About Moyo Living
These Terms and Conditions (‘Terms’) apply to any purchase from Moyo Living Pty Ltd (ACN 626 274 253) (‘Moyo Living’) of 1/4 Milgate Drive, Mornington Victoria 3931, or from Moyo Living’s website at www.moyoliving.com.au.
If you do not accept these Terms, you must refrain from using or making a purchase from the Website or Moyo Living.
1. In these terms:
1.1. “Claim” means any claim, demand, action, proceeding, notice, litigation, investigation or judgment whether based in contract, tort, and statute or otherwise;
1.2. “Customer” means the person or entity to whom a quotation or invoice is issued by Moyo Living including that person or entities’ successors and assigns. In the event that no quotation or invoice has been issued, “Customer” means the person or entity (including that person’s or entity’s successors and assigns) to whom Products are supplied or are to be supplied by Moyo Living;
1.3. “Delivery Date” means the date agreed to between Moyo Living and the Customer for delivery of the Order;
1.4. “Delivery Point” means the point of delivery for the Product/s, specified in the Order by the Customer and agreed to by Moyo Living;
1.5. Intellectual Property – means all patents and patent applications, registered and registrable designs, copyrights, formulations, trademarks and similar industrial or intellectual property rights;
1.6. “Order” means an offer made by you in response to an invitation to treat made by Moyo Living,
(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 Moyo Living;
1.7. “Products” means the products the Customer requests Moyo Living to provide under these Terms and Conditions, as listed in an Order;
1.8. “Unit Prices” means the 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. Appointment of Moyo Living as the Supplier
2.1. The Customer appoints Moyo Living as the supplier to provide the Products and the Moyo Living accepts that appointment.
2.2. Moyo Living is an independent third party contractor to the Customer and is not (nor is intended to be) an agent, partner or joint venturer of the Customer.
3. Legal Capacity
3.1. Any Order using this website is an acknowledgement by the Customer or any representative of the Customer that:
(a) are over the age of eighteen (18) years;
(b) have capacity or authority to place the order and there is no obligation on Moyo Living to enquire as to the authenticity, capacity or authority of any person placing an Order on the Customer’s behalf;
(c) agree that the Customer has entered into an agreement with Moyo Living in relation to these terms; and
(d) these terms, together with the Order, constitute the entire agreement between the Customer and Moyo Living for the supply of Products that form part of the Order.
4.1. Representations of Products for sale made by Moyo Living on the Website do not constitute an offer to sell but an invitation to treat.
4.2. Moyo Living reserves the right to update the Products for sale on the Website or to correct any errors published on the Website.
4.3. Once Moyo Living receives an Order from you, we will confirm the order in writing to the Customer. An order is not binding on either party unless and until it is confirmed in writing by Moyo Living.
4.4. Moyo Living is under no obligation to confirm an order and may at its discretion reject any Order at any time.
4.5. If we become aware at any time that we will not be able to meet an order, we will notify the Customer as soon as is practicable. Moyo living reserves at our sole discretion the right to cancel or delay an order by giving written notice to you. You acknowledge that Moyo Living will not be liable for any loss arising from such cancellation or delay.
4.6. The Customer may not cancel an Order after it has been confirmed by Moyo Living without our written consent. Consent will be given at Moyo Living’s sole discretion and conditional on the Customer compensating Moyo Living for any loss incurred as a result of the cancellation. Without limiting the generality of the foregoing, Moyo Living may charge a cancellation fee equal to 25% of the value of the cancelled order.
4.7. The Customer acknowledges that refunds are not normally provided for change of mind.
4.8. The Customer acknowledges that:
(a) the transmission of the offer or the confirmation of any payment, made through an electronic instruction may not be received by Moyo Living for reasons beyond either party’s reasonable control;
(b) to the extent permitted by law, Moyo Living is not liable to the Customer in any way for any loss or damage at all and however caused, arising directly or indirectly in connection with the transmission of an electronic instruction or confirmation of any payment through the Website, or any failure to receive an electronic instruction for whatever reason.
(c) Moyo Living will act on and process all completed electronic instructions transmitted or issued through the Website without further consent from or reference to the Customer;
(d) Any representations made about stock availability is accurate to the last stocktake and subject to change. Moyo Living will notify the Customer as soon as practicable if stock availability is different from previous indication; and
(e) Moyo Living will not be bound to accept any changes to an Order, including changes to product dimension, materials or finish, a reduction in the quantity ordered or other particulars of an Order after Moyo Living has ordered the Products from its supplier.
