TERMS AND CONDITIONS
PLEASE NOTE THE PROVISIONS OF PARAGRAPH 6 BELOW WHICH liMIT MOUSTIQUE PTY LTD’S liABIliTY TO YOU.
1.APPliCATION AND ORDERS
1.1 Subject to any variation made pursuant to paragraph 1.2, each contract between Moustique Pty Ltd (the “Company”) and you (the “Buyer”) for the sale and purchase of the Company’s goods shall be governed by these terms and conditions to the exclusion of all other terms and conditions, including any terms or conditions which the Buyer purports to apply. No terms or conditions endorsed on, delivered with or contained in the Buyer’s purchase order, confirmation of order, specification or other document shall form part of this contract and it is hereby agreed that no collateral contract or any other legal consequence is created thereby
1.3 Each order or acceptance of a quotation for goods by the Buyer shall be deemed to be an offer by the Buyer to purchase the relevant goods from the Company subject to these terms and conditions. Any quotation is valid for a period of 30 days only, provided that the Company has not previously withdrawn the quotation. No order placed by the Buyer shall be deemed to have been accepted by the Company until a written acknowledgement of order is issued by the Company or (if earlier) until the Company delivers the relevant goods to the Buyer. The Buyer shall ensure that the terms of each order (and any applicable specification) are complete and accurate.
1.4 The quantity and description of the goods shall be as set out in the Company’s quotation or acknowledgement of order. All samples, drawings, descriptive matter, specifications and advertising issued by the Company, and any descriptions or illustrations contained in any of the Company’s catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the goods described therein and they shall not form part of the contract between the Company and the Buyer. The Company does not sell by sample.
2. DEliVERY (AND NON-DEliVERY)
2.1 Unless otherwise agreed in writing by the Company, delivery of goods shall take place at the delivery location specified by the Buyer in the relevant order. All deliveries are subject to product and delivery slot availability, any dates specified by the Company for delivery of goods are intended to be an estimate and time for delivery shall not be made of the essence by notice (or otherwise). If no dates for delivery are so specified, delivery shall be made within a reasonable time.
2.2 Subject to these terms, the Company shall not be liable for any direct, indirect or consequential loss (including, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and similar loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the goods, nor shall any delay entitle the Buyer to terminate or rescind the contract between the Company and the Buyer unless such delay exceeds 180 days.
2.3 The Buyer is bound to accept the goods when they are tendered for delivery by the Company. If, for any reason, the Buyer fails to accept delivery of any goods when they are tendered for delivery, or the Company is unable to deliver goods on time because the Buyer has not provided appropriate instructions or information (a) risk in the relevant goods shall pass to the Buyer (b) the goods shall be deemed to have been delivered and (c) the Company may store the goods until delivery, whereupon the Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance costs). The Company shall have no liability as baillee further than that appropriate to an involuntary baillee. The Company may refuse to despatch or deliver goods to the Buyer if it believes the Buyer may be in breach of these terms or that the supply of goods to the Buyer may damage the Company’s reputation or commercial interests.
2.4 The Company may deliver goods to the Buyer in separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions set out herein. Each instalment shall constitute a separate contract and no cancellation or termination of any one contract relating to an instalment shall entitle the Buyer to repudiate or cancel any other contract or instalment.
2.5 The quantity of any consignment of goods as recorded by the Company upon despatch of the relevant goods to the Buyer shall be conclusive evidence of the quantity received by the Buyer on delivery unless the Buyer can provide conclusive evidence proving the contrary. The Company shall not be liable for any non-delivery of goods unless the Buyer gives written notice to the company of the non-delivery within 10 days of the date when the goods would, in the ordinary course of events, have been delivered to the Buyer. Any liability of the Company for the non-delivery of goods shall be limited to replacing the relevant goods or issuing a credit note (at the pro rata contract rate) against any invoice raised in respect of such goods.
3. RISK/TITLE
3.1 All goods delivered by the Company to the Buyer are at the risk of the Buyer from the time of delivery. However, ownership of the goods shall not pass to the Buyer until the Company has received in full (in cash or cleared funds) all sums due to it in respect of the goods and all other sums which are, or which become, due to the Company from the Buyer on any account. On termination of this contract, howsoever caused, the Company’s (but not the Buyer’s) rights contained in this paragraph 3 shall remain in full effect.
