Terms & Conditions
This website it operated by Moss Furniture (the Supplier). Throughout the site, our policies and these T&Cs, the terms “we”, “us” and “our” refer to Moss Furniture. We, the supplier offers this website, including all information, tools and services available from this site to you, the customer conditional upon your acceptance of all terms and conditions, policies and notices stated in these terms and conditions.
By visiting our site, using our platform and/or purchasing products from us, you agree to be bound by the following terms and conditions.
If you don’t agree to all of the terms and conditions below, then you must not access our website and services.
Moss Furniture reserves the right at it's sole discretion to update, modify or replace any part of these terms and conditions. The customer should review these terms and conditions periodically for updates and changes.
By agreeing to these terms and conditions, the customer represents to Moss furniture that he, she or they are at least 18 years of age or has consent from a parent or guardian.
1. DEFINITIONS AND INTERPRETATION
In these terms and conditions, except to the extent otherwise indicated by the context:
Business Day – Means a day that is not a public holiday or weekend in Victoria, Australia.
Claim – means any claim, demand, action, proceeding, notice, litigation, investigation, or judgement whether based in contract, tort and statute or otherwise;
Confidential Information – means existing and future information in the possession of the party who owns it which is provided to the other party for the stated purpose, and includes:
a) Information contained in any document which has been provided by one party to the other; and
b) Any information acquired by one party from the other in confidential circumstances related to the products.
The confidential information may be oral or written, may be in the form of words, numbers and/or images and may, amongst other things, include statements, contracts agreements, specifications, drawings, reports, documents, knowledge, know-how, or other information in any form of media. The confidential information includes both existing data and knowledge and concepts, ideas and developments.
The confidential information does not include information:
a) Which is or becomes generally available to the public (other than through a breach of these terms and conditions)
b) Which can be proved to have been known by either party or its advisers prior to disclosure by the other party for the stated purpose;
c) Which is required by law to be disclosed.
Customer – means:
a) a person from the general public to whom products and services are supplied
b) an approved trade account holder or business entity to whom products and services are supplied
Delivery Date – means the date stipulated in an order for delivery of product/s.
Delivery Point – means the point of delivery for the product/s, specified in the order by the customer
Force Majeure – means anything outside the reasonable control of a person pursuant to which that person is unable in whole or in part to perform its obligations under these terms and conditions (other than the payment of money), Including but not in any way limited to:
a) Acts of god or the public enemy, national emergencies, use of atomic weapons or nuclear fusion or fission, radioactive contamination, insurrection, riot, hostile or warlike action in peace or war or, stoppage;
b) Strikes, lockouts, labour disputes, work stoppages, embargoes or any other labour difficulties; and
c) Any action or reaction of or made by, any civil or military authority;
Information – means methods, skills and know-how supplied by either party and necessary for the manufacture, supply and packaging of the products.
Intellectual Property – means all patents and patent applications, registered and registerable designs, copyrights, formulations, trademarks, and similar industrial or intellectual property rights;
Losses – means all losses, damaged (including damage to persons or property), fines, claims, liabilities (whether in contract or tort, pursuant to statute or otherwise) and all expenses and cost, legal or otherwise (including fees and disbursements reasonably incurred) of any kind and nature;
Order – means a written order given by the customer, and approved in writing by the supplier specifying:
a) The products and the quantity of products required
b) The agreed unit price of the products
c) The delivery date
d) The delivery point; and
e) Using the product code, if any, supplied by the supplier
Products – means the products the customer requests the supplier to provide under these terms and conditions, as listed in and order;
Supplier – means Lisa Kate Anneveldt (ABN: 78244100387) of 113/56 Nicholson St, Abbotsford trading as Moss Furniture;
Unit Prices – means the unit prices payable by the customer under these terms and conditions in consideration for the provision of the products and as confirmed in each order.
2. APPROVED TRADE ACCOUNTS
2.1. Approval of trade applications are exclusively granted to the customer’s business trading name, ABN and services detailed upon registration. The supplier may immediately terminate these terms and conditions and cease supplying products and services to the customer if any changes to the applicant’s business affecting the criteria listed in the original application are found and have not been agreed to in writing by the supplier.
2.2. Approval takes effect from the date of written agreement or email confirmation by the supplier and continues unless terminated in writing by either party.
2.3. Approval of usage for trade applications does not signify that credit has been approved for the customer. Moss furniture does not supplier credit accounts.
3. GENERAL MEMBERSHIP ACCOUNTS
3.1 You may open a membership account with us to become a member of the site by providing your name, address, telephone number, a valid email address and nominating a password. Registration is free.
3.2 If you do not provide accurate and complete details, we may not be able to activate your Account.
3.3 You will receive an email confirming registration with us shortly after you have created your Account via the Site.
3.4 You may not use one email address to register for multiple Accounts. You must not hold more than one Account at the same time.
3.5 You agree that you have sole responsibility for any activity that occurs on your Account. You agree to notify us immediately if you become aware of any security breach or any unauthorised use of your password or Account.
4. ONLINE RETAIL
4.1. The customer must not place any Moss Furniture products on its website for sale.
4.2. Customers are permitted to use Moss Furniture product for rental purposes.
A breach of this clause by the customer will result in immediate termination of the customer’s trade/membership account with the supplier.
