These Conditions govern the supply of Goods or Services or both by MOBA Mobile Automation Australia Pty Ltd (ABN 86627971368) (MOBA) to the Customer. By placing an Order or acquiring Goods and/or Services from MOBA, the Customer agrees to and accepts these Conditions.
In these Conditions, unless the context otherwise requires, the following definitions apply:
Conditions means these MOBA Supply Terms and Conditions.
Customer means the person or entity by or for whom an Order is placed with MOBA for the Supply.
Goods means the equipment, goods, materials, parts or products to be sold and supplied to the Customer by MOBA as specified or described in an Order, Quote or Invoice.
GST means the goods and services tax as defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (GST Act).
Guarantor means any director or officer of, or signatory signing on behalf of, a Customer that is a company, and also includes any person/s named as a Guarantor in a Quote where applicable, and includes their executors, administrators, and assigns.
Invoice means any invoice issued by MOBA for the Supply of Goods and/or Services to the Customer.
Order means any purchase order, or other request made or provided by the Customer to MOBA to purchase the Supply.
Payment Plan means, where applicable, a plan specified and agreed to by MOBA for the payment of the Price by instalments, or on credit terms, including the specified instalment amounts and their due dates for payment, credit limit or days of credit, as may be specified in a Quote or otherwise agreed to in writing by MOBA.
PPSA means the Personal Property Securities Act 2009 (Cth) and regulations made under that Act and words in clause 11 that are defined in the PPSA have the meanings given to them in the PPSA.
Price means the price payable by the Customer to MOBA for the Supply.
Quote means any quotation provided by MOBA to the Customer relating to the Supply containing the particular details of the Customer, Guarantor(s) (where applicable), description of Goods and/or Services, Price, Payment Plan (if applicable), and any Special Conditions relating to the Supply.
Services means the services, including repairs, to be supplied to the Customer by MOBA as specified or described in an Order, Quote or Invoice.
Supply means the sale and supply of Goods or the performance of Services or both by MOBA to the Customer as further specified or described in the Order, Quote or Invoice.
2. Application of these Conditions
2.1 By placing an Order for the Supply with MOBA, the Customer agrees and accepts that these Conditions shall apply. The Customer agrees that the Conditions contain the entire terms of the contract between MOBA and the Customer for the Supply unless expressly waived or amended in writing by MOBA.
2.2 Without prejudice to the generality of the foregoing, these Conditions override and take priority and precedence over any and all terms and conditions that the Customer may submit to MOBA (whether before, at the time of, or after placing an Order). The Customer’s terms and conditions will not apply in whole or in part to any Supply unless they are expressly accepted in writing by MOBA. These Conditions also take priority over any inconsistent terms in any Quote or Order.
2.3 By the Customer accepting a Quote, placing an Order or accepting the Supply, the Customer is deemed to have accepted these Conditions.
2.4 MOBA may, by including in the Quote or Invoice, or by giving written notice to the Customer prior to accepting an Order, issue special conditions in respect of that Order (Special Conditions) and those Special Conditions will be deemed to form part of these Conditions for the Supply under that Order.
2.5 In the event that the Customer wishes to make the purchase of the Goods and/or Services subject to a Payment Plan, this must be agreed in advance with MOBA and the Payment Plan must be provided by and acceptable to MOBA which MOBA can, in its absolute discretion, reject. An Order subject to a Quote is subject to being accepted by MOBA.
3.1 Unless otherwise expressly stated in the Quote or unless revoked earlier by MOBA in writing, any Quote provided to the Customer will remain valid and open for acceptance in writing by the Customer for 30 days from the date of the Quote.
4. Order and Deposit
4.1 Once an Order has been received by MOBA and, in the case of an Order which is subject to a Payment Plan, accepted by MOBA in accordance with clause 2.5 above, the Order cannot be cancelled or varied by the Customer without MOBA’s consent in writing. The Customer’s acceptance of a Quote conveyed to MOBA will be deemed to be placement of an Order in accordance with the Quote.
