes part of the public domain after it is disclosed to the other party otherwise than as a result of the wrongful act of that other party;
iii. is received from a third party provided that it was not acquired directly or indirectly by that third party from a party to this Agreement; or
iv. is required to be disclosed by law or any government or governmental body, authority or agency having authority over the disclosing party.
d) The obligations under this clause 18 survive termination of this Agreement.
e) Before disclosing any Confidential Information for the reasons set out in clause 18c), the disclosing party must provide the other party with:
i. sufficient notice to enable it to seek a protective order or other remedy; and
ii. all assistance and co-operation which that party considers necessary to prevent the disclosure of its Confidential Information.
19. Force Majeure
a) A Force Majeure Event is as an act of God, flood, earthquake, storm, cyclone, hurricane, lightening, fire, explosion, epidemic, war, terrorism embargo, riot or civil disturbance, strike or other labour dispute, sabotage, expropriation, confiscation or requisitioning of facilities, orders or temporary or permanent injunctions of any duly constituted court and any other matter or event which is beyond the control of the relevant party and for which the relevant party could not take reasonable measures to prevent or which would mitigate its effect.
b) Where either Moffat or the Supplier is unable, wholly or in part, by reason of a Force Majeure Event, to carry out any obligation under this Agreement and that party:
i. gives the other party immediate written notice of the nature and expected duration of, and the obligations affected by, the Force Majeure Event; and
ii. uses all reasonable endeavours to:
A. mitigate the effects of the Force Majeure Event on that party’s obligations under this Agreement; and
B. perform that party’s obligations under this Agreement despite the Force Majeure Event,
that obligation is suspended so far as it is affected by the Force Majeure Event throughout the duration of that Force Majeure Event.
c) If by reason of a Force Majeure Event, the delay or non-performance of either Moffat’s or the Supplier’s obligations will continue for more than 20 consecutive days, or for an aggregate of 20 days in any 12 month period, whichever of Moffat or the Supplier who is not relying on the Force Majeure Event may terminate this Agreement or any Purchase Order by written notice to the other party.
d) Termination of this Agreement under this clause 19 will automatically terminate every Purchase Order in existence at the time of cancellation, unless otherwise specified by the cancelling party in the relevant notice.
20. Termination, variation and suspension of this Agreement
a) Either party may immediately terminate this Agreement by notice in writing to the other party if:
i. the other party breaches this Agreement by not carrying out any of its material obligations under this Agreement and fails to rectify that breach / those breaches following reasonable notice by the terminating party; or
ii. the other party becomes insolvent.
b) Moffat may vary or terminate this Agreement, any part of this Agreement or any Purchase Order at any time upon 7 days’ written notice to the Supplier.
c) When the Supplier receives a notice of variation from Moffat under clause 20b), the Supplier may:
i. vary this Agreement or any Purchase Order in accordance with Moffat’s notice, in which case it must send Moffat a written claim with an adjusted Price for this Agreement or the Purchase Order within 30 days of the effective date of the variation in accordance with clause 20e); or
ii. terminate this Agreement upon 7 days’ written notice, in which case it must comply with the steps set out in clause 20d).
d) Where this Agreement or any Purchase Order has been terminated, the Supplier must:
i. stop work to the extent required by the notice;
ii. take such action as necessary or as Moffat directs, for the transfer, protection and preservation of Moffat’s property;
iii. do its best to minimise the cost of termination to Moffat; and
iv. where the termination results from a notice given under clause 20b), send Moffat a written claim with an adjusted Price for this Agreement or the Purchase Order within 30 days of the effective date of termination in accordance with clause 20e).
e) The Supplier’s written claim must:
i. set out all costs incurred to date in relation to this Agreement;
ii. set out all costs and cost savings that result from the variation or termination of this Agreement;
iii. where this Agreement has been terminated, not specify an adjusted Price that is greater than the Price specified in this Agreement or the Purchase Order; and
iv. not specify an adjusted Price that includes any amount for anticipated profit, unperformed work or Consequential Loss or damage.
f) Moffat has the right to audit the adjusted Price specified in the Supplier’s written claim and, upon request, the Supplier must provide Moffat with all documentation and materials relevant to determine whether it should accept the adjusted Price under this clause 20.
