Terms and Conditions of Sale - Online
Effective date: 1st January 2018
The supply of Goods or services by Moffat Limited (Moffat) within New Zealand to you (Customer) is made on the following terms and conditions (the Contract Terms):
1.1 These Contract Terms include all those statutory rights conferred on the Customer that Moffat is not capable of excluding, restricting or modifying.
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 Any condition contained in the Customer’s order which is inconsistent with, qualifies or is contrary to these Contract Terms shall be of no effect.
1.5 Any variation, waiver or cancellation of the Customer’s order shall be of no effect unless accepted in writing by Moffat in which case the Customer will forfeit any payment made in advance.
1.6 Where the Customer and Moffat agree to variation in the quantity of the Goods, the Goods shall be priced at the rate applicable to the original quantity or the revised quantity at the absolute discretion of Moffat.
1.7 Where the Customer enters into these Contract Terms as agent for a third party, the Customer remains personally liable to Moffat for all obligations pursuant to these Contract Terms until the third party has ratified these Contract Terms and given notice in writing of that ratification to Moffat and, if required, given a registerable charge over the Goods in favour of Moffat.
1.8 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.
1.9 The Customer may order goods sold by Moffat (Goods) by selecting them and submitting an order through our website (Site). The Site includes all web pages under or forming part of the domain name www.moffat.co.nz. By placing an order for good(s) through the Site the Customer agrees to these Contract Terms in addition to any terms of use that may be applicable to the Site.
1.10 Online sales can only be made to customers domiciled in New Zealand.
2.1 Any order for a good placed through the Site is an offer by the Customer to purchase a particular good for the price shown on the Site at the time the Customer places the order. All orders are subject to confirmation of the availability and price of each good. If Moffat revises, or does not confirm the availability or the price of a good, the Customer may cancel its order for that good.
2.2 The Customer may elect to collect the good(s) it orders, or to have them delivered to a nominated delivery address. A fee may apply (see clauses 3, 6 and 8 below).
2.3 The Site may contain typographical errors or other errors or inaccuracies and may not be complete or current. Moffat reserves the right to correct any errors, inaccuracies or omissions and to change or update information at any time without notice. Moffat reserves the right to refuse to fill any orders that the Customer may have placed based on information on the Site that may contain errors or inaccuracies, including, without limitation, errors, inaccuracies or out-of-date information regarding pricing, shipping, payment terms, or return policies.
2.4 When the Customer places an online order to purchase good(s), Moffat will send the Customer an e-mail confirming receipt of its order and containing the details of its order (Order Confirmation E-mail). The Order Confirmation E-mail is acknowledgement that Moffat has received the Customer’s order, and does not confirm acceptance of the offer to buy the good(s) ordered. Moffat only accepts the Customer’s offer, and concludes the contract of sale for good(s) ordered by the Customer, when Moffat has processed the order and issued a sales invoice to the Customer (Customer Invoice E-mail).
2.5 The Customer consents to receive sales invoices electronically for online orders. Electronic invoices will be emailed to the email address provided by the Customer in relation to the order.
2.6 Moffat may reject all or any part of an order without liability to the Customer for that rejection if:
(a) a good in that order is not available;
(b) there is an error in the price or the description of the good posted on the Site;
(c) the order triggers fraud prevention protocols; or
(d) Moffat believes that to do so is otherwise necessary or expedient
2.7 If Moffat rejects an order placed through the Site, then it will endeavor to notify the Customer of that rejection at the time the order is placed or within a reasonable time after the order is placed.
2.8 Each order placed for good(s) through the Site that Moffat accepts results in a separate binding agreement between the Customer and Moffat for the supply of those good(s).
2.9 For each order accepted by Moffat, Moffat will supply the good(s) in that order to the Customer in accordance with these Contract Terms.
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 Customer, 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.
4.1 Payment is to be made on Goods sold by Moffat within 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 All payments by the Customer to Moffat shall be made in full, free of any deduction, setoff, counterclaim or legal or equitable claim howsoever arising.
4.3 Moffat may request the Customer to pay a minimum deposit to Moffat of 25% of the purchase price for Goods that are not spare parts. Deposits placed on custom orders or indent orders may be forfeited on cancellation of order
4.4 In the event of default by the Customer under clause 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 Customer to Moffat.
4.5 Without prejudice to any other remedy, Moffat may charge the Customer interest on any overdue amounts at a rate of 2% per annum above the overdraft rate for the time being charged by Moffat’s trading bank calculated and compounded on a daily basis from the due date until the payment is made in full.
4.6 Moffat currently accepts payment by:
(a) cash, Visa, MasterCard, direct debit, cheque or financing for orders placed in store; and
(b) Visa and MasterCard for orders placed online.
4.7 The Customer authorises Moffat to debit the amount that is payable in respect of an accepted order in accordance with the Customer’s nominated payment method.
4.8 The Customer must not pay, or attempt to pay, for a good using any fraudulent or unlawful means.
4.9 The Customer’s nominated payment method may trigger fraud prevention protocols. If this occurs, Moffat may contact the Customer to confirm additional details, or cancel the transaction.
4.10 To the extent permitted by law, Moffat (and its assignees) exclude all liability for any loss or damage suffered or incurred by the Customer (whether directly or indirectly) where a credit card is used fraudulently or in an unauthorised manner.
4.11 If the Customer fails to make any payment due under these Contract Terms by the due date for payment, then Moffat may, without limiting its other rights in respect of such default:
(a) Stop delivery of the Goods;
(b) Charge interest on the amount unpaid at the 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 payment is made in full; or
(c) Sell the Goods at such price and on such terms as Moffat shall determine in which case the Customer will be liable to pay to Moffat any difference between the amount received from such sale and the amount payable under these Contract Terms.
5.1 If Moffat, in its absolute discretion, decides that the credit worthiness of the Customer has become unsatisfactory, Moffat may on written notice to the Customer:
(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.