3.2 Until ownership of the goods delivered by the Company has passed to the Buyer, the Buyer shall (a) hold the goods on a fiduciary basis as the Company’s bailee (b) store the goods (at no cost to the Company) separately from all other goods of the Buyer or any third party in such a way that they remain readily identifiable as the Company’s property (c) not destroy, deface or obscure any identifying mark or packaging on, or relating to, the goods and (d) maintain the goods in satisfactory condition and keep them insured on the Company’s behalf for their full price and against all risks.
3.3 The Buyer may resell the goods before ownership has passed to it solely on the basis that (a) any sale shall be effected in the ordinary course of the Buyer’s business at full market value and (b) any such sale shall be a sale of the Company’s property on the Buyer’s behalf and the Buyer shall deal as principal when making such a sale.
3.4 The Buyer’s right to possession of the goods shall terminate immediately if (a) the Buyer has a bankruptcy order made against it or makes an arrangement or composition with its creditors or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors or (being a body corporate) convenes a meeting of creditors (whether formal or informal) or enters into liquidation (whether voluntary or compulsory), except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed in respect of its undertaking or any part thereof, or documents are filed with the court for the appointment of an administrator of the Buyer or notice of intention to appoint an administrator is given by the Buyer or (any or all of) its directors or by a holder of a charge whether fixed or floating over the assets or any part of the assets of the Buyer or a resolution is passed or a petition presented to any court for the winding up of the Buyer or for the granting of an administration order in respect of the Buyer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Buyer or (b) the Buyer suffers or allows any execution, whether legal or equitable, to be levied on any of its property or obtained against it, or fails to observe or perform any of its obligations under any contract with the Company, or is unable to pay its debts within the meaning of the Corporations Law 2001 or any successor provisions or the Buyer ceases to trade or (c) the Buyer encumbers, or in any way charges, any of the goods prior to making payment in full in respect of the same.
3.5 The Company shall be entitled to recover payment for any goods it has delivered to the Buyer notwithstanding that ownership of such goods has not passed from the Company. The Buyer hereby grants the Company, its agents and employees an irrevocable and unconditional licence to enter any premises, at any time, where the relevant goods are or may be stored in order to inspect them, or, where the Buyer’s right to possession has terminated, to recover them. Where the Company is unable to determine whether any goods on the Buyer’s premises are the goods in respect of which the Buyer’s right to possession has terminated, the Buyer shall be deemed to have sold all goods of the kind sold by the Company to the Buyer in the order in which they were invoiced to the Buyer.
4. PRICING AND PAYMENT
4.1 Unless otherwise agreed by the Company in writing, prices for its goods shall be the prices set out in the Company’s price list published on the date of delivery or deemed delivery. The price for the goods shall be exclusive of any gst and all costs or charges in relation to packaging, loading, unloading, carriage and insurance which will vary according to the type of goods ordered by the Buyer, and the location of the Buyer, and which the Buyer agrees to pay at the same time as it is due to pay for the goods. The Company does not offer or operate credit terms, unless specifically agreed in writing.
4.2 Payment of the price for goods is due from the Buyer as follows: (a) 50% of the price of the goods is due from the Buyer in Australian dollars immediately on acceptance of the Buyer’s order by the Company (b) the remaining 50% of the price of the goods is due from the Buyer in Australian dollars two days before delivery of the relevant goods. Time for payment shall be of the essence. No payment shall be deemed to have been received until the Company has received cleared funds. All payments due to the Company shall become due immediately on the termination of this contract (notwithstanding any other provision to the contrary).
4.3 The Buyer shall make all payments due to the Company in full without any deduction, whether by way of set-off, counterclaim, discount, abatement or otherwise. If the Buyer fails to pay the Company any sum due pursuant hereto, the Buyer shall be liable to pay interest to the Company on such sum from the due date for payment at the annual rate of 2% above the base rate of the National Australia Bank, compounded on a daily basis until payment is made, whether before or after any judgment.
