Digital Kiosk Terms and Conditions

Effective date: 1st November 2019

1. Recitals

(a) Moffat agrees to supply the Digital Kiosk to the Distributor on a bailment basis.

(b) The Distributor agrees to accept the delivery of the Digital Kiosk on a bailment basis.

2. Interpretation

In this Agreement, unless the context otherwise requires:

2.1 Attaches has the same meaning as given to that term in the PPSA;

2.2 Collateral has the same meaning as given to that term in the PPSA;

2.3 Collection Date means the collection date set out in Item 2 of the Schedule unless this Agreement is terminated ealier in which case the Collection Date wil be the date that this Agreement is terminated;

2.4 Delivery Date means the delivery date set out in Item 1 of the Schedule;

2.5 Delivery Receipt means a document in such a form as Moffat may require from time to time setting out details of the delivery of the Digital Kiosk, including the time and date of delivery;

2.6 Device Name means the device name found on the back of each Digital Kiosk and set out in item 4 Schedule;

2.7 Digital Kiosk means 55” digital signage floor standing kiosk in black and colour with the Specifications and any other related property provided by Moffat to the Distributor and marked with the Device Name and the words "Property of Moffat Pty Limited";

2.8 Distributor means the person, firm or company that has offered to accept delivery of the Digital Kiosk and includes the Distributor and any servant, agent, partner, contractor or employee of the Distributor;

2.9 Distributor Contact means the contact person of the Distributor whose details are set out in Item 6 of the Schedule;

2.10 Financing Statement has the same meaning as given to that term in the PPSA;

2.11 Financing Change Statement has the same meaning as given to that term in the PPSA;

2.12 Guide means any written guides provided by Moffat to the Distributor from time to time and as amended from time to time, including directions regarding set up, operation and maintenance, troubleshooting and technical support;

2.13 Moffat means Moffat Pty Ltd ACN 070 810 721;

2.14 Perfected has the same meaning as given to that term in the PPSA;

2.15 PPSA means the Personal Property Securities Act 2009 (Cth) and any regulations made under it;

2.16 Premises means the premises set out in Item 3 of the Schedule;

2.17 Security Interest means:

(a) any security for the payment of money or performance of obligations including a mortgage, charge, lien, pledge, trust or power, or title retention arrangement;

(b) a security interest as defined in the PPSA; or

(c) any document that grants or creates anything referred to in either paragraphs (i) or (ii) of this definition and any other thing which gives a creditor priority over any other creditor with respect to any asset or an interest in any asset;

2.18 Specifications means the following specifications:

(a) 10 point touch screen;

(b) PC built in intel core i5 processor;

(c) 8GM Ram;

(d) SSD 64GB;

(e) Speakers: 2 x 5W;

(f) Wifi;

(g) AU standard 10A power cable with plug (110-240V, 50/60Hz);

(h) Case: Aluminium edge, cold rolled steel with power coating, tempered glass; and

(i) 2 year warranty; and

2.19 Verification Statement has the same meaning as given to that term in the PPSA.

3. Delivery

3.1 On the Delivery Date, Moffat will deliver the Digital Kiosk to the Distributor.

3.2 On the Delivery Date, the Distributor Contact must be available to accept the delivery of the Digital Kiosk and assist with set up of the Digital Kiosk.

3.3 The Distributor Contact must sign the Delivery Receipt upon delivery of the Digital Kiosk and send a copy of the Delviery Receipt to Moffat immediately by facsimile or email.

3.4 Failure to send a copy of the Delviery Receipt to Moffat will not delay delivery but will constitute a breach of this Agreement.

4. Risk and Title

4.1 The risk of loss or damage to the Digital Kiosk will pass to the Distributor upon delivery of the Digital Kiosk to the Distributor’s Premises.

4.2 If any loss or damage occurs after delivery, the Distributor indemnifies Moffat against all loss or damage as a result of the acts or omisssions of the Distributor, and indemnifies and holds Moffat harmless from any and all claims demands, suits or liabilities arising out of any such acts or omissions of the Distributor, its employees, appointees, legal representatives and agents.

4.3 Title to the Digital Kiosk shall remain with Moffat and shall not pass to the Distributor at any time.

4.4 The Distibutor must not remove or tamper with any ownership identification on the Digital Kiosk, including the Device Name, represent to any person that it has title in the Digital Kiosk or attempt to sell, or to grant to any person any Security Interest in, the Digital Kiosk.

5. Usage of the Digital Kiosk

5.1 Until the Digital Kiosk is collected by Moffat, the Distributor agrees that:

(a) the Distributor holds the Digital Kiosk as bailee of Moffat;

(b) the Digital Kiosk will only be used in accordance with the specific direction of Moffat, including the Guide, for the display of Moffat only content, including:

    (i) selected product brand highlights;

    (ii) news updates;

    (iii) product and brand advertisement; and

    (iv) sales promotional programs;

(c) the Digital Kiosk will be stored and retained separately, in accordance with the directions of Moffat, for display purposes only so as to be readily identifiable as the property of Moffat;

(d) the Distributor will not dispose of the Digital Kiosk except if and as instructed by Moffat;

(e) the Distributor will notify Moffat of any damage or theft of the whole or any part of the Digital Kiosk as soon as possible;

(f) the Distributor has no right or claim to any interest in the Digital Kiosk to secure any liquidated or unliquidated debt or obligation Moffat owes to the Distributor;

(g) the Distributor cannot claim any lien over the Digital Kiosk;

(h) the Distributor will not create any absolute or defeasible interest in the Digital Kiosk in relation to any third party, except with Moffat’s prior written consent; and

(i) subject to clause 5.2(a), the Distributor must not allow any person to have or acquire any Security Interest in the Digital Kiosk.