5. APPOINTMENT OF THE SUPPLIER TO PROVIDE THE PRODUCTS
5.1. The customer appoints the supplier to provide the products and the supplier accepts that appointment subject to these terms and conditions.
5.2. The supplier is an independent 3rd party contractor to the customer and is not (nor is intended to be) and agent, partner or joint venturer of the customer.
5.3. These terms and conditions will apply to products sold by the supplier to the customer and will continue until terminated in accordance with clause 11 of these terms and conditions.
6. ORDERS
6.1. Once an order is received from the customer and confirmed by email by the supplier to the customer, it is binding on both the supplier and customer. The supplier is not bound by any order until it has been confirmed by the supplier. Each accepted order is a separate agreement. The supplier must notify the customer as soon as it practicable if at any time the supplier becomes aware that it will not be able to meet an order placed by the customer. After the supplier becomes aware that it will not be able to meet an order placed by the customer, the supplier has the option of either cancelling the order or placing the order on hold until the supplier is able to supply the relevant product to the customer.
6.2. The customer places and order with the supplier by selecting products and pressing the ‘buy now’ button on the checkout page. The supplier reserves the right to accept or reject an order for any reason including without limitation, unavailability of product, an error in the price, image or the product description, or an error in your order. Orders are deemed received by the supplier at the time of successful transmission of the order, and the customer will thereafter be unable to cancel the order. Orders are deems accepted by the supplier upon the supplier acknowledging such order and failing to reject such order within 14 days.
6.3. The customer may not cancel an order after it has been acknowledged by the supplier without the suppliers consent in writing. This may be refused or given at the supplier’s sole discretion and, when given, will be on condition that the customer will compensate the supplier for all loss that it may suffer as a result of the cancellation as determined by the supplier in its discretion. Without limiting the generality of the foregoing, the supplier will be entitled to charge a cancellation fee equal to 30% of the value of the cancelled order.
6.4. The supplier may, at its discretion, reject any order from any customer or to refuse to supply products to anyone.
6.5. There is no obligation on the supplier to enquire as to the authority of any person placing an order on behalf of the customer.
6.6. In addition to its other rights under these terms and conditions, the supplier has the right to cancel or delay any order at any time before the supply of products by giving written notice to the customer. The supplier will not be liable for any loss arising form such cancellation or delay.
7. DELIVERY
7.1. Based on the customer’s request, the supplier will deliver such products that constitutes an order or part of an order (as case requires) to the delivery point on the delivery date or such date as the parties may agree in writing to the following locations; throughout Australia for furniture and homewares.
Unless otherwise agreed by the supplier, any delivered outside the above locations can be quoted on a case-by-case basis or arranged directly by the customer.
7.2. Times quoted for delivery by the supplier are given in good faith and are estimates only.
7.3. The supplier will not be liable for failure to deliver any of the products arising from any cause beyond the supplier’s control. The customer will not be relieved of any obligation to accept or request a refund for the products by reason of any delay in delivery.
7.4. If the customer fails to accept the delivery of the products or give proper instructions to the supplier for their delivery within seven days after notification in writing that the products are ready for delivery, the customer may be liable to pay to the supplier all reasonable costs for storage, protection and insurance of the products after expiration of such seven-day period. The supplier reserves the right to store such products at a location of its choosing.
7.5. No defect of claim in respect of products delivered will entitle the customer to reject delivery of other products, which are not subject to any defect or claim, delivered as part of the order.
7.6. Freight to all locations will be charged based on volume.
7.7. Un-pack, assembly and rubbish removal services, are available upon request in VIC & NSW on a case-by-case basis, these services are subject to additional charges. These services are not provided as standard. If the customer wishes to add this service on, they can email a request through prior to delivery whereby the supplier can approve or design request. If approved, the customer will be invoiced directly.
7.8. The customer is responsible for ensuring there is adequate access and entry to its premises to allow the deliver for products. The supplier must be notified of any vehicle height restrictions, carpark restrictions and any other impediments which may preclude access by the supplier’s usual delivery trucks.
7.9. The customer is responsible for ensuring that the items ordered are capable of being delivered and can fit through doors and in goods lifts (where applicable) and are to advise upfront if access is only available via stairwells etc. as this may require delivery surcharges and/or alternative product selections.
7.10. The customer is liable for payment of all delivery charges, including any additional charges incurred as a result of difficulties with access.
7.11. The customer must ensure correct delivery address details are provided to the supplier and notify the supplier in advance in writing via email if there will be difficulties accessing the delivery address (E.g. staircases or narrow passages) that will require additional time and effort to affect such delivery.
7.12. If a delivery is booked and needs to be re-scheduled a re-delivery fee may apply.
7.13. The supplier’s delivery teams will not make any deliveries they believe are unsafe.
7.14. Products will only be delivered if a person(s) aged over 18 is able to accept the delivery at the delivery address. Should an appropriate person not be available to accept delivery on the pre-arranged delivery date. The customer will be charged for the transport and re-delivery costs.