i. Moffat is satisfied that the adjusted Price specified in the Supplier’s written claim is equitable; and
ii. the termination or variation of this Agreement is not a result of any default or action on the Supplier’s part, or on the part of the Supplier’s employees, agents, contractors or sub-contractors (including, without limitation, any of the events specified in clause 20a),
the adjusted Price will apply to this Agreement.
h) Termination of this Agreement does not affect:
i. any rights of the parties which may have accrued before the date of termination; and
ii. the rights and obligations of the parties under clauses 17, 18 and 23 which survive termination of this Agreement.
a) The Supplier warrants that:
i. the Goods will be free from any defect in design, performance, workmanship and makeup, and will conform with this Agreement (including, without limitation, clause 10) for 12 months from the date of delivery of the Goods (Warranty Period);
ii. the Services and the results of the Services will conform with this Agreement (including, without limitation, clause 11), will be provided with due care and skill to a high standard and will be otherwise satisfactory; and
b) If, during the Warranty Period, Moffat determines that any of the Goods are defective Goods, at Moffat’s discretion:
i. it may return the defective Goods to the Supplier;
ii. it may make good the defective Goods and the Supplier must reimburse Moffat for any expenses Moffat incurs in making good any such defective Goods; or
iii. the Supplier must repair or, if Moffat otherwise decides, replace any such defective Goods that Moffat returns to the Supplier at the Supplier’s cost.
c) Any Goods that are repaired or replaced by the Supplier under this Agreement will be subject to the same warranty provisions as the original Goods, from the date of repair or replacement.
d) Any defective Services that are re-provided or made good by the Supplier under this Agreement will be subject to the same warranty provisions as the original Services, from the date of re-provision or making good.
a) The Supplier must take out and maintain during the term of this Agreement a comprehensive professional indemnity, public and products liability policy to cover all amounts which the Supplier may become legally liable to pay as a result of the:
i. death of, or bodily injury (including disease or illness) to, any person;
ii. loss of, or damage to, property; and
iii. loss or damage incurred by Moffat or any third party due to the Supplier’s breach of this Agreement or the Supplier’s recklessness or negligence,
happening anywhere in Australia arising out of or in connection with this Agreement.
b) The limit of liability provided by the policy described in clause 22a) must be not less than $10 million for:
i. statutory workers compensation or employer’s liability insurance;
ii. insurance for the Goods up to the time title in the Goods passes to Moffat under clause 15 for at least their replacement value; and
iii. other insurances required by law or reasonably required by Moffat.
c) At Moffat’s request, the Supplier must produce evidence that the Supplier is maintaining the insurances required by this clause 22.
d) Moffat has the right to take out and maintain any policy of insurance required by this clause 22 if the Supplier fails to do so.
e) The Supplier must reimburse Moffat for any expenses Moffat may incur in taking out and maintaining any policy of insurance under clause 22d).
23. Liability and indemnities
a) The Supplier acknowledges that if it or its employees, agents, contractors and sub-contractors enter Moffat’s premises, the Supplier does so at its own risk and must ensure that its employees, agents, contractors and sub-contractors are also aware that they enter Moffat’s premises at their own risk.
b) The Supplier will be liable for, and will indemnify Moffat and hold it harmless and keep it indemnified and held harmless from and against any liability and/or any loss or damage of any kind whatsoever arising directly or indirectly from:
i. any breach of:
A. any warranty;
B. any of the Terms; or
C. this Agreement,
by the Supplier;
ii. the illness, injury or death of any of the Supplier’s employees, agents, contractors and/or sub-contractors arising out of or in connection with this Agreement;
iii. any loss or damage arising out of, or in connection with, any personal injury, illness or death to any person or damage to any property or any other loss or damage of any kind whatsoever caused or contributed to by:
A. the Goods and the provision of any Services by the Supplier; and/or
B. the entry onto, and the activities undertaken on and in, Moffat’s premises by the Supplier and/or its employees, agents, contractors and/or sub-contractors;
iv. any negligence or wilful act or omission by the Supplier and/or any of its employees, agents, contractors and/or sub-contractors in connection with this Agreement;
v. any claim made against Moffat by any of the Supplier’s employees, agents, contractors and/or sub-contractors in respect of any relevant legislation concerning any taxes, workers compensation, annual leave, long service leave, superannuation or any applicable award, determination or agreement of a competent industrial tribunal;
vi. any penalty imposed for breach of an applicable law in connection with the provision of the Services by the Supplier;
vii. loss or damage to any plant, equipment, tools, appliances or other property owned, rented or hired by the Supplier and used in relation to this Agreement; and
viii. any claim that the Goods, anything the Supplier does in supplying Moffat with the Goods or providing Moffat with any Services, Moffat’s use of the Goods or the results of the Services infringes or allegedly infringes the intellectual property rights of any person,
except to the extent that any liability, loss or damage is solely and directly caused by Moffat’s gross negligence or that of Moffat’s employees, agents, contractors and sub-contractors (other than the Supplier).