5.2 If at any time Moffat determines that the PPSA applies (or, with the passage of time, will apply) to this Agreement or any other transaction contemplated by this Agreement, then the Distributor must promptly upon request from Moffat do anything (including, without limitation, completing, signing and providing documents and obtaining consents):

(a) for the purposes of ensuring that any Security Interest created under, or provided for by this Agreement:

    (i) attaches to the Collateral that is intended to be covered by that Security Interest;

    (ii) is enforceable, Perfected, maintained and otherwise effective; and

    (iii) ranks as the first priority security interest; or

(b) to enable Moffat to prepare and register a Financing Statement or Financing Change Statement; or

(c) to enable Moffat to exercise any of its powers in connection with any Security Interest created under, or provided for by, this Agreement.

5.3 The Distributor must provide any information requested by Moffat in connection with this Agreement to enable it to exercise any of its powers or perform its obligations under the PPSA.

5.4 Except if section 275(7) of the PPSA applies, each of Moffat and the Distributor agree not to disclose any information of the kind referred to in section 275(1) of the PPSA that is not publicly available to a person or entity not a party to this Agreement.

5.5 The Distributor waives its rights to receive a copy of, or notice of, any Verification Statement confirming registration of a Financing Statement or a Financing Change Statement relating to any Security Interest under, or provided for by this Agreement.

5.6 Anything that is required by Moffat to be done under this clause 5 shall be done by the Distributor at its own expense. The Distributor agrees to reimburse the costs of Moffat in connection with any action taken by Moffat under or in connection with this clause 5 including, without limitation, registering a Financing Statement or Financing Change Statement or enforcing any Security Interest under, or provided for by, this Agreement.

6.       Updates

6.1 The Distributor Contact is required to assist Moffat to update the Digital Kiosk content, at the reasonable direction of Moffat.

6.2 The Distributor Contact will be notified of the content update prior to the update, including the date and time of the content update.

6.3 Content updates for the Digital Kiosk will be completed via:

(a) USB transfer conducted by Moffat at the Premises; or

(b) remote cloud upload/download through the Distributor's wifi connection,
as determined by Moffat.

7. The Distributor’s Rights and Responsibilities

7.1 The Distributor shall observe all directions and instructions given to it by Moffat in relation to the Digital Kiosk as notified from time to time and undertakes that it will at all times use the Digital Kiosk as a display in the Distributor's showroom/s and keep the Digital Kiosk safe and secure, free from dirt and dust and protected from harm and damage.

7.2 The Distributor must not remove the Digital Kiosk from the Premises without the prior written consent of Moffat which may not be unreasonably withheld.

7.3 The Distributor must mark or display the Digital Kiosk in a manner reasonably satisfactory to Moffat and which indicates that title to the Digital Kiosk remains vested with Moffat and the Distributor will at all times:

(a) retain any mark or label affixed to the Digital Kiosk by Moffat prior to its delivery to the Distributor; or

(b) display any Digital Kiosk not marked or labelled in accordance with clause 7.3(a) in a position or conditions pre-approved by Moffat and which bears a sign to the effect that, ‘All contents are the property of Moffat Pty Ltd’.

7.4 The Distributor must not alter the contents or display of the Digital Kiosk for any reason such as to display third party products.

7.5 The Distributor must not, and must not cause, permit, induce or encourage any other person to make any statements, allegations or comments regarding Moffat on the Digital Kiosk that, in the opinion of a reasonable person, would be adverse, critical or disparaging of Moffat.

8. Moffat’s Rights and Responsibilities

8.1 Moffat must insure the Digital Kiosk at all times with an insurer licensed or authorised to conduct the business of insurance in the place where the Distriubtor carries on business.

8.2 Moffat or its representatives may enter upon any premises where the Digital Kiosk is stored or displayed or where it is reasonably thought to be stored or displayed at any time during normal business hours upon reasonable notice to the Distributor for the purposes of inspecting the Distributor’s compliance with the requirements of Moffat and the terms of this Agreement.

8.3 If during an inspection Moffat determines that the Digital Kiosk is missing, Moffat will invoice the Distributer for the full cost of the Digital Kiosk, up to AUD2,000, or if the Digital Kiosk is damaged, then Moffat will invoice the Distributor for the repair or replacement of the Digital Kiosk, as necessary, in Moffat's sole discretion.

9. Termination and Recovery

9.1 This Agreement may be terminated by the Distributor giving thirty days prior written notice to Moffat.

9.2 This Agreement may be terminated by Moffat giving seven days prior written notice to the Distributor.

9.3 Moffat may terminate this Agreement with immediate effect by written notice to the Distributor if the Distributor is in breach of any provision of this Agreement and:

(a) such breach is not capable of remedy; or

(b) the Distributor fails to remedy that breach within seven days.

9.4 Moffat may terminate this Agreement with immediate effect by written notice to the Distributor if the Distributor is in breach of clause 7.5.

9.5 On termination for any reason, Moffat may recover possession of the Digital Kiosk at any site owned, occupied or controlled by the Distributor and the Distributor agrees that Moffat has an irrevocable licence to do so without incurring any liability to the Distributor or any person claiming through the Distributor. The Distrubutor agrees, promptly on Moffat's request, to procure (on terms acceptable to Moffat) the consent of any third party which is required to enable Moffat to enter any such site.