7.15. Where additional services such as an un-pack, assemble and rubbish removal was specified as part of the delivery and upon delivery the delivery team are advised that such service is not required and that they should merely leave the cartons there; there will be no refund of any fees in relation to the provision of services nor will the delivery team make a return trip to provide such services where the person accepting the deliveries gave them alternative instructions. Any return trip required to provide such services will be subjected to an additional charge.
7.16. The supplier is not responsible for products damaged in transit by the customer’s nominated carrier or by any carrier selected by the supplier on behalf of the customer. The customer shall be responsible for insuring the products against loss or damage during transit.
7.17. The customer must ensure that it does not automatically sign for products being received in good condition and is to check the state of the cartons and the products before signing for them as that will be held against the customer by the courier company in the event of a dispute. In the event of damage/fault, the damage must be pointed out to the carrier on arrival and the customer is to note the damages on the delivery sheet/consignment notice that the customer will be requested to sign. The customer must retain all packaging materials and report the problem to the supplier immediately and provide photographic evidence via email of any damages/imperfections. The supplier will endeavour to facilitate a resolution of the issue with the carrier on the customer’s behalf but accept no responsibility for transit damage.
7.18. All transit damage claims are to be notified in writing to the supplier within 48 hours of receipt of products. Any claims re. items that are deemed to be transit damaged which are notified after this date will be treated as a warranty claim.
8. PRICING AND PAYMENT
8.1 All prices listed on the Site are in Australian Dollars, include GST (unless otherwise specified) and do not include delivery costs.
8.2 All unit prices displayed on the Site are subject to change without notice. Prices for items in an order are fixed once your order has been confirmed. Subsequent price changes either up or down will not be retroactively applied to confirmed orders unless there has been a clear error.
8.3 You agree to pay delivery costs as they are calculated and listed in the order confirmation at the time of purchase.
8.4 To the maximum extent permitted by law, we reserve the right to refuse a sale to any customer.
8.5. The customer must pay each supplier order or invoice issued by the supplier as they are calculated and listed in the order confirmation at the time of purchase.
8.6. All customers must pay the supplier for all products purchased on the Moss Furniture website at the time of placing an order. The supplier accepts PayPal, Mastercard and Visa payment methods.
8.7. Payment made by credit card may be subject to a surcharge. Moss Furniture reserves the right to change the rate at it's discretion.
8.8. The customers acknowledges that the supplier is entitled to sell the products to other customers at prices which are different to the prices which are charged to the customer from time to time.
9. INSPECTION AND DEFECTS
9.1. The customers must:
a) inspect the products upon delivery;
b) within 48 hours of the supply of any product/s (time being of the essence), notify the supplier of details of any alleged defect, error, omission, shortage in quantity, damage or failure to comply with the description or order;
c) provide the supplier with photographic and other proof of the alleged defect, error, omission, shortage in quantity, damage or failure to comply as may be requested by the supplier;
d) provide the supplier with the product details (item codes or name/colours) and the relevant order number.
e) allow the supplier to inspect the alleged defect, error, omission, shortage in quantity, damage or failure to comply within a reasonable time of receiving notification;
f) the supplier’s product details (item codes or name/colours), order number and details of defect claimed; and
g) submit any claims to the supplier’s email address being hello@mossfurnituremelbourne.com.au or such other email address as may be advised by the supplier from time to time.
9.2. The customer will be deemed to have accepted the products free of defect or any non-conformity unless the supplier received a substantiated written claim within 48 hours of the date the supplier delivers or otherwise attempts to deliver the products to the customer, as the case may be.
9.3. If a claim is made by a customer, the supplier will endeavour to contact the customer within three business days. The supplier may request further images or information relating to the claim in order for the supplier to clearly identify/determine the defect. The supplier will not approve any claims that:
a) result from transit damage, where the relevant products were not freighted by the supplier or the supplier’s approved freight companies/carriers.
b) are due to the natural characteristic of the relevant product. This information can be found under care instructions on the supplier’s website. The customer must comply with those instructions and must provide the relevant part of the instructions to each of its customers when they purchase a product.
c) arise from the improper use or care of the relevant product
9.4. No return will be accepted unless a return authorisation has been provided by a team member of the supplier.
9.5. If the supplier, acting reasonably accepts a claim by the customer for a defect, error, omission, shortage in quantity, damage or failure to comply with description or order, the customer must return the relevant product(s) to the supplier. The supplier’s maximum liability to the customer will then be to:
a) supply a replacement of the relevant product(s) or supply equivalent product(s) to the customer. The supplier reserves the right to substitute similar items should the colour or model in question no longer be available;
b) repair the relevant product(s) and deliver them to the customer; or
c) refund the customer the cost of the relevant product(s).
9.6. If the supplier is of the reasonable opinion that the products when returned are other than in the same condition as when they were delivered to the carrier or directly to the customer, a charge equal to the cost necessary to restore the products to their original condition shall be payable by the customer upon demand by the supplier. If products are returned to the supplier which the supplier is unable to resell to a 3rd party or resell for the same amount as was sold to the customer, then the supplier may charge the customer an amount equal to the loss incurred as a result of the customer returning the products.