5. Variation in Products
5.1. The Customer may request by notice in writing to Moyo Living a variation to the Products. Approval of any request for variation is at the sole discretion of Moyo Living.
5.2. No Variation will take effect unless and until the request is approved by Moyo Living.
5.3. Moyo Living reserves the right to vary without notice the construction technique, design and specifications of the Products that do not materially affect their quality, performance or detail (relative to published material).
6. Pricing & Payment
6.1. The Customer must pay each Order or Invoice issued in accordance with these Terms at the Unit Prices. Unless otherwise states all prices quoted are exclusive of GST. The Customer must pay Moyo Living the Unit Price plus GST at the same time.
6.2. Moyo Living will take reasonable care in packing the Products for delivery. Any special packing and packing materials requested by the Customer are at the Customer’s expense notwithstanding that such cost may have been omitted from any quotation.
6.3. Moyo Living may revise Unit Prices by giving a minimum of seven (7) days’ notice. Revised Unit Prices shall automatically apply after the seven day period has ended.
6.4. If any invoice is not paid by the due date, Moyo Living may – at its sole discretion – grant an additional period for payment not exceeding ten Business Days. If no payment is made by the additional payment period, Moyo Living may suspend all further deliveries of Products to the Customer until payment is made in full of the outstanding amount or an alternative payment arrangement is agreed between both parties.
6.5. Any unpaid invoices will incur interest at the rate of 12% per annum. The Customer will be liable for interest and any additional costs incurred to recover unpaid invoice amounts, including but not limited to legal and collection agents’ fees, Court costs, and a fee for Moyo Living’s time reasonably spent on the recovery process.
6.6. Payments made by credit card will be subject to a surcharge of 1%. Moyo Living reserves the right to change these rates at its discretion and will provide seven (7) days’ notice prior to applying a revised increased rate.
6.7. The Customer is not entitled to set off against, or deduct from the Unit Price, any sums owed or claimed to be owed to the Customer by Moyo Living. The Customer is not entitled to withhold payment of any part of an invoice that is not in dispute.
6.8. Prices quoted or issued by Moyo Living are subject to change without notice. The Customer must not disclose any pricelists without the written consent of Moyo Living, and acknowledges that prices may differ between customers depending on the timing and size of each Order.
7.1. Where the Customer does not have its own carrier, Moyo Living will deliver the Order or part of the Order to the Delivery Point on the Delivery Date or such other date as the parties may agree in writing.
7.2. Unless otherwise stated, delivery costs are not included in the price and will be charged for separately. All delivery costs are on a ground floor/front door basis unless stated otherwise and documented as such on the Order confirmation.
7.3. Moyo Living will dispatch the Products once the Customer pays in full the amount owing on the Order invoice.
7.4. If goods are transported by a Customer’s nominated carrier or by any carrier selected by the Supplier on behalf of the customer, the products are at the Customer’s risk from the time the Products leave any premises occupied by or under the possession and control of Moyo Living for the purposes of delivery to the Customer. Moyo Living is not responsible for any damage to the Products in the course of delivery by this particular carrier. The Customer is responsible for insuring the Products against loss or damage.
7.5. The Customer acknowledges that:
(a) the Customer is responsible for providing the correct delivery address and delivery instructions to Moyo Living;
(b) the Customer bears the responsibility for clearly specify delivery and access requirements at the time of placing each Order with Moyo Living. This includes notifying any impediments, e.g. staircases or narrow passages, that may require additional time and effort to affect such delivery; and
(c) where Moyo Living arranges delivery of the Order on the Customer’s behalf, the Customer is liable for payment of all delivery charges, including any additional charges incurred as a result of difficulties with delivery or access; and
(d) the Customer will notify Moyo Living of any vehicle height restrictions in carparks and any other impediments that may preclude access by delivery trucks; and
(e) Moyo Living will not dispatch any delivery where it reasonably believes that the delivery may occur in an unsafe environment.
