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MOMA PRODUCTS PTY LTD TERMS AND CONDITIONS OF TRADE
This agreement shall be subject to the provisions of the Trade Practices Act 1974, any statutory amendment or re-enactment thereof and any other corresponding and applicable State and/or Commonwealth legislation for the time being in force (“the Statutory Provisions”).
These terms and conditions shall apply to all Goods sold or supplied by MOMA Products Pty Ltd trading as MOMA Products (“MOMA Products”) to the Customer. “Customer” shall include any person to whom any quotation is made and any person offering to contract with MOMA Products on these terms and conditions and any person who purchases Goods from MOMA Products.
All other warranties and conditions, whether express or implied and whether statutory or otherwise as to Goods supplied by MOMA Products and as to the quality, fitness or suitability for any purpose are hereby excluded except to the extent of non-excludable warranty conditions or liability of MOMA Products provided by the Statutory Provisions.
“Goods” includes services, and “all Goods” means all goods supplied by MOMA Products to the Customer under any contract, arrangement or understanding between MOMA Products and the Customer at any time and from time to time.
Words importing the singular number shall be deemed to include the plural and vice versa. Words importing the male gender shall be deemed to include the female and neuter gender and vice versa.
2.1 Any quotation made by MOMA Products to the Customer from time to time shall not be construed or operate as an offer or obligation to sell but shall be an invitation to treat only and MOMA Products reserves the right to accept or reject in its absolute discretion any order which may be received by it.
2.2 Until such time as MOMA Products accepts in writing a written order submitted by the Customer it shall not be obliged to supply the Goods so ordered to the Customer.
2.3 MOMA Products may refuse any Customer's order at any time for any reason within 30 days of receipt by MOMA Products.
3.1 Prices are subject to change without prior notice.
3.2 All prices are quoted ex-works Perth, WA.
3.3 MOMA Products reserves the right to alter or vary any quotation at any time prior to acceptance. Prices quoted are based upon wage rates, costs of materials, exchange rates, freight costs, taxes, duties and any and all other costs and expenses included in the price of the Goods applicable at the date of quotation or at such other date as may appear in the quotation form and any and all increases thereto prior to the date of invoicing shall be to the account of the Customer and MOMA Products may vary quoted prices accordingly notwithstanding acceptance. If MOMA Products considers it is necessary or appropriate for MOMA Products to vary or suspend work as a result of the Customer's instructions (or lack thereof) any increased costs or expenses will be to the Customer's account.
3.4 MOMA Products reserves the right to vary at will any terms of credit as may exist between MOMA Products and the Customer.
4.1 Payment for Goods sold by MOMA Products to the Customer is before the Goods are dispatched, unless otherwise agreed to in writing by MOMA Products prior to the delivery of the Goods.
4.2 Where credit facilities have been granted to the Customer by MOMA Products, payment shall be made strictly in accordance with all the terms on which the credit facilities were granted.
4.3 Payment shall be deemed to have been made:-
(a) if cash is tendered - on the date it is tendered; and
(b) if a cheque (bank or otherwise) or other negotiable instrument is tendered - on the date upon which such cheque or other negotiable instrument is negotiated and cleared by MOMA Products’ bankers.
4.4 In respect of the Customer's obligation to make payment for Goods sold by MOMA Products to the Customer, time shall be of the essence.
Any payments tendered by the Customer to MOMA Products shall be applied as follows:
(a) Firstly as reimbursement for any legal costs incurred by MOMA Products in accordance with clause 11.10(b) hereof,
(b) Secondly in payment of any interest charged to the Customer in accordance with clause 11.10(a) hereof; and
(c) Thirdly in satisfaction or part satisfaction of the oldest portion of the Customer's account.
6.1 Goods are sold ex-works, Perth, WA.
6.2 If a delivery date is specified MOMA Products will endeavour to deliver within the time so specified but in no circumstances, will MOMA Products be liable for any loss or damage of any kind whatsoever caused directly or indirectly by any delay in or failure of delivery.
6.3 Subject to the provisions of Section 74 of the Trade Practices Act 1974 and to the warranties therein implied where the Customer has made known to MOMA Products the purpose for which services are to be supplied, MOMA Products shall not be liable to any Customer or other party for any direct or indirect or consequential injury loss or damage whatsoever by reason of any delay in delivery whether the same is due to the negligence of MOMA Products or any other party, strike or any other industrial action be it of MOMA Products or other party, or any other cause whatsoever.
6.4 MOMA Products reserves the right to deliver by instalments. If delivery is made by instalments the Customer shall not be entitled:
(a) to terminate or cancel the contract; or
(b) to any loss or damage howsoever arising
for failure by MOMA Products to deliver any instalment on or before the quoted date.
6.5 It is agreed that MOMA Products shall not be responsible for delay in manufacture or delivery caused by, or in any way incidental to an act of God, war, fires, breakages of machinery or strikes or arising out of any other unexpected or exceptional cause, or any cause beyond MOMA Products’ reasonable control.