9.7. Except in the case of any product(s) which are defective or damaged or fail to comply with their description, the supplier is under no obligation to accept any return of any products sold to the customer. Despite the foregoing, if the supplier, in it's discretion, agrees to accept any return of any product which is not defective or damaged or fails to comply with its description:
a) the products must be returned in their original packaging (both internal and external), in unmarked and unused condition, unassembled or in the exact state of assembly as originally delivered to the supplier.
b) freight charged paid in relation to the initial delivery are non-refundable;
c) freight charged paid for the return of the relevant products must be paid directly by the customer or, if the return freight is arranged by the supplier, must be paid by the customer and deducted from the credit (if any due) to the customer on the return of this stock;
d) the supplier will chair a re-stocking fee equivalent to 30% of the value of the returned products to cover the additional administration and warehouse costs associated with the return of these items;
e) a credit will only be processed once these products are received by the supplier’s claims department, checked and found to be in good and as new condition.
9. WARRANTIES AND REPRESENTATIONS
9.1. The supplier warrants and represents to the customer that:
a) the supplier has the legal right and power without obtaining the consent of any person or authority to enter into these terms and conditions and sell products;
b) to the best of the supplier’s knowledge, information and belief there are no existing, pending or threatened matters or circumstances which will remove, limit or otherwise effect:
i) the legal right or power to sell the products; or
ii) the ability of the supplier to provide the products in accordance with these terms and conditions.
9.2. The customer warrants and represents to the supplier that:
a) the customer has the legal right and power without obtaining the consent of any person or authority to perform its obligations under these terms and conditions;
b) to the best of its knowledge, information and belief there are no existing, pending or threatened matters or circumstances which will remove, limit or otherwise effect its legal right or power to perform its obligations under these terms and conditions.
c) it must comply with all the instruction provided by the supplier to the customer regarding the care, handling and storage or the products, including those instructions which may be viewed at www.mossfurnituremelbourne.com.au.
9.3. Each party must promptly notify and fully disclose to the other party in writing material details of any event or occurrence, actual or threatened, which materially effects their ability to perform their obligations under these terms and conditions.
9.4. Subject to clauses disclosed in these terms and conditions, the supplier warrants that:
a) with respect to furniture for standard domestic use, the supplier gives a twelve-month structural warranty, unless otherwise specified. This warranty will be void if:
i) there is a failure to follow the supplier’s care instructions.
ii) if the product is relocated from its original delivery location by transporters not approved by the supplier, and the relocation caused damage because the product was inappropriately packaged or otherwise.
iii) the furniture is subject to a use for which it is not intended, including but not limited to damage caused by more than ‘normal’ ware, spills such as acid, solvents, dyes or other corrosive materials, ink, paint, or body fluids, moister of any kind, improper cleaning techniques or other negligence and placing furniture outdoors (other than furniture specified in the supplier’s catalogue and/or website as suitable for outdoor use) or in direct sunlight. Any apartment or other dwelling which is used for any commercial undertaking or from which income is derived (such as serviced apartment) shall be deemed to be a ‘non-domestic use’ for the purposed of these terms and conditions.
b) with respect to furniture for non-domestic use, including but not limited to sales under a one-off individual contract and sales to the hospitality industry, commercial trade applications and rental businesses, the supplier’s policy is to give no warranty other than the warranties required by law. The customer acknowledges that:
i) only select pieces in the supplier’s range are suitable for non-domestic use.
ii) in the event that the customer states its intention upfront and in writing to use the products in such a commercial application and in the event that an authorised officer of the supplier agrees in writing or via email to the suitability of such product within the commercial trade application, then a 12-month structural warranty may be offered, fair wear and tear excluded. ‘Structure’ means the frame of a furniture item. The structure fails if the product cannot be used for its fundamental purpose, fair wear and tear excluded. Fabric/leather coverings finished stains/coats and cane/wicker are excluded from any warranty provided by the supplier.
c) The products also come with warranties that cannot be excluded under the Australian Consumer Law. The customer has a statutory entitlement under certain circumstances to a replacement or refund, at the supplier’s sole discretion, for a major failure. The customer is also entitled in certain circumstances to have the products repaired or replaced, at the supplier’s sole discretion. If the products fail to be of acceptable quality and the failure does not amount to a major failure. Where a valid claim is made under a statutory or other warranty (and if such warranty is not voided for any of the reasons set out in these terms and conditions or by operations of lar), the supplier will, at its option either:
i) repair or replace the relevant products or the affected part of them; or
ii) wholly or partially recompense the customer if the products or part of them is defective, such compensation to be reduced having regard to the period of use by the customer and the way it has been used.
9.5. Improper use, abuse, negligence, commercial use or use within a rental environment will void the warranty. Any warranties implied by law will end immediately if the products become defective or damaged because of misuse, lack of proper care and maintenance, commercial use, use within a commercial or rental environment or handling in transit.