(f) delivery costs do not include the cost of assembly and/ unpacking services and rubbish removal services;
(g) the Customer is responsible for any cost of re-delivery if a delivery is booked and needs to be re-scheduled;
(h) an Order must be accepted by a person with capacity and authority to accept delivery. If an appropriate person is not available to accept delivery on the Delivery Date, the Customer will be charged for transport and re-delivery costs;
(i) where the Customer has pre-arranged additional services with Moyo Living, such as an unpack, assemble and rubbish removal, fees for the additional services are not refundable unless the Customer advises Moyo Living in writing at least 72 hours before the Delivery Date that additional services are no longer required.
7.6. Times estimates for delivery are given in good faith and are estimates only. Moyo Living will not be liable for failure to deliver or any delays in delivery arising out of any cause beyond our control. The Customer will not be relieved of any obligation to accept or pay for the Products by reason of any delay in delivery.
7.7. If the Customer fails to give proper instructions for delivery or accept delivery of the Products within seven (7) days after notification in writing that the Products are ready for delivery, the Customer may be liable to pay to Moyo Living all reasonable costs for storage, protection and insurance of the Products after expiration of such seven (7) day period. Moyo Living reserves the right to store such Products at a location of its choosing.
7.8. Where the Customer claims a product defect in relation to part of an Order, the Customer is obliged to accept delivery of the remainder of the Order, which is not subject to any claim of product defect or claim.
8. Inspection and Defects
8.1. The Customer must:
(a) inspect the Products upon delivery by the Carrier. By signing for an Order delivery, the Customer warrants that the Customer has checked the state of the delivery;
(b) note any damage on the delivery sheet/consignment notice;
(c) in the event of damage,
i. retain all packaging materials;
ii. report the problem to Moyo Living via email
iii. provide photographic evidence or any other proof of damage, where reasonably obtainable.
8.2. In making a report of damage to Moyo Living, the Customer:
(a) permits Moyo Living to inspect the alleged damage within a reasonable time of receiving notification;
(b) authorises Moyo Living to reach a resolution with the carrier, if damaged during the delivery; and
(c) acknowledges that Moyo Living is not responsible for any damage caused by a Carrier in the course of delivery;
8.3. Where the damage or defect is not caused by the carrier during delivery, Moyo Living may do any one or more of the following in responding to the claim:
(a) Request further information from the Customer to investigate how the damage occurred; or
(b) offer to repair, refund or replace the damaged or defective product with an equivalent product. Moyo Living reserves the right to offer as replacement an equivalent product of a different colour or model if the original colour or model in question is no longer be available.
8.4. Moyo Living will not approve a refund or replacement in the event of a report of damage where:
(a) the alleged damage is part of the natural characteristic of the relevant Product;
(b) the damage arises from the improper use or care of the relevant Product, e.g. where the Customer has failed to comply with Care Instructions.
(c) If paragraphs (a) and (b) above applies, any warranty in relation to the Products will not apply.
8.5. Returns will only be accepted where a Return Authorisation has been issued by Moyo Living following a report of damage or defect.
(a) Where Moyo has issued a Return Authorisation, the Customer must return the relevant Product(s) to an address specified by Moyo Living.
(b) Except in the case of any Product(s) which are defective or damaged or fail to comply with their description, Moyo Living is under no obligation to accept any return of any Products sold to the Customer.
(c) If – despite paragraph (b), Moyo Living agrees to issue a Return Authorisation for a Product that is defective, damaged or non-compliant,
i. the Products must be returned in their original packaging (internal & external), in unmarked and unused condition, unassembled or in the exact state of assembly as originally delivered, to Moyo Living;
ii. freight Charges paid for the initial delivery are non-refundable;
iii. freight charges paid for the return must be paid by the Customer;
iv. the Customer is liable for any damage caused to the returned Products between the Delivery Date and the date on which Moyo Living receives the returned Product;
v. Moyo Living will charge a re-stocking fee equivalent to 25% of the value of the returned Products to cover the additional administration and warehouse costs associated with the return of these items; and
(d) A credit will only be processed once the returned Products are received by Moyo Living, checked and found to be in an “as new” condition.
9. Warranties and Representations
9.1. The Products are subject to warranties under the Australian Consumer Law.
9.2. Subject to the remainder of this clause 9, Moyo Living warrants that:
(a) with respect to furniture for standard domestic use, Moyo Living provides a twelve (12) month structural warranty, unless otherwise specified.