5. QUAliTY
5.1 The Company warrants that (subject to the other provisions set out herein) upon delivery, the goods shall be of satisfactory quality within the meaning of the Sale of Goods Act 1923 and shall be reasonably fit for their intended purpose/use. The Company shall not be liable for any breach of this warranty (a) unless the Buyer gives written notice of the defect to the Company, and to the carrier if the defect is as a result of damage in transit, within 3 days of the time when the Buyer discovers (or ought to have discovered) the defect and the Company is given a reasonable opportunity, after receiving such notice, of examining the relevant goods and the Buyer (if asked to do so by the Company) returns such goods to the Company's place of business for the examination to take place there or (b) if the Buyer makes any further use of such goods after giving such notice or (c) if the defect arises because the Buyer failed to follow the Company’s oral or written instructions as to the storage, installation, use or maintenance of the goods or (d) if the Buyer damages (accidentally, negligently or otherwise), alters or repairs the goods without the written consent of the Company. The Buyer should, at all times, maintain the goods according to the instructions provided by the Company.
5.2 Save as provided herein, if any goods do not conform with the warranty in paragraph 5.1 above, the Company shall (at its sole option) repair or replace such goods (or the defective part) or refund the price of such goods at the pro rata contract rate provided that, if the Company so requests, the Buyer shall return to the Company the goods or the part of such goods that is defective. If the Company repairs or replaces such goods, or refunds the price thereof, it shall have no further liability for any breach of warranty in respect of such goods.
6. LIMITATION OF liABIliTY
6.1 Save as otherwise provided herein, the following provisions set out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of (a) any breach of these terms (b) any use made, or any resale by the Buyer, of any of the goods or of any product incorporating any of the goods and (c) any representation, statement or tortious act or omission (including negligence) arising in connection with these terms and the contract between the Company and the Buyer.
6.2 All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 19 of the Sale of Goods Act 1923) are, to the fullest extent permitted by law, excluded from these terms and the contract between the Company and the Buyer. However, nothing in these terms excludes or limits the liability of the Company for (a) death or personal injury caused by the Company’s negligence or (b) for any other matter for which it would be illegal for the Company to exclude (or to attempt to exclude) its liability.
6.3 The Company’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of any contract between the Company and Buyer, shall be limited to the value of the contract to which the claim relates and the Company shall not be liable to the Buyer for any pure economic loss, loss of profit, loss of business, depletion of goodwill or otherwise, in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with these terms and/or any contract between the Company and the Buyer.
7. GENERAL
7.1 The Company may assign the benefit of these terms and any contract between the Company and the Buyer (or any part of any such contract) to any person, firm or company. The Buyer shall not be entitled to novate, assign or otherwise transfer any of its rights or obligations under these terms or any such contract (or any part of it) without the prior written consent of the Company.
7.2 The Company reserves the right to defer the date of delivery of goods, to cancel any contract between the Company and the Buyer, or to reduce the volume of goods ordered by the Buyer (without liability to the Buyer) if it is prevented from, or delayed in, carrying on of its business due to circumstances beyond its reasonable control including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes, or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials provided always that, if the event in question continues for a continuous period in excess of 180 days, the Buyer shall be entitled to give notice in writing to the Company to terminate its contract with the Company but such notice shall not affect any contract or part of a contract insofar as it relates to the volume of goods which the Company can supply.
7.3 Each right or remedy of the Company under these terms is without prejudice to any other right or remedy of the Company. Failure or delay by the Company in enforcing or partially enforcing any remedy or provision of these terms shall not be construed as a waiver of any of its rights hereunder. Any waiver by the Company of any breach of, or any default under, these terms by the Buyer shall not be deemed a waiver of any subsequent breach or default by the Buyer and shall in no way affect the other terms set out herein.
7.4 If any term set out herein (or any part thereof) is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall nevertheless remain in force. If any invalid, unenforceable or illegal term or provision would be valid, enforceable or legal if some part of it were deleted, such term or provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
7.6 Nothing in these terms is deemed to constitute a partnership or agency relationship between the Company and the Buyer and neither the Company nor the Buyer shall do anything whereby one may be represented as a partner or agent of the other.
7.7 Any notice or demand to be given hereunder shall be given in writing and shall be delivered by hand or by prepaid letter to the last known address of the person to be so notified, or by facsimile or e-mail to the last known facsimile number or (as applicable) e-mail address of the person to be so notified. Any such notice or demand shall be deemed to have been served immediately if delivered by hand, 48 hours after posting if posted as aforesaid, on acknowledgement by the addressee’s facsimile machine if delivered by facsimile or on receipt by the sender of a confirmation that an e-mail notification or demand has been received by the intended recipient.