9.6. The supplier will not be required to repair or replace product if the supplier, acting reasonably, believes it is unreasonable that it be repaired to do so. Without limiting the generality of the foregoing, the customer acknowledges that:
i) if the products are of a rustic or organic nature, then the surface details may vary from imagery and display models, and this is not considered a defect, nor will it be deemed to be a defect.
ii) the supplier imports many unique items that have natural characteristics and the frequently produced with raw or untreated finishes. Minor variations may also be present in the touch, feel or grain of a product. The shade or colour of a product may also vary from images displayed on the supplier’s website or from products in the supplier’s showroom. Any such variations will not be considered to be a defect, nor will it be deemed to be a defect.
iii) chair heights, rakes, the colour of the frames and/or seat coverings and other items may vary marginally from batch to batch and not part-ship. However, if at a later date additional chairs are ordered and are used in conjunction with a batch previously supplied by the suppler, the supplier takes no responsibility in relation to any minor discrepancies between the various shipments.
iv) if the customer purchased products which are sold as part of any clearance sale conducted by the supplier. Then such products (irrespective of whether or not marked as clearance items) shall be sold in their as is condition and, to the extent permitted by law, no warranty of any nature shall apply to those products.
v) the customer must only use the products as they are intended.
vi) the customer must take all reasonable precautions to ensure that no damage is caused as a result of its use (or the use by a third party) or the products. Without limiting the generality of the foregoing, in the case of tables, chairs and other furniture, it is the customer’s responsibility to ensure that:
a) protective coverings are used by the customer so as not to damaged or scratch the floor upon which the tables, chairs or other furniture is placed. For example, suitable stoppers on products legs should be used which are appropriate for the customer’s floor type.
b) the protective coverings or stoppers are regularly upgraded when required to minimise damaged to the customer’s floor.
c) the customer only purchases tables, chairs and other furniture which are suitable for the floor upon which it is to be placed.
d) with some floor surfaces, such as natural wood, it is inevitable that some damage will occur from use of tables, chairs and other furniture and the supplier will have no liability to the customer in relation to any such damage.
9.7. The supplier must be notified of any imperfection in the products within 7 days of the products being delivered failing which any warranty applying to the products will cease to apply.
9.8. If the supplier is required under these terms and conditions to repair a product, it will endeavour to give an approximate timeframe by which a product will be repaired (if repair is possible) and will attempt to do so within a reasonable time.
10. ASSIGNMENT
10.1. The customer may not assign any of it's rights or obligations under these terms and conditions without the prior written consent of the supplier. The supplier may assign its rights and/or obligations under these terms and conditions.
11. TERMINATION
11.1. These terms and conditions will continue unless and until terminated in accordance with this clause
11.2. The customer may immediately terminate these terms and conditions at any time if:
a) the supplier commits a serious or persistence breach of any of the material provisions of these terms and conditions which is incapable of being remedied and which would or would not be likely to have a materially adverse impact on the activities of the customer;
b) the supplier fails to remedy, to the reasonable satisfaction of the customer, a serious or persistent breach of any of the material provisions of these terms and conditions which is capable of being remedied and which would or would be likely to have a materially adverse impact on the activities of the customer, within 90 days of receiving notice of that breach;
c) a receiver, administrator, liquidator or provisional liquidator is appointed in respect of the supplier of in respect of any of the assets or undertaking of the supplier; or
d) the supplier is unable or unwilling to pay its debts as and when they fall due.
11.3. The supplier may immediately terminate these terms and conditions and cease supplying the products to the customer at any time if:
a) the customer commits a breach of these terms and conditions which is incapable of being remedied;
b) the customer fails to remedy, to the satisfaction of the supplier, a breach of any provision of these terms and conditions which is capable of being remedied within 7 business days of receiving notice of that breach;
c) a receiver, administrator, liquidator or provisional liquidator is appointed in respect of the customer of in respect of any of the assets or undertaking or the customer;
d) the customer is unable or unwilling to pay its debts as and when they fall due;
e) the supplier gives to the customer no less than 60 days notice of its intention to end these terms and conditions; or
f) the supplier notifies the customer of its intention to cease supplying the customer with products.
11.4. On termination of these terms and conditions for any reason, the customer must promptly cease the use of confidential information belonging to the supplier and the customer must promptly return to the supplier any confidential information in the customer’s possession or control.
11.5. On the termination of these terms and conditions for any reason, the customer must purchase from the supplier at the customer’s usual price, or any difference price as confirmed in writing by the supplier, all products in the possession of, or order by, the customer. The supplier has the right to complete any work in progress to produce the finished products and charge the customer for this product at the customer’s usual price or any different price as confirmed in writing by the supplier.
12. OWNERSHIP OF THE CUSTOMER’S INFORMATION
12.1. The customer’s confidential information belongs to the customer and shall remain its property.
12.2. The supplier has no right to use the customer’s confidential information or any part of it other than as permitted by these terms and conditions.
12.3. The supplier obligations under these terms and conditions will continue until the customer’s confidential information is lawfully made publicly available.
13. OWNERSHIP OF THE CUSTOMER’S INFORMATION
13.1. The supplier’s confidential information belongs to the supplier and shall remain its property. 1
3.2. The customer has no right to use the supplier’s confidential information or any part of it other than as permitted by these terms and conditions.
13.3. The customer’s obligations under these terms and conditions will continue until the supplier’s confidential information is lawfully made publicly available.