5.2 Notwithstanding any credit period allowed by Moffat to the Customer, full payment shall become immediately due and payable upon the Customer becoming insolvent or, if the Customer resolves to wind up, or is ordered to be wound up, or has a receiver or liquidator appointed in respect of all or any of its assets.
6.1 Moffat will endeavour to deliver or supply the Goods or services to the address stated within New Zealand only on the order or otherwise complete the contract within the time agreed or within a reasonable time (in the absence of agreement).
6.2 Moffat shall deliver the Goods by such carrier and such form of transport that Moffat considers to be appropriate. Moffat shall not be liable for any damage, loss or injury caused to the Customer arising from the packaging of any Goods.
6.3 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 Customer’s responsibility unless otherwise expressly agreed in writing; and
(c) in the case of Goods sold for delivery ex works - when the Goods are delivered to the carrier.
6.4 Unless otherwise agreed, spare parts will be delivered by air freight or courier at the Customer’s expense.
6.5 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.
6.6 Either party may suspend its obligations (other than an obligation to pay money) under 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 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.
7.1 Moffat reserves the right to withhold supply to the Customer if the Customer 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 Customer to cancel the balance of the contract. Exercise of these rights does not entitle the Customer to terminate any contract with Moffat or claim any loss or damage.
8.1 Where Moffat is to install, start up or commission the Goods, the Customer 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 Customer 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.
9.1 The risk in the Goods passes to the Customer when the Goods 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 Goods sold under these Contract Terms; 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 that 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 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 Goods supplied under these Contract Terms remain vested in Moffat and do not pass to the Customer;
(b) the Customer 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 Customer must not sell the Goods 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 Goods 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 Part 9 of the PPSA, Moffat may, at any time, demand the return of the Goods and shall be entitled without notice to the Customer and without liability to the Customer, 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 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 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 Part 9 of the PPSA, this clause 9.4(e) prevails.
(f) the Customer acknowledges and warrants that Moffat has a security interest (for the purposes of the PPSA) 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 Customer obtains possession of the Goods 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 Customer warrants that it does not intend to use the Goods predominantly for personal, domestic or household purposes.
9.6 The Customer 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.
10.1 Unless a contrary intention appears, words or expressions used in this clause 10 that are defined in the PPSA have the same meaning as given to them in the PPSA.
10.2 Until full payment has been received for the Customer’s order, the Customer acknowledges and agrees that:
(a) these Contract Terms constitute a security agreement for the purposes of section 36 of the PPSA; and
(b) a security interest is taken in all products previously supplied by Moffat to the Customer (if any) and all Goods that will be supplied in the future by Moffat to the Customer (if any).
10.3 The Customer undertakes to:
(a) sign any further documents and provide any further information which the Customer may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
(b) indemnify Moffat for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any item charged thereby;
(c) not register a financing change statement or a change demand on the Personal Property Securities Register without Moffat’s prior written consent; and
(d) give Moffat not less than 14 days’ prior written notice of any proposed change in the Customer’s name or any of the Customer’s contact details.
10.4 The Customer agrees that nothing in sections 114(1)(a), 117(1)(c), 133 and 134 of the PPSA will apply to these Contract Terms.
10.5 The Customer waives its right to:
(a) receive a statement of account under section 116 of the PPSA;
(b) recover surplus under section 119 of the PPSA;
(c) object to any proposal by Moffat to retain collateral under section 120(2) of the PPSA;
(d) object to any proposal by Moffat to retain any Personal Property under section 121 of the PPSA;
(e) not have Goods damaged when Moffat removes an accession under section 125 of the PPSA;
(f) whatever rights can be contracted out of pursuant to sections 107(2)(f) and (g) of the PPSA;
(g) receive notice of the removal of an accession under section 129 of the PPSA;
(h) apply to the Court for an order concerning the removal of an accession under section 131 of the PPSA;
(i) redeem any personal property under section 132 of the PPSA; and
(j) receive a copy of the verification statement confirming registration of a financing statement or a financing change statement relating to the security interest created by these Contract Terms.
10.6 Neither party will disclose to a person or entity that is not a party to these Contract Terms information of the kind mentioned in section 177 of the PPSA unless section 177(2) of the PPSA applies or that information is publicly available.
With the exception of a return pursuant to the Consumer Guarantees Act:
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 Customer delivers Goods for return to Moffat and if Moffat accepts the return of those Goods, the Customer 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 within 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 delivering or installing those Goods.
11.4 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 Customer with an estimate of the testing fee prior to undertaking the testing.
11.5 Where Moffat rejects the claim for credit for Goods returned, and advises the Customer accordingly, Moffat will, unless requested to return the Goods at the Customer’s expense within 7 days of notification of the claim being rejected, dispose of the items on behalf of the Customer.
12.1 Where the Customer delivers Goods to Moffat as a trade–in, the risk of any loss or damage to those Goods remains with the Customer 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.
13.1 Moffat will invoice the Customer 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 Customer, the Customer 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 Customer for the sale price of those Goods.
14.1 Prior to Moffat’s acceptance of any order, the Customer 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 Customer fails to inform Moffat of such requirements, the Customer 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.
15.2 Moffat may charge the Customer an engineering test fee where any Goods returned for testing, subsequently pass all applicable tests. If requested by the Customer, Moffat will provide an estimate of the fees likely to be incurred prior to undertaking the testing.
15.3 Moffat shall be under no liability to the Customer in respect of any damage, loss or injury suffered by the Customer as a result of such testing.
16.1 Without prejudice to any other remedy, if the Customer 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 Customer, or the Customer has a receiver appointed over any of its property, Moffat may treat any contract with the Customer 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 Customer, 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 Customer 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 Customer 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 Customer,
except to the extent that the loss is caused directly by Moffat’s gross negligence or fraud or a defect in the Goods.
17.1 The Customer shall advise Moffat in writing of any claims:
(a) for loss or damage – within 14 days of receipt; and
(b) for non–delivery or a shortfall in delivery – within 7 days of agreed or reasonable delivery.
