Terms and Conditions of Sale
Effective date: 1st January 2018
The supply of goods (“Goods”) and services (“Services”) Services by Moffat Limited (New Zealand Company No. 647673) (“Moffat”) to any person or entity (each a "Customer") is made on the following terms and conditions (the “Contract Terms”):
1. GENERAL
1.1 These Contract Terms include all those statutory rights conferred on the buyer that Moffat is not capable of excluding, restricting or modifying.
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 buyer 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.
2. QUOTATIONS AND ORDERS
2.1 Unless previously withdrawn by Moffat at any time, a quotation is open for acceptance for a period of thirty (30) days from the date of the quotation after which time it will lapse.
2.2 All orders are subject to written acceptance by Moffat.
3. PRICE
3.1 Unless otherwise stated, all prices charged are ex works.
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 for 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 require 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 placed on Moffat may be forfeited on cancellation of order.
4.4 All export business is conducted on a payment surety basis - either Irrevocable Documentary Letter of Credit (LC) or deposit and documents against receipt of balance
4.5 In the event of default by the Customer under clause 4.1 or 4.2, 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.
4.6 If Moffat grants credit to the Customer, the Customer shall pay all amounts due to Moffat by the 30th of the month following the month of the invoice.
4.7 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;
(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 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 buyer’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 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 Moffat nor the buyer will disclose to a person or entity not a party to a contract between Moffat and the buyer for the supply of Goods on these Contract Terms, information of the kind mentioned in section 177 of the PPSA unless section 177 (2) of the PPSA applies or that information is publicly available.
11. TRADE IN EQUIPMENT
11.1 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.
11.2 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.
12. CHANGEOVER GOODS
12.1 Moffat will invoice the Customer for any Goods supplied on a changeover basis at sale prices at the time of dispatch.
12.2 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.
13. CUSTOMER’S REQUIREMENTS
13.1 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 buyer 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.
14. TESTING
14.1 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.
14.2 Moffat may charge the Customer an engineering test fee where any Goods returned for testing, subsequently pass all applicable tests. If requested, Moffat will provide an estimate of the fees likely to be incurred prior to undertaking the testing.
14.3 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.
15. CUSTOMER’S DEFAULT AND INDEMNITY
15.1 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 buyer, 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.
15.2 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.
15.3 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 any Loss arises due to a defect in the Goods or directly from the gross negligence or fraud of Moffat.
16. CLAIMS
16.1 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.
16.2 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.
17. DURABILITY
17.1 The Customer acknowledges and agrees that 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.
18. WARRANTY AND LIABILITY
18.1 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.
18.2 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.
18.3 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.
18.4 Subject to clause 18.3, 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.
18.5 Any express warranty offered by Moffat with respect to the Goods is offered subject to the terms and conditions set out in such warranty, as published on Moffat's website from time to time.
19. RETURN OF DRAWINGS
19.1 All drawings and specifications obtained by the Customer from Moffat or its employees or agents remain Moffat’s property.
19.2 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.
19.3 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.
20. GOODS AND SERVICES TAX
20.1 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.
20.2 To obtain a valid tax invoice, the buyer must supply Moffat with its GST number.
20.3 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.
21. NO WAIVER
21.1 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.
22. ACCEPTANCE
22.1 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.
22.2 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.
23. DISPUTES
23.1 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.
23.2 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).
23.3 The parties must attempt to resolve any dispute or claim through negotiations conducted in good faith.
23.4 If any dispute or claim is not resolved under clause 23.3 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.
23.5 Each party must bear its own costs in connection with the mediation, and must share the costs of the mediator and mediation process equally.
23.6 If any dispute or claim is not resolved by mediation under clause 23.4 then a party which has complied with the provisions of clauses 23.2 to 23.4 (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 22.7.
23.7 In the event of a submission to arbitration pursuant to clause 23.6, 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.
23.8 This clause will continue to apply to the parties even after expiration or termination of this Agreement.
23.9 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.
24. GOVERNING LAW
24.1 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.
25. ENTIRE CONTRACT
25.1 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.
26. INTERPRETATION
26.1 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.