c) Each indemnity in this Agreement is a continuing obligation separate and independent from the Supplier’s other obligations and survives termination of this Agreement.
d) It is not necessary for Moffat to incur any expense or make any payment before enforcing a right of indemnity conferred by this Agreement.
e) Neither party will be liable to the other party in any circumstances for any Consequential Loss which 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.
24. Dispute Resolution
a) The parties must take the steps set out in this clause 24 to resolve any dispute or claim between them arising out of or relating to this Agreement, including, but not limited to disputed amounts in an invoice.
b) The parties must attempt to resolve any dispute or claim through negotiations conducted in good faith.
c) Any dispute or claim not resolved under clause 24b), must be referred by a party to the Institute of Arbitrators and Mediators Australia to facilitate a mediation of the dispute or claim in accordance with the Institute of Arbitrators and Mediators Australia’s Mediation Rules applicable at the date of the referral. The mediation must take place in Melbourne, Victoria within 14 days after the referral.
d) Each party must bear its own costs in connection with the mediation, and must share the costs of the mediator and mediation process equally.
e) This clause will continue to apply to the parties even after expiration or termination of this Agreement.
25. Governing law
This Agreement is governed by the law of Victoria and the parties submit to the non-exclusive jurisdiction of the Courts of that State.
Subject to clause 20, no party may vary this Agreement except in writing signed on behalf of both Moffat and the Supplier.
27. Entire agreement
This Agreement constitutes the entire agreement of the parties about this subject matter and any previous agreements, understandings and negotiations on this subject matter cease to have any effect.
Moffat Equipment Warranty
Effective date: 01/01/15
Before you request repair to the equipment under this warranty please check the following to save you unnecessary expense. You will have to pay for faults or problems not covered by this warranty. OPERATION: Make sure your equipment is operated and maintained in accordance with the instructions in the supplied manuals. INSTALLATION: Make sure your product is correctly installed following the instructions in the supplied manuals. This includes correct connection of services such as: electricity, gas, water, drainage and any required chemicals.
- The warranty period is not renewed or extended as a result of a warranty repair or replacement.
- The warranty is not transferable and is only offered to the original purchaser.
- The warranty does not extend to any products that have been completely or partially disassembled.
- These warranty terms cannot be amended except in writing by an authorised representative of Moffat.
- The warranty only applies to products purchased from Moffat or an authorised Moffat distributor.
- Any warranty claim must meet the requirements set out below in “How to Make a Warranty Claim”.
- Improper installation or commissioning of the product.
- Operation, use or maintenance of the product otherwise than in accordance with the instructions provided by Moffat.
- Use of chemicals other than those recommend by Moffat.
- Accidental damage, misuse, negligence or any other failure to take reasonable care.
- Use of the product for a purpose or in environmental conditions outside those specified by Moffat.
How to make a warranty claim
If a product fails within the warranty period, immediately stop using the product and store it in a safe, dry environment and contact Moffat as soon as possible. To make a claim under this warranty, contact Moffat during the warranty period by telephone on 1800 622 216. Alternatively, a warranty claim may be submitted in writing at the address set our below.
What Moffat will do
Costs of obtaining warranty service
- Service outside the normal working hours or on public holidays.
- Service outside Moffat’s service area (200km round trip from a Moffat Service Centre or Moffat Nominated Service Provider).
- On-site service of Bakbar countertops and Slushie Machines.