(b) with respect to furniture for non-domestic use, Moyo Living gives no warranty other than the warranties required by law.
(c) Fabric/leather coverings, finishing stains/coats and cane/wicker are excluded from any warranty provided by Moyo Living.
(d) Where a valid claim is made under a statutory or other warranty, Moyo Living will consider the claim in accordance with clause 8.
(e) To the extent permitted by law, any warranty pursuant to this clause 9 will be void if:
i. the damage or defect resulted from improper storage, use, lack of proper care and maintenance, abuse, negligence, commercial use, use within a rental environment or handling in transit;
ii. if the Product is relocated from its original delivery location and the relocation caused damage because the product was inappropriately packaged or otherwise moved.
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” wear, spills such as acid, solvents, dyes or other corrosive materials, ink, paint, or body fluids, moisture of any kind, improper cleaning techniques or other negligence and placing furniture outdoors or in direct sunlight contrary to care instructions and intended use;
iv. the Products have been subject to any alteration or repair by any person other than authorised in writing by Moyo Living;
(f) In this clause,
i. “non-domestic use” means use in any premises or dwelling that is used for any commercial undertaking or from which income is derived (such as a serviced apartment);
ii. “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.
9.3. The Customer acknowledges that:
(a) Products of a rustic or organic nature or has a raw or untreated finish may vary from imagery and display models and this is not considered a defect or damage;
(b) the shade or colour of a Product may also vary from images displayed on the Website or from Products in the showroom of Moyo Living due to lighting conditions. Minor variations in colour will not be considered to be a defect or damage;
(c) furniture heights, rakes, the colour of the frames and/or seat coverings and other items may also vary marginally from batch to batch. Moyo Living is not responsible for minor variations between different batches of a Product; and
(d) the Products ordered are suitable for the Customer’s flooring, and the Customer is responsible for using any protective coverings to prevent damage or scratching to the Customer’s flooring.
9.4. If the Customer purchases Products which are:
(a) sold as part of any clearance sale or in the clearance section by Moyo Living;
(b) formerly display or showroom items and have been discounted accordingly;
then such Products (irrespective of whether marked as clearance or display or showroom items) shall be sold in their “as is” condition and, to the extent permitted by law, no warranty shall apply to those Products.
9.5. If Moyo Living is required under these Terms and Conditions to repair a Product, it will give an approximate timeframe for the repair and will attempt to do so in good faith within a reasonable time.
9.6. To the extent permitted by law, Moyo Living’s liability for a breach of a condition or warranty is limited to:
(a) the replacement of the Products or the supply of equivalent Products;
(b) the repair of the Products; or
(c) refunding to the Customer the cost of the Product.
10. Property and insurance
10.1. Property and ownership (including legal and equitable title) in any Products sold by Moyo Living remains with Moyo Living until the Customer meets all of its payment obligations in full pursuant to these Terms, including without limitation both full payment of the Unit Price and all other amounts owing to Moyo Living.
10.2. Where the Products have not been paid in full before dispatch, the Customer must insure (and keep insured) the Products from the time of dispatch to such time as the Products have been paid in full.
10.3. The Customer will keep current a valid and enforceable insurance policy, with a reputable insurance company, against theft, damage and loss of the Product until Moyo Living has been paid in full and ownership passes to the Customer for the relevant Products.
10.4. The follow insurance requirements apply until ownership of the Products passes to the Customer:
(a) the Products must be insured for their full insurable or replacement value (whichever is higher); and
(b) the Products must be insured by an insurer licensed or authorised to conduct the business of insurance in the place where the Products will be stored.
10.5. The Customer agrees to provide Moyo Living, upon request, with certificates of currency or other satisfactory evidence that the Customer has appropriate insurance in accordance with these Terms.
10.6. If the Customer fails to pay for the Products in accordance with clause 6, then in addition other rights of Moyo Living under these Terms and at law:
(a) the Customer must deliver the Products to Moyo Living, if demanded by Moyo Living;
(b) Moyo Living may recover possession of the Products by any necessary reasonable means at any site owned, possessed or controlled by the Customer; and
(c) the Customer is liable for all costs associated with the exercise of Moyo Living’s rights under these Terms, and this liability will be payable on demand.