7.8 These terms and conditions, and any disputes or claims arising out of or in connection with their subject matter, are governed by and construed in accordance with the law of New South Wales and the parties irrevocably agree that the courts of New South Wales have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with these terms and conditions.
IMPORTANT LEGAL NOTICE
ATTENTION: THIS WEBSITE IS OPERATED BY AND THIS NOTICE IS ISSUED BY MOUSTIQUE PTY LTD, HAVING ITS REGISTERED OFFICE C/O 11 YALLAMBEE ROAD, RIVERVIEW, NSW 2066 AUSTRAliA, FOR THE PURPOSES OF THIS NOTICE, ALL REFERENCES TO "MOUSTIQUE" "OUR", "WE AND US" MEANS MOUSTIQUE PTY LTD. THIS LEGAL NOTICE APPliES TO THE ENTIRE CONTENTS OF THIS WEBSITE UNDER THE DOMAIN NAME AND TO ANY CORRESPONDENCE BY E.MAIL BETWEEN US AND VISITORS TO THIS WEBSITE ("YOU" OR "YOUR"). PLEASE READ THESE TERMS CAREFulLY BEFORE USING THIS WEBSITE. USING THIS WEBSITE INDICATES THAT YOU ACCEPT THESE TERMS REGARDLESS OF WHETHER OR NOT YOU CHOOSE TO REGISTER WITH US. IF YOU DO NOT ACCEPT THESE TERMS, DO NOT USE THIS WEB SITE ("www.mozzeedesign.com”).
1.INTRODUCTION
1.1. You will be able to access this Website without registering your details with us.
1.2. By accessing any part of this Website, you agree to be bound by the conditions in this legal notice in full and further agree that the Courts of New South Wales, Australia shall have exclusive jurisdiction in respect of any dispute arising from this legal notice. If you do not accept the conditions in this legal notice in full, do not use this website and leave this Website immediately.
1.3. We may revise this legal notice at any time by updating this posting. You should check this legal notice from time to time to review the then current terms, because they are binding on you. Certain provisions of this legal notice may be superseded by expressly designated legal notices or terms located on particular pages at this Website.
2.COPYING
2.1. You are permitted to download, copy, and print extracts from this Website solely for you own personal, non-commercial use on the basis that no documents or related graphics on this Website are modified in any way, no graphics on this Website are used separately from accompanying text, and our copyright notice and this permission notice appear in all copies.
2.2. You may not otherwise download or copy, print, store in any medium (including any other website), distribute, transmit, re-transmit, or modify or show in public any part of this Website without our prior written consent.
2.3. Unless otherwise stated, the copyright and all other intellectual property rights in all graphics, text, photographs and other material on this Website and in the software and databases underlying this Website are owned by or licensed to us. Any use of extracts from this Website other than in accordance with paragraph 2.1 above for any purpose is prohibited.
3. SERVICE ACCESS
3.1. While we endeavour to ensure that this Website is normally available 24 hours a day, we will not be liable if for any reason this Website is unavailable at any time or for any period.
3.2. Access to this Website may be suspended temporarily and without notice in the case of system failure, maintenance or repair or for reasons beyond our control.
4.VISITOR MATERIAL AND CONDUCT
4.1. Other than personal data, which is defined and dealt with separately under our Privacy Policy [PLEASE PROVIDE HYPERliNK TO PRIVACY POliCY], any material you transmit or post to this Website will be considered non-confidential and non-proprietary. We will have no obligations with respect to such material. We and our designers will be free to copy, disclose, distribute, incorporate and otherwise use such material and all data, images, sounds, text and other things embodied therein for any and all commercial or non-commercial purposes.
4.2. You are prohibited from posting or transmitting to or from this Website any material:
(a) that is threatening, defamatory, obscene, indecent, seditious, offensive, pornographic, abusive, liable to incite racial hatred, discriminatory, menacing, scandalous, inflammatory, blasphemous, in breach of confidence, in breach of privacy or which may cause annoyance or inconvenience;
(b) for which you have not obtained all necessary licences and/or approvals;
(c) which constitutes or encourages conduct that would be considered a criminal offence, give rise to civil liability, or otherwise be contrary to the law of or infringe the rights of any third party, in Australia or any other country in the world; or
(d) which is technically harmful (including, without limitation, computer viruses, logic bombs, Trojan horses, worms, harmful components, corrupted data or other malicious software or harmful data).