Moffat Pty Ltd (ACN 069 691 407)
740 Springvale Road, Mulgrave, VIC 3170
Phone number: (03) 9518 3888
Fax number: (03) 9518 3833
Terms And Conditions
This web site and its contents (“Web Site”) is owned by Moffat Group Pty Limited ACN 069 691 407 of 740-742 Springvale Road, Mulgrave, VIC 3170, Australia (“Moffat”).
The use of this Site is governed by the following terms and conditions, as amended from time to time (the “Terms and Conditions”).
By using this Web Site, you agree to be bound by the Terms and Conditions as amended from time to time.
2. Intellectual Property
Trade marks on the websites used to describe or identify any products and services provided by Moffat or any of its subsidiaries, related entities and affiliates (including without limitation Moffat and Blue Seal and the respective logo’s) are trade marks of Moffat (Trade Marks)..
All material on this website, including the text, information, graphics, logos, design, layout, downloads, pricing, products and services (Content) is owned by or licensed to Moffat and is subject to Australian Copyright Law. You must not copy, reproduce, transmit, adapt, distribute, sell, modify, publish or store Content or Trade Marks for any purpose, other than with the prior written consent of Moffat, or as permitted by law. Your access or use of this Web Site does not constitute or create a licence or any other right to use the Content or the Trade Marks. All rights of Moffat are reserved.
3. Linking and Third Party Content
You must not link to, frame or mirror any part of the website without Moffat’s written authorisation.
The website may contain links to or display the content of third parties (Third Party Content), including links to websites operated by other organisations and individuals (Third Party Websites). Third Party Content and Third Party Websites are not under the control of Moffat. Moffat does not endorse, approve or make any warranty or claim regarding Third Party Content, Third Party Websites or the products, services or information available on any Third Party Website, or in respect of the owner or operator of a Third Party Website or their conduct. If you use or rely upon Third Party Content or Third Party Websites, you do so solely at your own risk.
4. Disclaimer and Limitation of Liability
The Web Site and its entire contents are provided on an “as is” basis. Moffat does not make any representation or warranty (either express or implied) as to the completeness, accuracy, reliability or availability of the Web Site or its contents. By accessing this Web Site, you assume all risks associated with its use, including but not limited to the risk that your computer, software or data may be damaged by any virus transmitted by this website or by any Third Party Content or Third Party Website. To the extent permitted by law, all warranties, conditions and claims (whether express or implied) arising out of or in any way connected with this Web Site are hereby excluded. By accessing our Web Site, you agree to indemnify Franchise Selection for any loss, damage, costs or expenses whatsoever suffered by any person or entity arising out of or in any way connected with your access to this website.
You should be aware that information current to a particular time or date as placed on the Web Site does not mean that more recent information of the relevant type does not exist, or is not available through other means, or that circumstances have not changed, such that the information does not reflect the state of affairs at any subsequent time. Further, delays may occur before particular information on this Web Site is updated.
Moffat and its officers, employees, agents, contractors or agents shall not be liable for any loss, damage, claim, expense, cost (including legal costs) or liability arising from your use or non use of the Web Site, or your reliance upon information contained upon it (whether arising from Moffat’s negligence or otherwise). To the fullest extent permitted by law, Moffat’s liability for any breach of any term, condition, representation or warranty is limited to the supplying of the relevant good or services again, at Moffat’s discretion.
You agree to indemnify Moffat and each of the officers, employees, agents, contractors, suppliers and licensors (collectively “Affiliates”) of Moffat in respect of any liability, loss or damages (including all legal and other costs on a full indemnity basis) suffered or incurred by them arising (in whole or part) out of the breach of or failure to comply with any of these Terms and Conditions, or any other default or wrongful conduct in relation to the subject matter of these Terms and Conditions, on the part of you or any of your Affiliates.
6. Revision of Website
Moffat reserves the right to revise the content of, amend links from, or withdraw access to the Web Site at any time without notice.
7. Software and other digital materials available for download
Software and related digital materials may be expressly made available by Moffat for downloading from the Web Site. Unless those software or materials are expressed to be pursuant to specific conditions (in which case those conditions will apply), Moffat grants to you a personal, non-transferable, and non-exclusive licence to use the relevant software or materials for your own private use, provided that you do not copy, communicate to the public, modify, reverse engineer, or otherwise transfer or purport to transfer any right in them, and provided also that you ensure that all copies of such software and materials retain any copyright or other intellectual property notices.