6.6 Any quotation containing a provision to supply goods ex stock is subject to fulfilment of prior orders at the date of receipt of the Customer's order.
7.1 Goods specially ordered and correctly supplied may not be returned.
7.2 Goods correctly supplied may only be returned with the prior permission of MOMA Products.
7.3 Goods must be returned together with the invoice, within 14 days of the invoice date.
7.4 A handling fee of 10% of the price of the Goods will be charged on returns.
7.5 Please refer to "returns and refunds" tab for online order returns terms and conditions.
The Customer acknowledges that any pallets used for delivery are held by the Customer as bailee, (i.e., on trust).
The Customer agrees to indemnify MOMA Products for any loss arising from any pallet not being returned to MOMA Products in good order and condition within twenty-eight (28) days of delivery.
9.1 Unless otherwise agreed in writing, if MOMA Products is requested to provide services in respect of artwork, including the supply of original blanks, photographic negatives, positives or proofs, screens and moulds, dies, designs, sketches or engravings, then the cost of such items shall go to the account of the Customer and the Customer agrees that the property in such items remains with MOMA Products, and MOMA Products accept responsibility for such items for a maximum period of 12 months from date of invoice therefor.
9.2 Any preliminary work undertaken by MOMA Products at the Customer's request in relation to design or construction or the provision of services in respect of artwork shall be considered an order and MOMA Products may at its discretion, charge the Customer in respect of such work undertaken or services provided.
10.1 Subject to the Statutory Provisions MOMA Products shall not be obliged to recognise nor shall it be responsible in law or in equity for any credit claims pertaining to short or over delivery or claims pertaining to damaged Goods unless the Customer has given written notice to MOMA Products within 7 days of the date on which the goods in question were delivered to or collected by the Customer.
10.2 Should the Customer consider that it has any claim (other than claims of the nature referred to in clause 10.1 hereof) against MOMA Products which having regard to these terms and conditions it is entitled to make, it shall: -
(a) immediately upon becoming aware of circumstances giving rise to such a claim, notify MOMA Products of the nature of the claim; and
(b) allow MOMA Products its servants or agents full and free access to the Goods in relation to which the claim is made (or the place where the Goods have been applied or used) for the purpose of conducting such tests as MOMA Products may in its absolute discretion consider necessary to determine whether the claim is justified or not.
10.3 The Customer acknowledges and agrees with MOMA Products that: -
(a) methods and conditions of application and use of Goods supplied are beyond the control of MOMA Products;
(b) any advice, recommendation, information or service provided by MOMA Products, its employees, servants or agents regarding the Goods sold or the methods and conditions of application and use of the Goods sold shall not (subject to the Statutory Provisions) be construed as contractual conditions or warranties; and
(c) MOMA Products shall not (subject to the Statutory Provisions) be liable to the Customer for any loss or damage sustained by the Customer as a consequence of any incorrect or otherwise negligent advice, recommendation, information or services provided by MOMA Products, its employees servants or agents regarding the Goods sold or the methods or conditions of application and use of the Goods sold.
10.4 Subject to the Statutory Provisions, the total liability of MOMA Products its employees servants and agents is limited to one or the other of the following at the option of MOMA Products:-
(a) the repair or replacement of the Goods supplied or the supply of equivalent Goods; or
(b) the payment of the cost of replacing the Goods or acquiring equivalent Goods
and does not extend to consequential loss or d damage.
Note that MOMA Products are not liable for any costs including third party costs for the removal or re-installation of Goods supplied under this clause.
10.5 Except to the extent of any non-excludable warranty, condition or liability of MOMA Products provided by the Statutory Provisions, MOMA Products shall not be liable for any loss or damage of any kind whatsoever (including injury or death to persons or loss or damage to property) and whether suffered or incurred by the Customer or a third party, person or persons where such loss or damage arises directly or indirectly from Goods supplied by or advice given by MOMA Products and without limitation upon the foregoing provisions of this clause MOMA Products shall not be liable for any consequential loss or damage including without limitation any financial loss or damage.
11.1 the Customer makes default in any payment due hereunder;
11.2 a resolution is passed or proposed, or a petition is presented, or an application filed for the winding up of the Customer;
11.3 a receiver, receiver and manager, controller or trustee is appointed over the assets or any part of the assets of the Customer;
11.4 the Customer makes or proposes to make any arrangement with its Creditors;
11.5 the Customer is placed under official management;
11.6 execution is levied upon the assets of the Customer for an amount in excess of $1,000.00 and is not within seven days satisfied;
11.7 the Customer is or states that it is unable to pay its debts when they fall due;
11.8 the Customer is, or makes a statement from which it may be reasonably deducted by MOMA Products, that the Customer is the subject of an event described in section 459C(2)(a) or (b) or section 585 of the Corporations Law;
11.9 the Customer (being an individual or any member of a partnership of individuals) becomes an insolvent under administration as defined in section 9 of the Corporations Law or action is taken which could result in that event;
11.10 the Customer experiences any analogous event having substantially similar effect to any of the events specified above; then and in any such event MOMA Products may at its option withhold further deliveries or cancel the contract without notice to the Customer without prejudice to any other action or remedy which MOMA Products has or might otherwise have had and in addition MOMA Products may in its absolution discretion -
(a) charge the Customer interest calculated on the portion of the Customer's account overdue from time to time at the rate of 2% per month from the date on which such default arose; and
(b) require the Customer to reimburse MOMA Products for all legal costs incurred by MOMA Products calculated on a solicitor and own client basis as a consequence of MOMA Products instructing its solicitors to provide advice to it in connection with the default and/or to institute such recovery process as shall in the absolute discretion of MOMA Products be appropriate in the circumstances.