17.2 Moffat will advise the Customer 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 Customer for the value of the rejected claim
18.1 The Customer acknowledges and agrees that 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 The Customer shall ensure that any Goods ordered are fit and suitable for the purpose for which they are required and Moffat is under no liability if they are not. Moffat shall be under no liability to the Customer in respect of the description, quality, fitness for any purpose of the Goods and all terms, conditions and warranties in respect of such description, quality or fitness, whether statutory or otherwise, and whether express or implied, are hereby expressly excluded.
19.2 The Customer acknowledges and agrees that where any Goods are ordered for business purposes (as that term is defined in the Consumer Guarantees Act) the provisions of the Consumer Guarantees Act will not apply.
19.3 Where the Consumer Guarantees Act applies to these Contract Terms and to the fullest 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.
19.4 Subject to clause 19.3, the liability of Moffat in respect of any breach of or failure to comply with the Consumer Guarantees Act 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; and
(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.
19.4 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 this Site from time to time.
20.1 All drawings and specifications obtained by the Customer from Moffat or its employees or agents remain Moffat’s property.
20.2 The Customer 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.
21.1 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 Customer must supply Moffat with its GST number.
21.3 Any reference in this clause to “GST”, “taxable supply” and “tax invoice” has the meaning given to those expressions in the Goods and Services Tax Act 1985.
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.
23.1 The information contained in this website is for general information purposes only.
23.2 The information is provided by Moffat and while Moffat endeavours to keep the information up-to-date and correct, Moffat makes no representations or warranties of any kind, express or implied, about the completeness, accuracy, reliability, suitability or availability with respect to the Site or the information, products, services, or related graphics contained on the Site for any purpose. Any reliance that the Customer places on such information is therefore strictly at the Customer’s own risk.
23.3 Every effort is made to keep the Site up and running smoothly. However, Moffat takes no responsibility for, and will not be liable for, the Site being unavailable due to technical issues beyond Moffat's control.
23.4 To the extent permitted by law, but subject to clause 19, Moffat does not accept responsibility for any loss or damage, however caused (including through negligence), which the Customer may suffer or incur (directly or indirectly) in connection with its use of the Site or any linked website, nor does Moffat accept any responsibility for any such loss arising out of the Customer’s use of or reliance on the services or the information contained on or accessed through the Site.
23.5 The Customer is responsible for protecting its own computer systems. Moffat is not liable to the Customer or to anyone else if interference with or damage to the Customer’s computer systems occurs in connection with the Customer’s use of the Site.
24.1 The Site may link the Customer to other websites on the internet. These other websites are not under Moffat's control and the Customer acknowledges that Moffat is not responsible for the accuracy, copyright compliance, legality, decency, or any other aspect of the content of such websites. The inclusion of such a link does not imply endorsement of the website by Moffat or any association with its operators.
24.2 Accessing any third party website is the Customer’s decision and to the fullest extent permitted by law, Moffat is not responsible or liable to the Customer in any way for:
(a) the Customer’s use of a linked website or any loss or damage incurred arising out of or in connection with such use; and
(b) the content or practices of websites operated by third parties that are linked to Moffat’s website.
25.1 Except where otherwise stated, Moffat owns, is authorised, or has licence rights in all intellectual property rights in the content contained on the Site or the content is owned by the relevant third party. Except as stated on the Site or as otherwise provided by the Copyright Act 1994 or any other applicable law, no part of the Site may otherwise be copied, reproduced, adapted or transmitted in any form by any process without the relevant owner's written consent. Any use of licensed content is subject to these Contract Terms.
25.2 The trademarks, service marks and logos (Trade Marks) used in the Site are Moffat's registered or unregistered Trade Marks or are owned by the identified third party. No Trade Mark may be copied, reproduced, adapted or transmitted in any form without the relevant owner's consent.
26.1 Moffat agrees that it shall:
(a) keep and maintain all Personal Information about the Customer in confidence, using such degree of care as is reasonable to avoid unauthorised access, use or disclosure.
(b) use and disclose Personal Information about the Customer solely and exclusively for the purposes for which the Personal Information, or access to it, is provided pursuant to these Contract Terms and shall not use, sell, distribute or otherwise disclose or make available the Personal Information for Moffat’s own purposes or for the benefit of anyone other than the Customer without the Customer’s prior written consent.
(c) not, directly or indirectly, disclose Personal Information about the Customer to any other person other than its authorised employees and agents, including any subcontractors, outsourcers and delivery agents without the Customer’s prior written consent, or as otherwise to the extent expressly required by applicable law.
26.2 Moffat does not collect or hold any credit card information in respect of an online payment by the Customer in accordance with clause 4.6(b) herein. Before providing credit card details, the Customer will be transferred to a secure server provided by Moffat’s payment service provider. The Customer’s credit card data will be used to complete payment and will be stored securely by Moffat’s payment service provider. The Customer’s credit card data will only be further accessed in the event that an item is short paid, in accordance with these Contract Terms or where Moffat has agreed that a refund to the Customer may be necessary.
27.1 The information and material in the Site (unless otherwise stated) is provided solely for personal use only.
27.2 The Customer agrees that it will not (either itself or through any third party):
(a) use any robot, spider, screen scraper, data aggregation tool or other automatic device or process (Automated Process) to process, monitor, copy or extract any web pages on this website, or any of the information, content or data contained within or accessible through this website, without our prior written permission;
(b) use any Automated Process to aggregate or combine information, content or data contained within or accessible through this website with information, content or data accessible via or sourced from any third party;
(c) use any information on or accessed through this website for any commercial purpose (including but not limited to market research, the provision of pricing estimates or 'shadow shopping') or otherwise (either directly or indirectly) for profit or gain;
(d) use any device, software, process or routine to interfere or attempt to interfere with the proper working of this website or any transaction or process being conducted on or through it;
(e) take any action that imposes an unreasonable or disproportionately large load on the infrastructure of or bandwidth connecting to this website;
(f) reverse engineer, reverse assemble, decompile, or otherwise attempt to discover source code or other arithmetical formula or processes in respect of the software underlying the infrastructure and processes associated with this website;
(g) copy, reproduce, alter, modify, create derivative works, or publicly display, any part of any content from this website without our prior written permission; or
(h) use this website for any other unlawful purpose or activity.