4.3. You may not misuse the Website (including, without limitation, by hacking).
4.4. We will fully co-operate with any law enforcement authorities or court order requesting or directing us to disclose the identity or locate anyone posting any material in breach of paragraphs 4.2 or 4.3.
5.liNKS TO AND FROM OTHER WEBSITES
5.1. Links to third party websites on this Website are provided solely for your convenience. If you use these links, you leave this Website. We have not reviewed all of these third party websites and do not control and are not responsible for these websites or their content. We therefore do not endorse or make any representations about them, or any material found there, or any results that may be obtained from using them. If you decide to access any of the third party websites linked to this Website, you do so entirely at your own risk.
5.2. If you would like to link to this Website, you may do so with our prior consent only and provided that you link to but do not replicate, the home page of this Website, and subject to the following conditions:
(a) you do not remove, distort or otherwise alter the size or appearance of any trade marks or logos used by us on this Website, including the MOZZEE, MOUSTIQUE, NEST or NESTER logos;
(b) you do not create a frame or any other browser or border environment around this Website;
(c) you do not in any way imply that we are endorsing any products or services other than our own;
(d) you do not misrepresent your relationship with us nor present any other false information about us;
(e) you do not link from a website that is not owned by you; and
(f) your website does not contain content that is distasteful, offensive or controversial, infringes any intellectual property rights or other rights of any other person or otherwise does not comply with all applicable laws and regulations.
5.3. We expressly reserve the right to revoke the right granted in paragraph 5.2 above at any time and to take any action we deem appropriate.
5.4. You shall fully indemnify us for any losses, costs, charges and expenses suffered by us or any of our group companies for breach of paragraph 5.2.
6.DISCLAIMER
6.1. While we endeavour to ensure that the information on this Website is correct, we do not warrant the accuracy and completeness of the material on this Website. You should be aware that the information may be incomplete or inaccurate or may have become out of date. We may make changes to the material on this Website, or to the products described in it, at any time without notice. We make no commitment to update such material.
6.2. The material at this Website is provided ‘as is’ without any conditions, warranties or other terms of any kind. Accordingly, to the maximum extent permitted by law, we provide you with this Website on the basis that we exclude all representations, warranties, conditions and other terms (including, without limitation, as far as legally permitted the conditions implied by law of satisfactory quality, fitness for purpose and the use of reasonable care and skill) which but for this legal notice might have effect in relation to this Website.
6.3. By accessing this Website in any jurisdiction, it is your responsibility to satisfy yourself as to the full observance of the laws and regulatory requirements of the relevant jurisdiction, including obtaining governmental or other consents which may be required or observing any other formality or restriction that is required to be observed in such jurisdiction. If access to this Website and/or the information contained in it is unlawful in the jurisdiction from which you wish to access it, you should not access this Website and if you choose to do so, you do so entirely at your own risk.
7.liABIliTY
7.1. We, any other party (whether or not involved in creating, producing, maintaining or delivering this Website), and any of our group companies and the officers, directors, employees, shareholders or agents of any of them, exclude all liability and responsibility for any amount or kind of loss, costs, expenses or damage that may result to you or a third party (including without limitation, any direct, indirect, punitive or consequential loss or damages, or any loss of income, profits, goodwill, data, contracts, use of money, or loss or damages arising from or connected in any way to business interruption, and whether in tort (including without limitation negligence), contract or otherwise) from use, inability to use, or the results of use of, this Website, any websites linked to this Website (or the material on such websites), including but not limited to loss or damage due to viruses that may infect your computer equipment, software, data or other property on account of your access to, use of, or browsing this Website or downloading of any material from this Website or any websites linked to this Website.
7.2. Nothing in this legal notice shall exclude or limit our liability for (i) death or personal injury caused by negligence (as such term is defined by the Unfair Contract Terms Act 1977); (ii) fraud; (iii) misrepresentation as to a fundamental matter; or (iv) any liability which cannot be excluded or limited under applicable law.
7.3. If your use of material on this Website results in the need for servicing, repair or correction of your equipment, software or data, you assume all liability for the full costs thereof.
If you breach any of the terms in this legal notice, your permission to use this Website automatically terminates and you must immediately destroy any downloaded or printed extracts from this Website. Any rights not expressly granted in these terms are reserved.
Moustique Pty Ltd 2008 ©