(c) enter or cause its employees, servants or agents to enter the premises of the Customer to repossess the Goods.
In the event that the Goods are covered by insurance taken out by MOMA Products, MOMA Products will only be liable to the extent of any indemnity provided.
All Goods shall be at the Customer's risk upon delivery to the Customer, his carrier or agent unless otherwise agreed in writing.
14.1 Title to the Goods shall not pass to the Customer until payment in full for all Goods is made.
14.2 The Customer acknowledges that until full payment is made for all Goods, the Customer holds the Goods as bailee of MOMA Products and that a fiduciary relationship exists between the Customer and MOMA Products.
14.3 Until payment is made for all Goods, the Customer shall store the Goods separately and in such a manner that they are clearly identified as the property of MOMA Products.
14.4 The Customer acknowledges that if it sells any of MOMA Products’ Goods, it sells the Goods as fiduciary agent of MOMA Products provided that such sales shall not give rise to any obligations on the part of MOMA Products.
14.5 The Customer acknowledges that if it sells any of MOMA Products’ Goods prior to making full payment for all Goods, the Customer shall hold the proceeds of sale on trust for MOMA Products, and shall hold the proceeds in a separate account.
In addition to any right of lien to which MOMA Products may by law be entitled MOMA Products shall be entitled to a general lien on all items in MOMA Products’ possession belonging to the Customer for the unpaid price of all Goods.
MOMA Products shall have a right of sale in respect of such items subject to such lien.
MOMA Products at its sole and unfettered discretion at any time and from time to time may set-off any amount owing by MOMA Products to the Customer on any account whatsoever, including any monies held by MOMA Products for or on account of the Customer, whether or not that amount has become due and payable or whether that amount shall be due actually or contingently against any amount owing by the Customer to MOMA Products in respect of Goods supplied by MOMA Products to the Customer whether or not that amount has become due and payable or whether that amount shall be due actually or contingently with the effect that:-
16.1 if the amount owing by MOMA Products exceeds the amount owing by the Customer then MOMA Products may set-off the amount owing by MOMA Products against the amount owing by the Customer and pay to the Customer an amount equal to the difference between those two amounts in full and final satisfaction of the amount owing by MOMA Products.
16.2 if the amount owing by MOMA Products is less than the amount owing by the Customer then MOMA Products may set-off the amount owing by MOMA Products against the amount owing by the Customer and the amount owing by MOMA Products shall be deemed to have been satisfied in full without any payment from MOMA Products to the Customer, and the net amount owing by the Customer to MOMA Products shall forthwith become due and payable.
No waiver by MOMA Products of any one breach of these terms and conditions shall operate as a waiver of another breach of the same or of any other such condition of sale. The doing and/or omission of any act, matter or thing whatsoever by MOMA Products its servants or agents, which, but for this clause ought or might amount to a waiver of MOMA Products’ rights in respect of any such breach or default, shall not operate as, nor be deemed to be a waiver in any way of MOMA Products’ rights and powers in respect of any such breach or default notwithstanding any rule of law or equity to the contrary.
Unless agreed by the Customer and MOMA Products in writing to the contrary, these terms and conditions supersede and exclude all prior and other discussions, representations (contractual or otherwise) and arrangements relating to the supply of goods including, but without limiting the generality of the foregoing, those relating to the performance of the goods or the results that ought to be expected from using the goods.
The Customer named herein hereby irrevocably authorises MOMA Products, its servants and agents to make such inquires as it deems necessary to investigate the credit worthiness of the Customer from time to time including (but not limited to) the making of inquiries with persons nominated as trade referees, the bankers of the Customer or any other credit providers and the Customer hereby authorises the information sources to disclose to MOMA Products such information concerning the Customer which is within their possession and which is requested by MOMA Products.
The parties acknowledge that the contract embodied herein is made in the State of Western Australia and shall be governed by the laws of that State. The parties agree to submit themselves to the exclusive jurisdiction of the Courts of the State of Western Australia.
I, by my signature do hereby bind myself in my private and individual capacity as surety for and co‑principal debtor, in solidium with the Customer for the due and proper compliance of all duties and obligations of the Purchase. This surety shall be a continuing surety which may only be cancelled by the Customer in writing to the Seller and then only provided that all sums then owing by the Customer (whether due or not) to the Seller have been paid in full.