27.3 The Customer agrees that any use of the Site which is not expressed in these Contract Terms is prohibited.
28.1 The Customer may post reviews, comments and other content on the Site and submit suggestions, ideas, comments, questions or other information (Material), as long as it is not illegal, obscene, objectionable, abusive, threatening, defamatory, invasive of privacy, infringing of intellectual property rights, or otherwise injurious to third parties and does not consist of or contain software viruses, political campaigning, commercial solicitation, chain letters, mass mailings or any form of "spam". Moffat reserves the right to remove or edit any Material.
28.2 The Customer must not use a false e-mail address, impersonate any person or entity, or otherwise mislead as to the origin of a card or other content. If the Customer believes that any content on or advertised for sale contains a defamatory statement, or that intellectual property rights are being infringed by an item or information service, please notify Moffat by contacting customer service. Moffat will investigate any such claims and respond accordingly.
28.3 By posting or submitting Material on the Site, the Customer grants to Moffat:
(a) a non-exclusive, royalty-free and fully sub-licensable and transferable licence to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, and display the Material throughout the world in any media; and
(b) the right to use the name that the Customer submits in connection with the Material.
28.4 The Customer agrees that the rights granted above are irrevocable during the entire period of protection of its intellectual property rights associated with the Material. To the extent permitted by law, the Customer agrees to waive its right to be identified as the author of such content and its right to object to derogatory treatment of such content. The Customer agrees to perform all further acts necessary to perfect creation of the above rights, including the execution of any deeds and documents, at Moffat's request.
28.5 The Customer represents and warrants that:
(a) it owns or otherwise control all of the rights to the Material; and
(b) as at the date that the Material is posted:
(i) it is accurate;
(ii) use of the Material will not cause injury to any person or entity (including that the content or material is not defamatory); and
(iii) the Customer will indemnify Moffat against all claims brought by a third party against us arising out of or in connection with the Material.
(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.
29.2 Failure to accept these Contract Terms within seven days of receipt by the Customer of these Contract Terms may result in the immediate withdrawal of Moffat’s offer to supply Goods or services.
30.2 A party must first raise any dispute arising out of or relating to this Agreement by notice in writing to the other party (Dispute Notice).
30.3 The parties must attempt to resolve any dispute or claim through negotiations conducted in good faith.
30.4 If any dispute or claim is not resolved under clause 30.3 within 14 days after the date of the Dispute Notice, then the dispute shall be referred to mediation. If a mediator cannot be agreed upon by the parties within 7 days of notice of reference to mediation being given by a party then a mediator shall appointed by the then Chairperson of LEADR New Zealand Incorporated or the Chairperson’s nominee., The mediator shall conduct the mediation in accordance with guidelines agreed between the parties, or if not agreed within 14 days of the appointment of the mediator, in accordance with the guidelines set by the mediator.
30.5 Each party must bear its own costs in connection with the mediation, and must share the costs of the mediator and mediation process equally.
30.6 If any dispute or claim is not resolved by mediation under clause 30.4 then a party which has complied with the provisions of clauses 30.2 to 30.4 (inclusive) may, by written notice to the other party, require that such dispute be submitted for determination by arbitration to be conducted in accordance with clause 30.7.
30.7 In the event of a submission to arbitration pursuant to clause 30.6, the arbitration shall be conducted by a single arbitrator to be agreed upon between the parties, and failing agreement within 7 days, then to be appointed by the President (or his or her nominee) for the time being of the New Zealand Law Society (or its successor). Such arbitration shall be conducted in accordance with the Arbitration Act 1996.
30.8 This clause will continue to apply to the parties even after expiration or termination of this Agreement.
30.9 The provisions of this clause shall not limit or effect the rights of either party to apply to the court at any time for any interim or preliminary relief in respect of a dispute.
31.1 This contract shall be governed by the laws of New Zealand, and the Customer submits to the exclusive jurisdiction of the Courts of New Zealand.
32.1 These Contract Terms record the entire agreement concerning the supply of Goods and services between the parties and supersede any prior agreements, undertakings, or representations with respect thereto.
33.1 In these Contract Terms the following words will (unless the context otherwise requires) have the following meanings:
(a) “Business Days” means a day on which registered banks are open for business in Christchurch, New Zealand, excluding Saturdays, Sundays and public holidays;
(b) "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;
(c) "Consumer Guarantees Act" means the Consumer Guarantees Act 1993;
(d) “Customer” means and includes the buyer and any servant, agent, partner, contractor or employee of that person;
(e) “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 the Customer);
(f) “Moffat” includes all Moffat’s employees and agents;
(g) “Personal Information” means information provided by the Customer to Moffat or to which access was provided to Moffat by or at the direction of the Customer that (i) identifies or can be used to identify an individual (including names, signatures, addresses, telephone numbers, email addresses and other unique identifiers); or (ii) can be used to authenticate an individual (including passwords or PINs, financial account numbers, credit report information or other personal identifiers);
(h) “PPSA” means the Personal Property Securities Act 1999’
(i) a reference to “including” means “including without limitation”;
(j) any agreement, warranty, representation or obligation which binds or benefits 2 or more persons, binds or benefits those persons jointly and severally; and
(k) “$” or “dollars” is a reference to the lawful currency of New Zealand.
The supply of Goods or services by Moffat Limited (Moffat) within New Zealand to you (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 Customer that Moffat is not capable of excluding, restricting or modifying.
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 Any condition contained in the Customer’s order which is inconsistent with, qualifies or is contrary to these Contract Terms shall be of no effect.
1.5 Any variation, waiver or cancellation of the Customer’s order shall be of no effect unless accepted in writing by Moffat in which case the Customer will forfeit any payment made in advance.