10.7. Customer agrees that, until property and ownership of the Products has passed to the Customer, the Customer must not – without written authorisation from Moyo Living –
(a) supply any of the Products to third party outside of its ordinary or usual course of business;
(b) allow any third party to have or acquire any security interest in the Products;
(c) create any absolute or defeasible interest in the Products in relation to any third party;
(d) remove, deface or obliterate any identifying place, mark or number on any of the Products; and/or
(e) send, deliver or vest the Products or title in the Products to any third party except as agreed to by Moyo Living.
Customer agrees that where the Customer is in actual or constructive possession of the Products and until property and ownership of the Products has passed to the Customer:
(f) the Customer holds the Products as bailee for Moyo Living;
(g) after giving reasonable notice to the Customer, Moyo Living will be entitled to enter upon the Customer’s premises between 9am and 5pm to inspect the Products; and
(h) the Customer must store the Products in a manner that enables the Products to be identified and cross-referenced to invoices issued by Moyo Living.
10.8. Customer acknowledges that the Customer has no right to claim –
(a) any interest in the Products to secure any liquidated debt or obligation Moyo Living owes to the Customer; and
(b) any lien over the Products.
10.9. Moyo Living may bring an action for any amount owing to us in respect of Products even where ownership of the Products has not passed to the Customer.
11. Personal Property Securities Act 2009 (Cth) (‘PPSA’)
11.1. The Customer acknowledges that these Terms constitute a security agreement that creates a security interest in favour of Moyo Living in all Products supplied by Moyo Living to the Customer to secure payment from time to time, including future advances. The Customer agrees to grant to Moyo Living a ‘Purchase Money Security Interest’.
11.2. The Customer acknowledges that by assenting to these Terms, the Customer grants a security interest to Moyo Living.
11.3. The Customer undertakes to:
(a) sign any further documents and/or provide any further information (which the Customer warrants to be complete, accurate and up-to-date) that Moyo Living may reasonably require to enable registration of a financing statement or financing change statement on the Personal Property Securities Register (‘PPSR’);
(b) not register a financing change statement or make a demand to alter the financing statement pursuant to section 178 of the PPSA in respect of the Products without the prior consent of Moyo Living;
(c) pay all costs incurred by Moyo Living in registering and maintaining a financing statement (including registering a financing change statement) on the PPSR and/or enforcing or attempting to enforce the security interest created by these Terms; and
(d) be responsible for the full costs incurred by Moyo Living (including actual legal fees and disbursements on a solicitor and client basis) in obtaining an order pursuant to section 182 of the PPSA.
11.4. The Customer waives –
(a) any right it may have under section 115 of PPSA upon enforcement;
(b) any right to receive the verification statement in respect of any financing statement or financing change statement relating to the security interest under section 157 of the PPSA unless otherwise agreed to in writing by Moyo Living.
11.5. The Customer agrees that immediately on request by Moyo Living the Customer will procure from any third party considered by Moyo Living to be relevant to its security position such agreement and waivers as Moyo Living may reasonably require.
11.6. The Customer agrees to promptly do anything Moyo Living reasonably requests (including but not limited to obtaining consents, or providing information) in order to perfect, preserve, maintain, protect, or otherwise give full effect, under the PPSA and related regulations, to these Terms and the security interest created by these Terms.
12.1. If Moyo Living merges or sells or otherwise change its corporate structure, it reserves the right to assign its rights and/or obligations under these Terms .
13.1. These Terms will continue unless and until terminated in accordance with this clause 13.
13.2. The Customer may terminate these Terms at any time if:
(a) Moyo Living commits a serious or persistent breach of any of the material provisions of these Terms, which is incapable of being remedied and which would likely have a materially adverse impact on the activities of the Customer;
(b) Moyo Living fails to remedy, to the reasonable satisfaction of the Customer, a serious or persistent breach of any of the material provisions of these Terms within 90 Days of receiving notice of that breach;
(c) a receiver, administrator, liquidator or provisional liquidator is appointed in respect of Moyo Living;
13.3. Moyo Living may terminate these Terms and cease supplying the Products to the Customer at any time if:
(a) the Customer commits a breach of these Terms which is incapable of being remedied;
(b) the Customer fails to remedy, to the satisfaction of Moyo Living, a breach of any provision of these Terms which is capable of being remedied within seven Business Days of receiving notice of that breach; and
(c) a receiver, administrator, liquidator or provisional liquidator is appointed in respect of the Customer or in respect of any of the assets or undertaking of the Customer.