4.2 MOBA reserves the right to reject, cancel or place on hold any Order in whole or in part, and will endeavor to notify the Customer if that occurs.
4.3 MOBA may in its sole discretion require a non-refundable deposit, or payment in full, to be paid by the Customer after an Order is made and before MOBA commences Supply.
5. Price and Variations
5.1 The Price will be:
(a) the Price as quoted in a validly accepted Quote (subject to clause 5.2); or
(b) in the absence of any validly accepted Quote, as indicated on any Invoice/s provided by MOBA to the Customer in respect of any Supply.
5.2 MOBA reserves the right to change the Price:
(a) if the Customer requests a variation to the Goods or Services to be Supplied; or
(b) if additional Services are required due to the discovery of any hidden or unidentifiable difficulties which are only discovered after MOBA has accepted a Quote; or
(c) in the event of increases to MOBA’s cost of shipping or other third-party costs which are beyond MOBA’s control.
5.3 Unless otherwise specified in a Quote provided by MOBA as included in the Price, all Prices for Supply are exclusive of all taxes, GST, delivery transport, permit fees, equipment hire, insurance and any other fees, imposts or other charges incidental to the Supply.
6. Invoicing and payment
6.1 Each Invoice specifying the amount of GST payable by the Customer will be in a form that satisfies the requirements for a tax invoice (as defined in the GST Act).
6.2 The Customer must pay MOBA the full amount of any Invoice relating to the Supply:
(a) in accordance with these Conditions and the terms of the Invoice; and
(b) if MOBA has agreed to a Payment Plan, in accordance with the instalment payment amounts and their due dates or credit terms as specified in the Quote.
6.3 If the Customer does not pay an Invoice in full (or an instalment amount under a Payment Plan in full) by the due date for payment, MOBA may charge the Customer interest on all amounts outstanding at the prevailing penalty interest rate in Victoria accruing and payable on a daily basis from the date payment was due until the date that payment in full is received by MOBA. MOBA may also charge the Customer any costs and expenses (including legal costs on an indemnity basis) incurred by MOBA in recovering any amounts outstanding.
6.4 In the event of any dispute or claim by the Customer against MOBA, the Customer is not entitled to:
(a) withhold payment of any Invoice whether by way of set-off, counterclaim or on any other grounds; nor
(b) deduct from the Price any sum owed or claimed to be owed to the Customer by MOBA.
6.5 Time for payment for the Supply being of the essence, the Price will be payable by the Customer on the date/s determined by MOBA, which may be:
(a) by pre-payment, in circumstances where MOBA has informed the Customer that it is unable to offer sufficient credit terms to the Customer in respect of the Order; or
(b) by way of instalment payments pursuant to a Payment Plan; or
(c) by other credit terms previously agreed between the Customer and MOBA; and
(d) if none of the above are applicable, within thirty (30) days of the date of the relevant Invoice relating to the Supply.
7. Supply and Delivery
7.1 The Goods and/or Services will be Supplied to the address specified in the Quote or Order.
7.2 MOBA will use its reasonable endeavours to Supply the Goods and/or Services on or about the commencement date or delivery date agreed by the parties (if any), and such commencement date or delivery date is an estimate only. If no commencement or delivery date is agreed by the parties, the Goods must be Supplied within a reasonable time after the Customer places the Order. A failure to Supply the Goods on the commencement date or delivery date does not entitle the Customer to withhold payment under any Invoice or to treat the contract as at an end and MOBA will not be liable for any loss to any person for late Supply of the Goods or any Services.
7.3 The commencement or delivery date of the Supply will be put back and/or extended by whatever time is reasonable in the event that MOBA claims an extension of time (by giving the Customer written notice) where delivery is delayed by an event beyond MOBA’s control.
7.4 The Customer is responsible for the cost of any transport, insurance and any other costs incidental to the Supply by MOBA to the Customer unless MOBA has otherwise expressly agreed to be responsible for such costs.