1.6 Where the Customer and Moffat agree to variation in the quantity of the Goods, the Goods shall be priced at the rate applicable to the original quantity or the revised quantity at the absolute discretion of Moffat.
1.7 Where the Customer enters into these Contract Terms as agent for a third party, the Customer remains personally liable to Moffat for all obligations pursuant to these Contract Terms until the third party has ratified these Contract Terms and given notice in writing of that ratification to Moffat and, if required, given a registerable charge over the Goods in favour of Moffat.
1.8 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.
1.9 The Customer may order goods sold by Moffat (Goods) by selecting them and submitting an order through our website (Site). The Site includes all web pages under or forming part of the domain name www.moffat.co.nz. By placing an order for good(s) through the Site the Customer agrees to these Contract Terms in addition to any terms of use that may be applicable to the Site.
1.10 Online sales can only be made to customers domiciled in New Zealand.
2. QUOTATIONS AND ORDERS
2.1 Any order for a good placed through the Site is an offer by the Customer to purchase a particular good for the price shown on the Site at the time the Customer places the order. All orders are subject to confirmation of the availability and price of each good. If Moffat revises, or does not confirm the availability or the price of a good, the Customer may cancel its order for that good.
2.2 The Customer may elect to collect the good(s) it orders, or to have them delivered to a nominated delivery address. A fee may apply (see clauses 3, 6 and 8 below).
2.3 The Site may contain typographical errors or other errors or inaccuracies and may not be complete or current. Moffat reserves the right to correct any errors, inaccuracies or omissions and to change or update information at any time without notice. Moffat reserves the right to refuse to fill any orders that the Customer may have placed based on information on the Site that may contain errors or inaccuracies, including, without limitation, errors, inaccuracies or out-of-date information regarding pricing, shipping, payment terms, or return policies.
2.4 When the Customer places an online order to purchase good(s), Moffat will send the Customer an e-mail confirming receipt of its order and containing the details of its order (Order Confirmation E-mail). The Order Confirmation E-mail is acknowledgement that Moffat has received the Customer’s order, and does not confirm acceptance of the offer to buy the good(s) ordered. Moffat only accepts the Customer’s offer, and concludes the contract of sale for good(s) ordered by the Customer, when Moffat has processed the order and issued a sales invoice to the Customer (Customer Invoice E-mail).
2.5 The Customer consents to receive sales invoices electronically for online orders. Electronic invoices will be emailed to the email address provided by the Customer in relation to the order.
2.6 Moffat may reject all or any part of an order without liability to the Customer for that rejection if:
(a) a good in that order is not available;
(b) there is an error in the price or the description of the good posted on the Site;
(c) the order triggers fraud prevention protocols; or
(d) Moffat believes that to do so is otherwise necessary or expedient
2.7 If Moffat rejects an order placed through the Site, then it will endeavor to notify the Customer of that rejection at the time the order is placed or within a reasonable time after the order is placed.
2.8 Each order placed for good(s) through the Site that Moffat accepts results in a separate binding agreement between the Customer and Moffat for the supply of those good(s).
2.9 For each order accepted by Moffat, Moffat will supply the good(s) in that order to the Customer in accordance with these Contract Terms.
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 Customer, 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 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 All payments by the Customer to Moffat shall be made in full, free of any deduction, setoff, counterclaim or legal or equitable claim howsoever arising.
4.3 Moffat may request the Customer to pay a minimum deposit to Moffat of 25% of the purchase price for Goods that are not spare parts. Deposits placed on custom orders or indent orders may be forfeited on cancellation of order
4.4 In the event of default by the Customer under clause 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 Customer to Moffat.
4.5 Without prejudice to any other remedy, Moffat may charge the Customer interest on any overdue amounts at a rate of 2% per annum above the overdraft rate for the time being charged by Moffat’s trading bank calculated and compounded on a daily basis from the due date until the payment is made in full.
4.6 Moffat currently accepts payment by:
(a) cash, Visa, MasterCard, direct debit, cheque or financing for orders placed in store; and
(b) Visa and MasterCard for orders placed online.
4.7 The Customer authorises Moffat to debit the amount that is payable in respect of an accepted order in accordance with the Customer’s nominated payment method.
4.8 The Customer must not pay, or attempt to pay, for a good using any fraudulent or unlawful means.
4.9 The Customer’s nominated payment method may trigger fraud prevention protocols. If this occurs, Moffat may contact the Customer to confirm additional details, or cancel the transaction.
4.10 To the extent permitted by law, Moffat (and its assignees) exclude all liability for any loss or damage suffered or incurred by the Customer (whether directly or indirectly) where a credit card is used fraudulently or in an unauthorised manner.
4.11 If the Customer fails to make any payment due under these Contract Terms by the due date for payment, then Moffat may, without limiting its other rights in respect of such default:
(a) Stop delivery of the Goods;
(b) Charge interest on the amount unpaid at the 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 payment is made in full; or
(c) Sell the Goods at such price and on such terms as Moffat shall determine in which case the Customer will be liable to pay to Moffat any difference between the amount received from such sale and the amount payable under these Contract Terms.
5. VARIATION OF TERMS OF PAYMENT
5.1 If Moffat, in its absolute discretion, decides that the credit worthiness of the Customer has become unsatisfactory, Moffat may on written notice to the Customer:
(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.
5.2 Notwithstanding any credit period allowed by Moffat to the Customer, full payment shall become immediately due and payable upon the Customer becoming insolvent or, if the Customer resolves to wind up, or is ordered to be wound up, or has a receiver or liquidator appointed in respect of all or any of its assets.
6. COMPLETION AND DELIVERY
6.1 Moffat will endeavour to deliver or supply the Goods or services to the address stated within New Zealand only on the order or otherwise complete the contract within the time agreed or within a reasonable time (in the absence of agreement).