13.4. Either party may give the other party no less than 6 0days’ notice of intention to terminate.
13.5. On termination of these Terms for any reason, the Customer must
(a) promptly cease the use of and return any Confidential Information belonging to Moyo Living in the Customer’s possession or control;
(b) discharge all obligations of the Customer in respect of all Products in the possession of, or ordered by, the Customer. Moyo Living will complete any work in progress to produce the finished Products and charge the Customer for any existing Orders at the Customer’s usual price
14. Confidential Information
14.1. The Customer’s Confidential Information belongs to the Customer and shall remain its property.
14.2. Moyo Living’s Confidential Information belongs to Moyo Living and shall remain its property.
14.3. All parties acknowledge that they have the following obligations in respect of Confidential Information:
(a) All parties must make all reasonable efforts to ensure that they and their respective representatives will:
i. only use or allow the other’s Confidential Information to be accessed, used or disclosed to perform their obligations under these Terms;
ii. not make any record of the other’s Confidential Information except as reasonably necessary and permitted under these Terms;
iii. take all reasonable steps to protect the other’s Confidential Information and to prevent unauthorised access, use, duplication and disclosure to the other’s Confidential Information;
(b) Where one party becomes aware of a breach of this clause 14, the party must:
i. notify the other party immediately; and
ii. at its own expense it must take all reasonable steps required to prevent or remedy the suspected or actual breach.
14.4. Both parties’ obligations with respect to Confidential Information under these Terms will continue until the Confidential Information in question is lawfully made publicly available.
15. Force Majeure
15.1. Moyo Living will not be liable for any delay in performing obligations under these Terms and Conditions if such delay is caused by circumstances beyond our reasonable control, including but not limited to, failure of or interruption in the provision of essential services such as electricity supply, bank payment systems or postal deliveries.
16. Dispute Resolution
16.1. Neither party may start court proceedings in respect of a dispute arising out of or in connection with these Terms unless it has complied with this clause 16.
16.2. A party claiming that a dispute has arisen must notify the other party giving details of the details.
16.3. During the 5 day period after a notice is given under the preceding clause representatives of the parties must – in good faith and using best efforts – attempt to resolve the dispute by negotiation.
16.4. If the dispute cannot be resolved in 5 days, 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, a mediator nominated by the Law Institute of Victoria will be appointed.
16.5. If either party breaches any provision of clauses 16.1-16.4, the other party need not comply with clause 16.1 in relation to the 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. The Customer must continue to pay any amount due to be paid to Moyo Living under these Terms and Conditions, except to the extent of any disputed amount.
17. Liability and Indemnities
17.1. To the extent permitted by law, Moyo Living excludes all liability in relation to all Claims by the Customer for loss or damage of any kind (however caused or arising) including, but not limited to, direct, indirect, special, or consequential loss or any loss of production, loss of revenue, loss of profit or anticipated profit, or business interruption, caused by Moyo Living, its Prodcuts, or by the Website.
17.2. The Customer at all times indemnifies and keep indemnified, Moyo Living, any related bodies corporate, directors, officers, employees and agents from and against
(a) any Claim for loss or damage (including reasonable legal costs and expenses on a full indemnity basis) by third party against the Customer, where the Claim arose out of, in connection with or in respect of the Customer’s conduct in relation to these Terms; and
(b) from and against any loss or damage to Products or any Products of the Customer being held by Moyo Living arising from or as a result of flood, storm or water damage.
17.3. This clause is not intended to exclude or limit any rights which you may have under the Competition and Consumer Act 2010 (Cth).
17.4. The total liability of Moyo Living under these Terms to the Customer for any reason is limited to the amount payable by the Customer to Moyo Living in respect of the Product giving rise to the liability.
17.5. To the full extent permitted by law, the Customer releases Moyo Living from any liability or obligation to the Customer or any other third party arising out of Moyo Living’s performance or non-performance of any obligation under these Terms and/or any Products supplied to the Customer in respect of:
(a) loss (including 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.
17.6. The indemnity in this clause 17 does not apply to the extent that any Claims caused by:
(a) Gross negligence of Moyo Living, its employees, agents or contractors, as the case may be; or
(b) a breach by Moyo Living of these Terms.