14. CONFIDENTIAL INFORMATION
14.1. The customer and the supplier must not disclose or allow each other’s confidential information to be disclosed to any of their respective representatives or any other person without the prior authorisation of the other.
14.2. The customer and the supplier must make all reasonable efforts to ensure that both they and their respective representatives will:
a) keep the other’s confidential information confidential;
b) not use or allow the other’s confidential information to be used other than as permitted by these terms and conditions;
c) not make any note of memoranda relating to the other’s confidential information except as permitted by these terms and conditions;
d) take all reasonable steps to protect the other’s confidential information and to prevent unauthorised use, copying, duplication and access to the other’s confidential information.
14.3. The customer and the supplier must do their best to stop any person, including any of their respective representatives, from using or disclosing the other’s confidential information to any other person except to the extent permitted by these terms and conditions.
14.4. If the customer or supplier become aware of a breach of these cause 14 of these terms and conditions they must:
i) notify the other immediately if it or any of its representatives suspect or become aware of any breach of this clause 14; and
ii) at its own expense it must take all reasonable steps required to prevent of stop the suspected actual breach.
15. FORCE MAJEURE
15.1. If a force majeure event affecting the supplier precludes the supplier from partially or wholly complying with its obligations under these terms and conditions then as soon as reasonably practicable after that force majeure event arises, the supplier must notify the customer as to the following:
a) the force majeure event;
b) which obligations the supplier is precluded from performing (affected obligations);
c) the extent to which the force majeure event precludes the supplier from performing the affected obligations (precluded extent); and
d) the expected duration of any delay arising directly out of the force majeure event.
16. DISPUTE RESOLUTION
16.1. Neither of the parties may start court proceedings in respect of a dispute arising out of or in connection with these terms and conditions unless it has complied with this clause.
16.2. A party claiming that a dispute has arisen must notify the other party giving details.
16.3. During the 5-day period after a notice is given under clause 16.2 (or longer period agreed in writing) senior executive of the parties must use their best efforts to resolve the dispute by negotiation.
16.4. If the dispute is not resolved under clause 16.3, the dispute must be referred for mediation, at the request of any of the parties, to:
a) a mediator agreed on by the parties; or
b) if the parties are unable to agree on a mediator within seven days of the expiration of the 5-day period referred to in clause 16.3, a mediator nominated by the Law Institute of Victoria will be appointed.
16.5. If either party breaches any provisions of clauses 16.2 to 16.4, the other parties need not comply with clause 16.1 in relation to that dispute.
16.6. The existence of a dispute or the application of any part of the process in this clause will not of itself relieve either party from any obligation under these terms and conditions. The customer must continue to make payments to the supplier under these terms and conditions, except to the extent of any amount which is disputed.
17. NOTICES
17.1. All notices to be given under these terms and conditions must be in writing or by email. A notice will be deemed to be given in any of the following circumstances:
a) if delivered by hand to the receiver;
b) three days after postage in a postage paid envelope to the customer’s last known billing address or to such other address for notices as shall be notified from time to time by the parties;
c) to the party’s last advised email address.
18. PROPERTY
18.1. Property and ownership (including legal and equitable title) in any products sold by the supplier to the customer remails with the supplier until the customer meets all its obligations pursuant to these terms and conditions, including without limitation payment in full of the unit price and all other amounts owing to the supplier by the customer.
18.2. The products are at the customer’s risk from the time at which they are dispatched to the customer of its nominee, provided that if the products are sold on an FIS basis, the products are at the customer’s risk from time at which they are delivered to the customer.
19. LIMITATION OF LIABILITY
19.1. Notwithstanding any other provision of these terms and conditions:
a) in no circumstances will the supplier be liable to the customer, or any assigned party in contract, tort (including without limitation negligence or breach of statutory duty) or otherwise (whatsoever the cause) to compensate the customer or any assigned party for any special indirect or consequential loss or any loss of production, loss or revenue, loss of profit or anticipated profit, or business interruption.
b) the supplier, its servants, agents and sub-consultants will be deemed to have been discharged from all liability whatsoever in respect of the products, whether under the law of contract, tort or otherwise, at the expiration of one year from the receipt of the products.
c) the total liability of the supplier in relation to these terms and conditions or to the customer for any reason is limited to the amount payable by the customer to the supplier in respect of the product giving rise to the liability.
19.2. Clause 19.1(c) will not apply to:
a) liability out of which by law the supplier cannot contract;
b) liability for fraud or malicious or deliberate criminal acts or omissions on the part of the supplier;
c) liability for any act or failure to act by the supplier which was intended to cause, or which was in reckless disregard of, or wanton indifference to, the harmful consequences that the supplier knew, or ought reasonably to have known, that the act or failure to act would have on the safety, property or interests of the customer.
19.3. The supplier is not responsible to the customer or any person claiming through the customer for any loss or damage to the products in transit caused by any event of any kind by any person (whether or not the supplier is legally responsible for the person who caused or contributed to that loss or damage). The supplier must provide the customer with such assistance as may be necessary to press claims on carriers so long as the customer:
a) has notified the supplier and the carriers in writing immediately after loss or damage is discovered on receipt of the products; and
b) lodge a claim for compensation on the carrier within three days of the date of receipt of the products.