7.5 Subject to clause 12, MOBA will not be liable for any deficiency in delivery or damage to the Goods or defect in the Supply unless the Customer gives written notice to MOBA in the case of Goods, within 7 days of the date of delivery of the Goods, and in the case of Services, within 30 days of the last date of Supply of the Services. If the Customer does not provide MOBA with such notice, acceptance of Supply by the Customer is deemed to have occurred.
7.6 Subject to clause 12, MOBA will have no obligation to accept any return of any Goods from the Customer, however MOBA may in its absolute discretion accept returned Goods that are able to be reused by MOBA as it determines in each individual case on such terms it agrees to in writing, which may include a handling and restocking charge of up to 30% of the Price of the returned Goods.
7.7 All intellectual property owned or created by MOBA and conveyed to the Customer for the purpose of, or arising out of, the Supply (IP) will be and remain owned by MOBA. Subject to the Customer paying the Price, MOBA grants to the Customer a non-exclusive, perpetual, restricted license to use the IP solely for the Customer’s own internal business and the purpose for which the Supply was made and intended to be made.
7.8 The Customer must comply with MOBA’s moral rights in any IP protected works created by MOBA, including identifying MOBA as the author/creator of the works, not falsely attributing authorship, and not subjecting the works to any derogatory treatment.
8.1 All risk for the Goods immediately passes to the Customer on delivery and delivery will be deemed to occur at the time that either;
(a) the Customer or the Customer’s nominated carrier takes possession of the Goods from MOBA’s address; or
(b) the Goods are delivered by MOBA or MOBA’s nominated carrier to the Customer’s nominated delivery address (even if the Customer is not present at the address).
8.2 If MOBA is to supply only Services, then upon Completion of the Services all risk for the Services immediately passes to the Customer.
8.3 If MOBA is to supply both Goods and Services, then upon completion of the Services all risk for the Services immediately passes to the Customer.
8.4 If the Customer has supplied any materials for MOBA to complete the Services, the Customer accepts responsibility for the suitability of purpose, quality and any faults inherent in the materials. MOBA is not responsible for any defects in the Services, or any loss or damage to the materials, arising from MOBA’s use of materials supplied by the Customer.
8.5 If MOBA gives any advice or recommendations to the Customer, or the Customer’s agent, regarding the suitability of the site hardware, or other infrastructure, or the software, algorithm, process, practice or method (collectively referred to as “advice or recommendations”) for the use of the Goods or Services and such advice or recommendations are not acted upon, then MOBA will not be liable for any damages or losses that result from such advice or recommendations not being acted upon.
8.6 If required, MOBA must be given safe, clear and free access to the Customer’s site or other infrastructure at all times to enable MOBA to supply the Services.
9.1 Where the Parties have agreed to a Payment Plan, then until the Price has been paid in full, it is the Customer’s responsibility to ensure that the Goods are suitably insured to cover replacement and that MOBA’s interest in the Goods is noted on the insurance and the insurance provides for the insurance proceeds to be payable to MOBA in the event of a claim in respect of the Goods.
9.2 The Customer must also maintain appropriate public liability insurance to cover the provision of any Services on the Customer’s site.
9.3 MOBA will maintain appropriate types of insurance, and sums insured, to cover any reasonable claim against MOBA in respect of the provision of Services.
10.1 Until the Customer pays MOBA the Price for the Goods in full and cleared funds:
(a) title in and ownership to the Goods remains with MOBA; and
(b) the Customer holds the Goods on trust and as bailee for MOBA and agrees to return the Goods to MOBA on request.
10.2 If the Customer fails to pay when due any amounts owing to MOBA under these Conditions, MOBA may without notice to the Customer terminate the Order and the bailment and take possession of the Goods and the Customer authorises MOBA and any of its servants or agents to enter any premises occupied by the Customer for the purpose of taking possession of the Goods and to keep or resell any Goods which are so repossessed.
10.3 Without limitation to the above, MOBA is entitled to take action against the Customer for recovery of the non-payment of any amounts owing under these Conditions and the Customer will indemnify MOBA for all costs and expenses incurred by MOBA in connection with that action on a full indemnity basis.