18. Customer’s Liability
18.1. The Customer’s liability for the performance of obligations under these Terms is not released, discharged or relieved by anything that but for this clause might have that effect, including without limitation:
(a) any transaction or arrangement between Moyo Living and the Customer or any assigned party;
(b) the Customer being subject to an Insolvency Event;
(c) Moyo Living being subject to an Insolvency Event; and
(d) any material change in circumstance of either party (including a change in the members of a partnership or corporate structure of a party).
19. Intellectual Property
19.1. The Customer acknowledges that Moyo Living is the sole owner of all Intellectual Property, which vests in the Products.
19.2. 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 form without Moyo Living’s written authority.
19.3. The Customer must not use any images of the Products obtained from the Website or otherwise from Moyo Living to sell the Products on-line without first obtaining the written approval of Moyo Living.
19.4. The Customer must comply immediately with any request by Moyo Living to remove from its website any images or photos of any of the Products.
19.5. Without limiting clause 19.4:
(a) Where the Customer operates a brick and mortar retail store(s) or a showroom, the Customer must not display on its website any images or photos of any Product which it does not physically stock at its brick and mortar retail store(s), showroom or main place of business; and
(b) the Customer may only place images or photos of a Product on its website if each such image or photo contains an acknowledgment that the Product are is from Moyo Living.
20. Online retail
20.1. The Customer must not place Moyo Living Products on its website without written permission from Moyo Living.
20.2. Unapproved usage of Moyo Living Products via any third-party website (including without limitation Amazon, Ebay, Gumtree, Deals Direct) without written permission from Moyo Living may result in immediate termination of the Contract.
21. Privacy Act
21.1. If Moyo Living considers it relevant to assessing the Customer’s application for commercial credit, the Customer agrees to Moyo Living obtaining from a credit-reporting agency a credit report about the Customer in relation to commercial credit, including credit worthiness, credit standing, credit history or credit capacity. The Customer agrees that the Moyo Living may give and seek from any credit providers named in the credit application form information about the Customer’s credit arrangement.
21.2. The Customer acknowledges that
(a) the Customer’s personal and company information is voluntarily provided to Moyo Living for the purposes of these Terms;
(b) Moyo Living may use the information provided for marketing purposes direct to the Customer;
(c) If at any point the Customer no longer wish to receive marketing communication, the Customer will advise us in writing.
22.1. All notices to be given under these Terms must be in writing. 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 to the party’s last known billing address or to such other address for notices as notified by the party from time to time;
(c) on receipt of a facsimile sent to the receiver’s current facsimile number but only if the sender possesses an identifiable transmit confirmation code; and
(d) to the party’s last advised email address.
23.1. The nature of the obligations of these Terms 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 on the party by these Terms 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. A waiver of a breach does not operate as a waiver of any other breach.
23.3. If any provision of these Terms offends any law 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 is to be severed from these Terms and the remaining provisions operate as if the severed provision had not been included.
23.4. These Terms 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 without the prior written consent of the other party.
23.6. These Terms cannot be varied or amended except in writing signed by both parties.
23.7. Each party must pay its own legal costs of and incidental to the preparation and completion of these Terms.
23.8. These Terms will be governed by and construed in accordance with the laws of the Victoria, Australia, the parties irrevocably submit to the exclusive jurisdiction of the courts and tribunals of Victoria, Australia.
23.9. In the event of any conflict between these Terms and those that may be included in or implied by any document forming part of any enquiry, specification, order or contract, then these Terms will prevail, except in so far as they are expressly varied by the parties in writing or otherwise by law.
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 Moyo Living unless set out in these Terms.
23.11. The Customer acknowledges that the Customer has obtained all licenses, permits and the like required under relevant statutes, ordinances, rules and regulations for the sale, rental, hiring and/or any other use of the Products prior to their Purchase of the Products.
23.12. The cost of any testing, processing or modification to the Product beyond Moyo Living’s the standard practice is payable by the Customer. Moyo Living will provide a quote for the costs in advance of confirming the Order.
23.13. Where the Customer, has requested testing, processing or modification to the Product, or where such testing, processing or modification is required by any public authority, Moyo Living does not give any warranty that the Product is suitable for such testing, processing or modification and accepts no responsibility or liability to the Customer for any damage done or caused by such testing, processing or modification.