19.4. The supplier cannot guarantee any data or program available for download on this website 9or any linked website) is free of viruses or other spyware, and you agree that you assume the risk of any damage to your computer as a result of using the Moss Furniture website.
19.5. The Moss Furniture website may contain information from or hyperlinks to websites operated by 3rd parties. The supplier provides such information and hyperlinks for your convenience only but is not responsible for and does not endorse the content of any such information or website.
19.6. The supplier provides its website as its contents on an “as is” basis, and makes no representation as to the accuracy, completeness, currency or reliability of the information contained on its website. The supplier will not be liable in contract, tort (included negligence) or otherwise to you for any direct, special, indirect or consequential loss or damage (including loss or profits or loss of data) arising out of or in connection with the Moss Furniture website.
20. RELEASE AND ACKNOLEDGEMENT
20.1. To the full extent permitted by law, the customer released the supplier from any liability or obligation to the customer or any assigned party arising out of the supplier’s performance or non-performance of any obligation under these terms and conditions and/or any products supplied to the customer in respect of:
a) loss (included consequential loss) in relation to property or otherwise;
b) personal injury, disease or illness to, or death of, persons;
c) economic loss; and
d) loss in relation to the environment.
20.2. Despite anything else contained in these terms and conditions, the customer as all times indemnifies and released the supplier, its employees and agents and any Related Body Corporate of the supplier from and against any loss or damage to products or any products of the customer being help by the supplier arising from or as a result of a flood, storm or water damage.
21. INDEMNITY
21.1. The customer at all times indemnifies and holds harmless the supplier, its employees and agents and any Related Body Corporate of the supplier from and against any loss (including without limitation actions, proceedings, judgments, legal fees and charges) that may be incurred by, billed made or recovered against the supplier in connection with the performance or non-performance of the customer’s obligations under these terms and conditions and/or the supply of any products, including without limitation:
a) loss (including consequential loss) in relation to property, including without limitation the supplier’s property;
b) loss in respect of personal injury, disease, illness or death;
c) economic loss; and
d) loss in relation to the environment.
21.2. The indemnity in clause 21.1. does not apply to the extent that any claims, damages, expenses, losses or liabilities are caused by:
a) any negligent act or omission of the supplier or the supplier’s employees, agents or contractors, as the case may be; or
b) a breach by the supplier of these terms and conditions.
21.3. The indemnity container in clause 21.1 does not in any way limit or affect any other rights that the supplier may have arising out of any default by the customer in the performance of the customer’s obligations under these terms and conditions.
22. CUSTOMER’S LIABILITY
22.1. The customer’s liability for the performance of obligations under these terms and conditions is not released, discharged or relieved by anything that but for this clause might have that effect, including without limitation:
a) the grant of a waiver or other indulgence to the customer of any assigned party by the supplier;
b) ant transaction or arrangement between the supplier and the customer or any assigned party;
c) the customer being subject to an Insolvency Event;
d) the supplier being subject to an Insolvency Event;
e) the supplier exercising, delaying or refraining from exercising any right, power or remedy given to it by law, by these terms and conditions, or by any other document or agreement with the customer of any assigned party;
f) the supplier obtaining a judgement against the customer or any assigned party for the payment of any money under these terms and conditions and/or any other document or agreement between supplier and the customer or any assigned party; and
g) and change in circumstance of the supplier or the customer or any assigned party (including a change of circumstance of a person, the members of a partnership or the composition of a supplier)
23. GENERAL
23.1. The natural of the obligations of these terms and conditions are such that:
a) any provision in these terms and conditions which binds more than one person binds all of those persons jointly and each of them individually; and
b) each obligation imposed on a party by these terms and conditions in favour of the other is a separate obligation.
23.2. A failure, delay, relaxation or indulgence by a party in exercising any power or right conferred in the party by these terms and conditions does not operate as a waiver of the power or right. A single or partial exercise of the power or right does not preclude a further exercise of any power or right under these terms and conditions. A waiver of a breach does not operate as a waiver or any other breach.
23.3. If any provision of these terms and conditions offends any law applicable to it and is as a consequence illegal, invalid or unenforceable then:
a) where the offending provision can be read down so as to give it a valid and enforceable operation of a partial nature it must be read down to the extent necessary to achieve that result; and
b) in any other case, the offending provision must be severed from these terms and conditions in which event the remaining provisions of the Agreement operate as if the severed provision had not been included.
23.4. These terms and conditions bind and benefit the parties and their respective successors and permitted assigns.
23.5. A party cannot assign or otherwise transfer the benefit of these terms and conditions without the prior written consent of the other party.
23.6. The supplier may revise these terms and conditions at any time in its absolute discretion, and these revisions will be effective immediately. If any of the terms are found to be unenforceable, you agree that the remainder of the terms and conditions remain in full force and effect.
23.7. Each party must pay its own legal costs of and incidental to the preparation and completion of these terms and conditions.
23.8. These terms and conditions will be governed by and construed in accordance with the laws of Victoria Australia, the parties irrevocably submit to the exclusive jurisdiction of the courts of Victoria Australia.