Moffat gives no warranties (either express or implied) as to the completeness, accuracy or reliability of such software or materials, and they are downloaded and used by you entirely at your own risk.
8. Content and other information provided by you and others
Certain parts of the Web Site may allow you to post messages or otherwise submit materials for publication on the Web Site. You must not:
- use the website in breach of any applicable laws or regulations;
- use the website to harm, abuse, harass, stalk, threaten or otherwise offend others;
- interfere with, disrupt, or create an undue burden on the website;
- upload, post, transmit or otherwise make available any material that:
- is not your original work, or which may infringe the intellectual property or other rights of another person;
- is, or could reasonably be expected to be, defamatory, obscene, offensive, threatening, abusive, pornographic, vulgar, profane, indecent or otherwise unlawful, including material that racially or religiously vilifies, incites violence or hatred, or is likely to offend, insult or humiliate others based on race, religion, ethnicity, gender, age, sexual orientation or any physical or mental disability;
- includes an image or personal information of another person unless you have their consent;
- you know or suspect, or should reasonably know or suspect, to be false, misleading or deceptive;
- contains large amounts of untargeted, unwanted or repetitive content; or
- contains financial, legal, medical or other professional advice.
Moffat may monitor or review the contents of messages and materials posted on the Web Site and reserves the right to edit, refuse to post, or remove any message and materials from the Web Site as it sees fit. However, Moffat is under no obligation to perform these activities and does not warrant that it will do so. The information and opinions expressed by users of the Web Site are those of the relevant individuals who post them, and Moffat is not responsible for them.
You grant to Moffat a non-exclusive, worldwide, perpetual, royalty free licence to copy, adapt, communicate to the public and otherwise use, reproduce, edit and exploit for any purpose all or any part of the materials, information, ideas, concepts, know-how or techniques provided directly or indirectly by you through the Web Site or your use of the Web Site (including without limitation information gained from the fact that you have accessed the Web Site and information, goods or services you have sought from the Web Site (“Information”) and unconditionally waive all moral rights as defined by the Copyright Act 1968. You warrant that you have the ability to grant such rights to Moffat, and agree to indemnify Moffat if any third party takes action against us in relation to Information you provide.
9. Products offered for Sale on the Web Site
Certain parts of the Web Site may make available products for purchase by you. While Moffat will attempt to ensure the availability of all products advertised for sale on the Web Site, it does not guarantee that all products will be available at all times. Moffat specifically retains the right, at any time and without notice, to remove, alter or add products and/or vary the prices for those products, without any liability to you.
Orders places for products listed on the Web Site must only be placed in accordance with the instructions and procedures specified on the Web Site and these Terms and Conditions. The products offered for sale of the Web Site are only available to persons located in Australia and who are capable of entering into legally binding contracts. An order placed on the Web Site is an offer to purchase the particular product for the price specified on the Web Site at the time at which the order is placed. Moffat may accept or reject that offer for any reason and no contract will arise until after Moffat has advised you that it has accepted the order. An order, once sent, cannot be withdrawn or amended unless Moffat specifically agrees.
You must pay for all products ordered by you through the Web Site in the manner specified on the Web Site. Moffat will retain title to the products ordered by you until payment in full has been received from you for those products. Products ordered from the Web Site will be delivered in the manner specified on the Web Site. However, the delivery times given on the Web Site are indicative only, and the Moffat will not be liable for any failure to achieve them. Risk in the products will pass to you on dispatch from Moffat or its distribution centre.
10. Competitions and Promotions
Certain parts of the Web Site may contain competitions or promotions from Moffat or third parties. The terms and conditions for those competitions and promotions will be specified on the relevant part of the Web Site from time to time. By entering or participating in the relevant competition or promotion you agree to be bound by the relevant terms and conditions.
Notwithstanding any specific terms and conditions, Moffat specifically retains the right, at any time and without notice, to remove, alter or add to competitions or promotions on the Web Site without any liability to you.
All competitions and promotions are only open to persons located in Australia and prizes will not be awarded to people who do not meet this requirement at the time of entry.
These terms and conditions are governed by the laws of Victoria, Australia.