11. PPSA and Security
11.1 If the PPSA applies to any transaction under these Conditions, the Customer agrees that:
(a) these Conditions are a security agreement for the purposes of the PPSA;
(b) it grants a security interest including a purchase money security interest in the Goods for the purposes of the PPSA, as security for all amounts owing under or in connection with these Conditions now or in the future, which is a continuing security despite any settlement of account or other matter or thing until a final discharge is given to MOBA (where applicable); and
(c) MOBA may register any actual or impending security interest (in any manner it considers appropriate) in relation to any security interest contemplated or constituted by these Conditions in the Goods and the proceeds arising in respect of any dealing in the Goods.
(d) MOBA may appropriate (or re-appropriate despite any prior appropriation) moneys received in respect of the Customer in its absolute discretion toward any part of the amounts owing under these Conditions, including in order to maximise the extent to which it can have recourse to its security interest in the Goods held by the Customer.
11.2 The Customer agrees and undertakes to:
(a) do all things necessary to enable MOBA to register and perfect its security interest under the PPSA in respect of the Goods and any proceeds, including to register a financing statement or financing change statement and, if requested by MOBA, will not take possession of the Goods unless MOBA has registered a financing statement designating a purchase money security interest over the Goods;
(b) not register a financing change statement in respect of a security interest contemplated or constituted by these Conditions without the prior written consent of MOBA; and
(c) not create or purport to create any security interest in the Goods, nor register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods in favour of any other person without the prior written consent of MOBA.
11.3 The Customer:
(a) waives its right under section 157 of the PPSA to receive a copy of the verification statement relating to a security interest created under these Conditions;
(b) agrees that to the extent permitted by the PPSA, the following provisions of the PPSA will not apply and are contracted out of: section 95 (to the extent that it requires the secured party to give notices to the grantor); section 96; section 118 (to the extent that it allows a secured party to give notices to the grantor); section 121(4); section 125; section 130; section 132(3)(d); section 132(4); section 135; section 142 and section 143; and
(c) agrees that the following provisions of the PPSA will not apply and it will have no rights under them: section 123(2), 126, 127; section 129(2) and (3); section 130(1); section 132; section 134; section 135; section 136(3), (4) and (5) and section 137.
11.4 Unless otherwise agreed and to the extent permitted by the PPSA, the Customer and MOBA agree not to disclose information of the kind referred to in section 275(1) of the PPSA to an interested person, or any other person requested by an interested person. The Customer waives any right it may have, or but for this clause may have had, under section 275(7)(c) of the PPSA to authorise the disclosure of the above information.
11.5 For the purposes of section 20(2) of the PPSA, the collateral is the Goods including any goods which are described in these Conditions or in any other agreement or schedule provided by MOBA to the Customer from time to time.
11.6 The Customer agrees to notify MOBA in writing of any change to the Customer’s details within 7 days of such change.
11.7 The terms of this clause 11 prevail over any other term in these Conditions to the extent of any inconsistency.
11.8 In consideration of MOBA agreeing to supply the Goods and/or Services, the Customer charges all of its rights, title and interest (whether joint or several) in any land or other assets capable of being charged, owned by the Customer either now or in the future, to secure the performance by the Customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
11.9 The Customer indemnifies MOBA from and against all MOBA’ costs and disbursements including legal costs on an indemnity basis incurred in exercising MOBA’ rights under this clause.
11.10 The Customer irrevocably appoints MOBA as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to this clause including, but not limited to, signing any document on the Customer’s behalf.
12. Defects and Warranties
12.1 The Customer must inspect all Goods on delivery and the Services on completion and must within seven (7) days of delivery of the Goods or thirty (30) days of completion of the Services notify MOBA in writing of any evident defect/damage, shortage, or failure of the Goods and/or Services to comply with the Order description or Quote. Upon such notification, the Customer must allow MOBA to inspect, review and/or test the Goods and any Services provided.