6.2 Moffat shall deliver the Goods by such carrier and such form of transport that Moffat considers to be appropriate. Moffat shall not be liable for any damage, loss or injury caused to the Customer arising from the packaging of any Goods.
6.3 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 Customer’s responsibility unless otherwise expressly agreed in writing; and
(c) in the case of Goods sold for delivery ex works - when the Goods are delivered to the carrier.
6.4 Unless otherwise agreed, spare parts will be delivered by air freight or courier at the Customer’s expense.
6.5 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.
6.6 Either party may suspend its obligations (other than an obligation to pay money) under 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 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 Customer if the Customer 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 Customer to cancel the balance of the contract. Exercise of these rights does not entitle the Customer 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 Customer 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 Customer 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 Customer when the Goods 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 Goods sold under these Contract Terms; 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 that 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 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 Goods supplied under these Contract Terms remain vested in Moffat and do not pass to the Customer;
(b) the Customer 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 Customer must not sell the Goods 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 Goods 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 Part 9 of the PPSA, Moffat may, at any time, demand the return of the Goods and shall be entitled without notice to the Customer and without liability to the Customer, 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 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 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 Part 9 of the PPSA, this clause 9.4(e) prevails.
(f) the Customer acknowledges and warrants that Moffat has a security interest (for the purposes of the PPSA) 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 Customer obtains possession of the Goods 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 Customer warrants that it does not intend to use the Goods predominantly for personal, domestic or household purposes.
9.6 The Customer 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. PPSA
10.1 Unless a contrary intention appears, words or expressions used in this clause 10 that are defined in the PPSA have the same meaning as given to them in the PPSA.
10.2 Until full payment has been received for the Customer’s order, the Customer acknowledges and agrees that:
(a) these Contract Terms constitute a security agreement for the purposes of section 36 of the PPSA; and
(b) a security interest is taken in all products previously supplied by Moffat to the Customer (if any) and all Goods that will be supplied in the future by Moffat to the Customer (if any).
10.3 The Customer undertakes to:
(a) sign any further documents and provide any further information which the Customer may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
(b) indemnify Moffat for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any item charged thereby;
(c) not register a financing change statement or a change demand on the Personal Property Securities Register without Moffat’s prior written consent; and
(d) give Moffat not less than 14 days’ prior written notice of any proposed change in the Customer’s name or any of the Customer’s contact details.
10.4 The Customer agrees that nothing in sections 114(1)(a), 117(1)(c), 133 and 134 of the PPSA will apply to these Contract Terms.
10.5 The Customer waives its right to:
(a) receive a statement of account under section 116 of the PPSA;
(b) recover surplus under section 119 of the PPSA;
(c) object to any proposal by Moffat to retain collateral under section 120(2) of the PPSA;
(d) object to any proposal by Moffat to retain any Personal Property under section 121 of the PPSA;
(e) not have Goods damaged when Moffat removes an accession under section 125 of the PPSA;
(f) whatever rights can be contracted out of pursuant to sections 107(2)(f) and (g) of the PPSA;
(g) receive notice of the removal of an accession under section 129 of the PPSA;
(h) apply to the Court for an order concerning the removal of an accession under section 131 of the PPSA;
(i) redeem any personal property under section 132 of the PPSA; and
(j) receive a copy of the verification statement confirming registration of a financing statement or a financing change statement relating to the security interest created by these Contract Terms.
10.6 Neither party will disclose to a person or entity that is not a party to these Contract Terms information of the kind mentioned in section 177 of the PPSA unless section 177(2) of the PPSA applies or that information is publicly available.
11. CANCELLATION AND RETURNS
With the exception of a return pursuant to the Consumer Guarantees Act:
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 Customer delivers Goods for return to Moffat and if Moffat accepts the return of those Goods, the Customer 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 within 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 delivering or installing those Goods.
11.4 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 Customer with an estimate of the testing fee prior to undertaking the testing.
11.5 Where Moffat rejects the claim for credit for Goods returned, and advises the Customer accordingly, Moffat will, unless requested to return the Goods at the Customer’s expense within 7 days of notification of the claim being rejected, dispose of the items on behalf of the Customer.
12. TRADE IN EQUIPMENT
12.1 Where the Customer delivers Goods to Moffat as a trade–in, the risk of any loss or damage to those Goods remains with the Customer 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 Customer 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 Customer, the Customer 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 Customer for the sale price of those Goods.
14. CUSTOMER’S REQUIREMENTS
14.1 Prior to Moffat’s acceptance of any order, the Customer 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 Customer fails to inform Moffat of such requirements, the Customer 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 Customer shall supply any materials required for those tests or the commissioning of those Goods. The Customer shall bear the costs of any additional tests required by it. The Customer must provide Moffat with a copy of any report obtained in relation to those additional tests.15.2 Moffat may charge the Customer an engineering test fee where any Goods returned for testing, subsequently pass all applicable tests. If requested by the Customer, Moffat will provide an estimate of the fees likely to be incurred prior to undertaking the testing.
15.3 Moffat shall be under no liability to the Customer in respect of any damage, loss or injury suffered by the Customer as a result of such testing.
16. CUSTOMER’S DEFAULT AND INDEMNITY
16.1 Without prejudice to any other remedy, if the Customer 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 Customer, or the Customer has a receiver appointed over any of its property, Moffat may treat any contract with the Customer 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 Customer, 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 Customer 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 Customer 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 Customer,
except to the extent that the loss is caused directly by Moffat’s gross negligence or fraud or a defect in the Goods.
17. CLAIMS
17.1 The Customer shall advise Moffat in writing of any claims:
(a) for loss or damage – within 14 days of receipt; and
(b) for non–delivery or a shortfall in delivery – within 7 days of agreed or reasonable delivery.
17.2 Moffat will advise the Customer 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 Customer for the value of the rejected claim
18. DURABILITY
18.1 The Customer acknowledges and agrees that 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 The Customer shall ensure that any Goods ordered are fit and suitable for the purpose for which they are required and Moffat is under no liability if they are not. Moffat shall be under no liability to the Customer in respect of the description, quality, fitness for any purpose of the Goods and all terms, conditions and warranties in respect of such description, quality or fitness, whether statutory or otherwise, and whether express or implied, are hereby expressly excluded.