23.9. In the event of any conflict between these terms and conditions and those that may be included in or implied by any document forming part of any enquiry, specification, order or contract, then these terms and conditions will prevail, except in so far as they are expressly varies by the supplier in writing or otherwise by law. The provisions of these terms and conditions will prevail over any terms and conditions of the customer whether or not any inconsistency arises.
23.10. Except to the extent required by law, no conditions or warranties expressed or implied by any law, ordinance rule or regulation (including those expressed or implied by statute, the common law, equity, and trade customs or usage) are binding upon the supplier unless set out in these terms and conditions. To the extent permitted by law, the supplier’s liability for a breach of a condition or warranty which is required or implied by law is limed to, as the supplier’s discretion:
a) the replacement of the products or the supply of equivalent products;
b) the repair or the products;
c) the payment of the reasonable cost of having the products repaired; or
d) refunding to the customer the cost of the product.
To the extent permitted by law, any warranties provided or implied or required by law do not apply if:
i) the products have not been used or stored in accordance with instructions provided by the supplier or that would otherwise be reasonable in all circumstances;
ii) the products have been subject to any alteration or repair by any person other than authorised in writing by the supplier;
iii) the customer fails to notify the supplier of the customer’s claim within 7 days of the defect becoming apparent or fails to return relevant product to the supplier upon being requested to do so by the supplier; or
iv) the products have not been used for the purpose for which they are designed.
23.11. All Products are sold on the understanding that all licences, permits and the like are required under relevant statutes, ordinances, rules and regulations have been obtained by the customer.
23.12. The cost of any testing that is beyond the supplier’s standard tests is payable by the customer.
23.13. The supplier reserves the right to make a reasonable charge for storage if:
a) delivery instructions are not provided by the customer within fourteen days of a request by the supplier for such instructions. Such charge is payable from the first day after delivery instructions were sought until the date of receipt of said instructions; and
b) the customer does not want the products to be delivered to it from the time they are ready for delivery. Such charge is payable from the first day the products are ready to be delivered to the customer until it instructs the supplier to deliver the products.
23.14. All descriptions, specifications, illustrations, drawings, images, data, dimensions and weights contained in catalogues, pricelists, or on other promotional material (including the website and social media accounts) or other documents of the supplier or elsewhere are approximations only. The supplier will not be bound to accept any change in product dimension, materials or finish, a reduction in quantity ordered or other particulars or an order for the products after the supplier has ordered the products from its supplier or any special materials related to the supply of the products. If the supplier is required to process the customer’s goods or materials then the supplier does not give any warranty or assurance that materials, quantities, pre-printing supplied by the customer are suitable for such processing. The supplier accepts no responsibility and will not be liable to the customer for any damage done or caused to such materials or goods.
23.15. The supplier reserves the right to correct any errors, inaccuracies or omissions on the supplier’s website, and to change or update information or cancel orders if any information in the website is inaccurate at any time and without prior notice (including after the customer has placed an order).
24. INTELLECTUAL PROPERTY
24.1. The customer acknowledges that the supplier is the sole owner of all Intellectual Property which vests in the products. If the customer does not pay the unit prices in full, any licence implied by law to use any work product or intellectual property in the products will terminate and the customer will be required to return all original and copies of work product and intellectual property to the supplier within seven days of being requested to do so.
24.2. All branding, logo’s, typography, designs, photography, catalogues and other marketing collateral, drawings, or technical specifications of any products shall not be reproduced in any more without the supplier’s written authority.
24.3. The customer must not use any images of the products, whether sourced/downloaded from the supplier’s website or obtained by other means, to sell the products online without first obtaining the written approval of the supplier.
24.4. The customer must comply immediately with any request by the supplier for the customer to remove from its website any images or photos of any products.
24.5. Without limiting clause 24.4, the customer may only place images or photos of any products on its website if each such image or photo contains a prominent acknowledgment that the products are sources from Moss Furniture.
24.6. The customer must not engage in any search engine optimisation or marketing activities which in any way reducing the exposure or visibility of the supplier on google.com. Without limited the foregoing, the customer must take all steps reasonably required from time to time by the supplier to ensure that when a person searches “Moss Furniture” on google that the viewer is directed to the supplier’s website in priority to the customer’s website.
24.7. The supplier owns its website and, unless otherwise indicated, owns or is licensed to use all content and other material appearing on the website. The material on this website is protected by copyright and other material appearing on the website. The material on this website is protected by copyright under the laws of Australia and may not be used without written permission by the supplier. No trademark (whether registered or not) that is displayed on this website may be used in anyway without the prior written permission of the supplier or of the relevant trademark owner.
24.8. The customer must not transmit any worms or viruses or any code of a destructive nature or decompile, reverse engineer or disassemble the Moss Furniture website.
25. PRIVACY ACT
25.1. The customer’s personal and company data is known to the supplier only when voluntarily submitted or posted to the supplier. The supplier may use this data for ongoing marketing purposes direct to the customer. If at any point the customer no longer wishes to receive communication from the supplier, please advise the supplier accordingly in writing or unsubscribe to the mailing list.
25.2. The customer acknowledges having read and understood the supplier’s privacy policy which may be viewed on the supplier’s website.