12.2 Under applicable State, Territory and Commonwealth law (including, without limitation the Competition and Consumer Act 2010 (CCA)), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these Conditions (Non- Excluded Guarantees).
12.3 Nothing in these Conditions purports to modify or exclude the Non-Excluded Guarantees.
12.4 Except as expressly set out in these Conditions or in respect of the Non-Excluded Guarantees, MOBA does not make any warranty or other representation under these Conditions as to the quality or suitability of the Goods or Services. MOBA’s liability in respect of these warranties is limited to the fullest extent permitted by law. Any representation, warranty, or condition that would be implied into these Conditions by statute, common law, equity, custom or usage is excluded to the maximum extent permitted by law.
12.5 If MOBA is required to replace any Goods under this clause or the CCA, but is unable to do so, MOBA may refund any money the Customer has paid for the Goods.
12.6 If MOBA is required to rectify, re-supply, or pay the cost of re-supplying the Services under this clause or the CCA, but is unable to do so, then MOBA may refund any money the Customer has paid for that portion of the Services which was defective.
12.7 If the Customer is a consumer within the meaning of the CCA, MOBA’s liability is limited to the extent permitted by section 64A of Schedule 2. If the Customer is not a consumer within the meaning of the CCA, MOBA’s liability for any defect or damage in the Goods is:
(a) limited to the value of any express warranty provided to the Customer by MOBA at MOBA’s sole discretion;
(b) limited to any warranty to which MOBA is entitled, if MOBA did not manufacture the Goods; and
(c) otherwise negated absolutely.
12.8 Notwithstanding the foregoing sub-clauses but subject to the CCA, MOBA is not liable for any defect or damage caused wholly or partly by or arising as a result of:
(a) the Customer failing to properly use maintain or store any Goods;
(b) the Customer using the Goods for any purpose other than that for which they were designed;
(c) the Customer continuing to use any Goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
(d) interference with the Services by the Customer or any third party without MOBA’s prior approval;
(e) the Customer failing to follow any instructions or guidelines provided by MOBA; or
(f) fair wear and tear, any accident, or act of God.
12.9 Without limiting any liability that MOBA may have under any applicable Non Excluded Guarantees, MOBA warrants that the Goods will conform to their specification for a period of 12 months from the delivery date to the Customer (Warranty). This Warranty does not apply to the extent any non-conformance is due to:
(a) abuse, misuse, neglect, negligence, accident, improper storage, or use contrary to the instructions, training or specifications provided in respect of the Goods;
(b) fair wear and tear;
(c) improper handling, installation, maintenance, or repair;
(d) unauthorized alterations; or
(e) force majeure events.
13. Limitation of Liability
13.1 Subject to any liability that MOBA may have under the Non Excluded Guarantees or CCA, MOBA is not liable under these Conditions or at common law or under statute, tort (including negligence) or in equity or otherwise, to the Customer or any other person for any physical injury, death, loss or damage to any property or loss or damage to any business, or loss or damage of any other kind (including any consequential loss) arising out of directly or indirectly the Supply by MOBA of the Goods or Services.
14. Default and Consequences of Default
14.1 If the Customer owes MOBA any money the Customer must indemnify MOBA from and against all costs and disbursements incurred by MOBA in recovering the debt (including but not limited to internal administration fees, and legal costs on an indemnity basis).
14.2 Without prejudice to any other remedies MOBA may have, if at any time:
(a) the Customer is in breach of any obligation (including those relating to payment) under these Conditions;
(b) the Customer is insolvent or in MOBA’s reasonable opinion the Customer will be unable to make a payment when it falls due;
(c) the Customer has exceeded any applicable credit limit provided by MOBA;
(d) the Customer enters into or becomes subject to any form of insolvency related administration, receivership, bankruptcy, or liquidation;
(e) MOBA may suspend or terminate the Supply to the Customer; and
(f) MOBA may cancel all or any part of any Order which remains unfulfilled; and
(g) all amounts owing to MOBA will, whether or not due for payment, become immediately payable.