19.2 The Customer acknowledges and agrees that where any Goods are ordered for business purposes (as that term is defined in the Consumer Guarantees Act) the provisions of the Consumer Guarantees Act will not apply.
19.3 Where the Consumer Guarantees Act applies to these Contract Terms and to the fullest 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.
19.4 Subject to clause 19.3, the liability of Moffat in respect of any breach of or failure to comply with the Consumer Guarantees Act 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; and
(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.
19.4 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 this Site from time to time.
20. RETURN OF DRAWINGS
20.1 All drawings and specifications obtained by the Customer from Moffat or its employees or agents remain Moffat’s property.
20.2 The Customer 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 Customer must supply Moffat with its GST number.
21.3 Any reference in this clause to “GST”, “taxable supply” and “tax invoice” has the meaning given to those expressions in the Goods and Services Tax Act 1985.
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. SITE DISCLAIMER
23.1 The information contained in this website is for general information purposes only.
23.2 The information is provided by Moffat and while Moffat endeavours to keep the information up-to-date and correct, Moffat makes no representations or warranties of any kind, express or implied, about the completeness, accuracy, reliability, suitability or availability with respect to the Site or the information, products, services, or related graphics contained on the Site for any purpose. Any reliance that the Customer places on such information is therefore strictly at the Customer’s own risk.
23.3 Every effort is made to keep the Site up and running smoothly. However, Moffat takes no responsibility for, and will not be liable for, the Site being unavailable due to technical issues beyond Moffat's control.
23.4 To the extent permitted by law, but subject to clause 19, Moffat does not accept responsibility for any loss or damage, however caused (including through negligence), which the Customer may suffer or incur (directly or indirectly) in connection with its use of the Site or any linked website, nor does Moffat accept any responsibility for any such loss arising out of the Customer’s use of or reliance on the services or the information contained on or accessed through the Site.
23.5 The Customer is responsible for protecting its own computer systems. Moffat is not liable to the Customer or to anyone else if interference with or damage to the Customer’s computer systems occurs in connection with the Customer’s use of the Site.
24. THIRD PARTY WEBSITES
24.1 The Site may link the Customer to other websites on the internet. These other websites are not under Moffat's control and the Customer acknowledges that Moffat is not responsible for the accuracy, copyright compliance, legality, decency, or any other aspect of the content of such websites. The inclusion of such a link does not imply endorsement of the website by Moffat or any association with its operators.
24.2 Accessing any third party website is the Customer’s decision and to the fullest extent permitted by law, Moffat is not responsible or liable to the Customer in any way for:
(a) the Customer’s use of a linked website or any loss or damage incurred arising out of or in connection with such use; and
(b) the content or practices of websites operated by third parties that are linked to Moffat’s website.
25. COPYRIGHT AND TRADE MARKS
25.1 Except where otherwise stated, Moffat owns, is authorised, or has licence rights in all intellectual property rights in the content contained on the Site or the content is owned by the relevant third party. Except as stated on the Site or as otherwise provided by the Copyright Act 1994 or any other applicable law, no part of the Site may otherwise be copied, reproduced, adapted or transmitted in any form by any process without the relevant owner's written consent. Any use of licensed content is subject to these Contract Terms.
25.2 The trademarks, service marks and logos (Trade Marks) used in the Site are Moffat's registered or unregistered Trade Marks or are owned by the identified third party. No Trade Mark may be copied, reproduced, adapted or transmitted in any form without the relevant owner's consent.
26. USE OF CUSTOMER DATA
26.1 Moffat agrees that it shall:
(a) keep and maintain all Personal Information about the Customer in confidence, using such degree of care as is reasonable to avoid unauthorised access, use or disclosure.
(b) use and disclose Personal Information about the Customer solely and exclusively for the purposes for which the Personal Information, or access to it, is provided pursuant to these Contract Terms and shall not use, sell, distribute or otherwise disclose or make available the Personal Information for Moffat’s own purposes or for the benefit of anyone other than the Customer without the Customer’s prior written consent.
(c) not, directly or indirectly, disclose Personal Information about the Customer to any other person other than its authorised employees and agents, including any subcontractors, outsourcers and delivery agents without the Customer’s prior written consent, or as otherwise to the extent expressly required by applicable law.
26.2 Moffat does not collect or hold any credit card information in respect of an online payment by the Customer in accordance with clause 4.6(b) herein. Before providing credit card details, the Customer will be transferred to a secure server provided by Moffat’s payment service provider. The Customer’s credit card data will be used to complete payment and will be stored securely by Moffat’s payment service provider. The Customer’s credit card data will only be further accessed in the event that an item is short paid, in accordance with these Contract Terms or where Moffat has agreed that a refund to the Customer may be necessary.
27. USE OF SITE INFORMATION
27.1 The information and material in the Site (unless otherwise stated) is provided solely for personal use only.
27.2 The Customer agrees that it will not (either itself or through any third party):
(a) use any robot, spider, screen scraper, data aggregation tool or other automatic device or process (Automated Process) to process, monitor, copy or extract any web pages on this website, or any of the information, content or data contained within or accessible through this website, without our prior written permission;
(b) use any Automated Process to aggregate or combine information, content or data contained within or accessible through this website with information, content or data accessible via or sourced from any third party;
(c) use any information on or accessed through this website for any commercial purpose (including but not limited to market research, the provision of pricing estimates or 'shadow shopping') or otherwise (either directly or indirectly) for profit or gain;
(d) use any device, software, process or routine to interfere or attempt to interfere with the proper working of this website or any transaction or process being conducted on or through it;
(e) take any action that imposes an unreasonable or disproportionately large load on the infrastructure of or bandwidth connecting to this website;
(f) reverse engineer, reverse assemble, decompile, or otherwise attempt to discover source code or other arithmetical formula or processes in respect of the software underlying the infrastructure and processes associated with this website;
(g) copy, reproduce, alter, modify, create derivative works, or publicly display, any part of any content from this website without our prior written permission; or
(h) use this website for any other unlawful purpose or activity.
27.3 The Customer agrees that any use of the Site which is not expressed in these Contract Terms is prohibited.
28. REVIEWS, COMMENTS, COMMUNICATIONS AND OTHER CONTENT
28.1 The Customer may post reviews, comments and other content on the Site and submit suggestions, ideas, comments, questions or other information (Material), as long as it is not illegal, obscene, objectionable, abusive, threatening, defamatory, invasive of privacy, infringing of intellectual property rights, or otherwise injurious to third parties and does not consist of or contain software viruses, political campaigning, commercial solicitation, chain letters, mass mailings or any form of "spam". Moffat reserves the right to remove or edit any Material.
28.2 The Customer must not use a false e-mail address, impersonate any person or entity, or otherwise mislead as to the origin of a card or other content. If the Customer believes that any content on or advertised for sale contains a defamatory statement, or that intellectual property rights are being infringed by an item or information service, please notify Moffat by contacting customer service. Moffat will investigate any such claims and respond accordingly.
28.3 By posting or submitting Material on the Site, the Customer grants to Moffat:
(a) a non-exclusive, royalty-free and fully sub-licensable and transferable licence to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, and display the Material throughout the world in any media; and
(b) the right to use the name that the Customer submits in connection with the Material.
28.4 The Customer agrees that the rights granted above are irrevocable during the entire period of protection of its intellectual property rights associated with the Material. To the extent permitted by law, the Customer agrees to waive its right to be identified as the author of such content and its right to object to derogatory treatment of such content. The Customer agrees to perform all further acts necessary to perfect creation of the above rights, including the execution of any deeds and documents, at Moffat's request.
28.5 The Customer represents and warrants that:
(a) it owns or otherwise control all of the rights to the Material; and
(b) as at the date that the Material is posted:
(i) it is accurate;
(ii) use of the Material will not cause injury to any person or entity (including that the content or material is not defamatory); and
(iii) the Customer will indemnify Moffat against all claims brought by a third party against us arising out of or in connection with the Material.
29. ACCEPTANCE
29.1 Acceptance by the Customer 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.
29.2 Failure to accept these Contract Terms within seven days of receipt by the Customer of these Contract Terms may result in the immediate withdrawal of Moffat’s offer to supply Goods or services.
30. DISPUTES
30.1 The parties must take the steps set out in this clause to resolve any dispute or claim between them arising out of or relating to these Contract Terms.30.2 A party must first raise any dispute arising out of or relating to this Agreement by notice in writing to the other party (Dispute Notice).
30.3 The parties must attempt to resolve any dispute or claim through negotiations conducted in good faith.
30.4 If any dispute or claim is not resolved under clause 30.3 within 14 days after the date of the Dispute Notice, then the dispute shall be referred to mediation. If a mediator cannot be agreed upon by the parties within 7 days of notice of reference to mediation being given by a party then a mediator shall appointed by the then Chairperson of LEADR New Zealand Incorporated or the Chairperson’s nominee., The mediator shall conduct the mediation in accordance with guidelines agreed between the parties, or if not agreed within 14 days of the appointment of the mediator, in accordance with the guidelines set by the mediator.
30.5 Each party must bear its own costs in connection with the mediation, and must share the costs of the mediator and mediation process equally.
30.6 If any dispute or claim is not resolved by mediation under clause 30.4 then a party which has complied with the provisions of clauses 30.2 to 30.4 (inclusive) may, by written notice to the other party, require that such dispute be submitted for determination by arbitration to be conducted in accordance with clause 30.7.
30.7 In the event of a submission to arbitration pursuant to clause 30.6, the arbitration shall be conducted by a single arbitrator to be agreed upon between the parties, and failing agreement within 7 days, then to be appointed by the President (or his or her nominee) for the time being of the New Zealand Law Society (or its successor). Such arbitration shall be conducted in accordance with the Arbitration Act 1996.
30.8 This clause will continue to apply to the parties even after expiration or termination of this Agreement.
30.9 The provisions of this clause shall not limit or effect the rights of either party to apply to the court at any time for any interim or preliminary relief in respect of a dispute.
31. GOVERNING LAW
31.1 This contract shall be governed by the laws of New Zealand, and the Customer submits to the exclusive jurisdiction of the Courts of New Zealand.
32. ENTIRE CONTRACT
32.1 These Contract Terms record the entire agreement concerning the supply of Goods and services between the parties and supersede any prior agreements, undertakings, or representations with respect thereto.
33. INTERPRETATION
33.1 In these Contract Terms the following words will (unless the context otherwise requires) have the following meanings:
(a) “Business Days” means a day on which registered banks are open for business in Christchurch, New Zealand, excluding Saturdays, Sundays and public holidays;
(b) "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;
(c) "Consumer Guarantees Act" means the Consumer Guarantees Act 1993;
(d) “Customer” means and includes the buyer and any servant, agent, partner, contractor or employee of that person;
(e) “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 the Customer);
(f) “Moffat” includes all Moffat’s employees and agents;
(g) “Personal Information” means information provided by the Customer to Moffat or to which access was provided to Moffat by or at the direction of the Customer that (i) identifies or can be used to identify an individual (including names, signatures, addresses, telephone numbers, email addresses and other unique identifiers); or (ii) can be used to authenticate an individual (including passwords or PINs, financial account numbers, credit report information or other personal identifiers);
(h) “PPSA” means the Personal Property Securities Act 1999’
(i) a reference to “including” means “including without limitation”;
(j) any agreement, warranty, representation or obligation which binds or benefits 2 or more persons, binds or benefits those persons jointly and severally; and
(k) “$” or “dollars” is a reference to the lawful currency of New Zealand.