14.3 MOBA will not be liable to the Customer for any loss or damage the Customer suffers because MOBA has exercised its rights under this clause.
14.4 The Customer will indemnify MOBA and MOBA’s directors, officers and employees for any loss or liability suffered or incurred by any of them arising from any non-performance or breach by the Customer of these Conditions. However, the Customer’s liability to indemnify will be reduced proportionately to the extent that the loss or liability was caused or contributed to by MOBA’s negligence or breach of these Conditions.
15.1 MOBA may cancel any Order or contract to which these Conditions apply or cancel Supply of Services or Goods at any time before the Goods are delivered or Services are commenced by giving written notice to the Customer. On giving such notice MOBA will repay to the Customer any deposit and sums paid in respect of the Price, less any amounts owing by the Customer to MOBA for Services already performed. MOBA will not be liable to the Customer for any loss or damage whatsoever arising from such cancellation.
16.1 The Supply under these Conditions is governed by the laws of the State of Victoria, Australia and each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the Courts of Victoria.
16.2 A waiver of a breach of any of these Conditions or any right or remedy under these Conditions is ineffective unless in writing executed by the waiving party and a waiver is only effective in the specified instance and for the specific purpose in which it is given.
16.4 MOBA may assign all or any part of its rights or obligations under these Conditions without the Customer’s consent. The Customer cannot assign without the written approval of MOBA.
16.5 MOBA may subcontract out any part of the Services but is not relieved from any liability or obligation under these Conditions by so doing. The Customer is not authorised to and must not give any instruction to any of MOBA’s sub-contractors without the authority of MOBA.
16.6 MOBA may amend these Conditions for subsequent future Orders with the Customer by disclosing such to the Customer in writing. The changes shall be deemed to take effect from the date on which the Customer places a further Order in respect of the Goods and/or Services with MOBA.
16.7 Neither party is liable to the other for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm, pandemic or other event beyond the reasonable control of either party.
16.8 The parties warrant to each other that they have the power to enter into the contract governed by these Conditions and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this Contract creates binding and valid legal obligations on them.
16.9 MOBA is an independent contractor of the Customer, and is not the Customer’s agent or partner. The Customer has no right to contract in the name of or on behalf of or to bind or pledge the credit of MOBA in any contract with any third-party.
17.1 In consideration of MOBA either approving and providing credit in favour of the Customer or agreeing to a Payment Plan, the Guarantor(s) guarantee the payment obligations of the Customer and agree:
(a) To guarantee the due and punctual payment of all monies which are now or hereafter become payable to MOBA by the Customer and the performance by the Customer of all of its obligations and other liabilities in respect of the Supply as if the Guarantor was the Customer;
(b) To indemnify MOBA against all and any losses, costs, expenses or damages (including legal costs on a full indemnity basis) which may be suffered or incurred by MOBA by reason of the non-payment by the Customer of any amount due to MOBA or the non-performance of any of the Customer’s obligations to MOBA;
(c) That this Guarantee is a continuing guarantee and is binding on the personal representatives of the Guarantor;
(d) Where there is more than one Guarantor, that this Guarantee is enforceable against each Guarantor jointly and severally and MOBA may also at any time release or discharge a Guarantor from the obligations of this Guarantee and give time for payment, or accept any composition from or make any other arrangements with any Guarantor without thereby releasing or discharging any other Guarantor or otherwise prejudicing or affecting its rights against any other Guarantor;
(e) That this Guarantee creates a principal obligation and MOBA may exercise its rights under this Guarantee notwithstanding that MOBA may not have exercised or exhausted its legal rights against the Customer, including, without limitation, the enforcement of any security; and
(f) To charge in favour of MOBA, all property of the Guarantor, fixed and movable, real and personal, as security for the due payment of the debts of the Customer and of the Guarantor under this Guarantee.
End of Conditions
MOBA Mobile Automation Australia Pty Ltd (ABN 86627971368)
90 Willandra Drive, Epping, Victoria, 3076
T: +61 3 9357 0055
Version 1 (22 June 2023)