Emerge Health

Terms and Conditions of Trade

QUOTATIONS, ORDERS AND CONTRACT

1.1A contract for the supply of Goods and Services is made when the Customer places an Order with EMERGE HEALTH for the supply of Goods and Services which is accepted by EMERGE HEALTH either in writing or by conduct (supply of the Goods and Services to the Customer).

1.2To the extent that any inconsistency arises between these Conditions and any other terms agreed in writing between the parties, the terms of these Conditions will prevail to the extent of any inconsistency, unless expressly stated otherwise.

2 PURCHASE PRICE

2.1The Customer must pay the Purchase Price for the Goods, adjusted for any rebates or discounts applicable (inclusive of GST), and subject to any adjustments made by EMERGE HEALTH in accordance with clauses 2.2 to 2.5.

2.2All Purchase Prices quoted by EMERGE HEALTH are exclusive of GST unless otherwise expressly noted. The Customer agrees to pay in addition to such amounts any applicable GST at the same time as the Purchase Price is due and payable in accordance with this clause 2.

2.3Prior to EMERGE HEALTH accepting any Order, EMERGE HEALTH reserves the right to change the Purchase Price of the Goods to reflect any increase in the cost of producing and/or delivering the Goods and Services arising as a result of:

(a)changes in inflation rates and exchange rates;

(b)any changes in the current market conditions relating to the Goods and Services (including the price of competitive products in the market, changes in the regulatory environment, new market entrants and changes to manufacturing and delivery costs);

(c)any other factors beyond the control of EMERGE HEALTH, which relate to the Goods and affect EMERGE HEALTH’s ability to maintain the existing Purchase Price;

(d)any change in delivery dates, delivery locations, quantities for the Goods that the Customer requests; and

(e)any additional costs incurred by EMERGE HEALTH caused by the instructions of the Customer or failure to give EMERGE HEALTH adequate information or instructions.

2.4If the Customer accepts EMERGE HEALTH’s proposed price increase, or the Parties otherwise reach agreement on a revised Purchase Price, the revised price will take effect in the month following the date of the agreement.

3 PAYMENT

3.1Unless EMERGE HEALTH has agreed to extend credit to the Customer, payment for Goods must be made by the Customer.

3.2Where EMERGE HEALTH has agreed to extend credit to the Customer, EMERGE HEALTH will submit an invoice to the Customer for Goods or Services (Invoice) supplied to the Customer (including, without limitation, Goods delivered in part fulfilment of an Order) and the full amount of the Invoice together with any additional charges (if any) must be paid by the Customer to EMERGE HEALTH by no later than the date which is 30 days after the date of EMERGE HEALTH’s invoice or such other date for payment as EMERGE HEALTH and the Customer agree in writing.

3.3The trading terms may be withdrawn on any overdue accounts.

3.4The Customer agrees that EMERGE HEALTH may use the services of a credit reporting service and mercantile agent to recover any outstanding monies.

3.5If the Customer fails to pay the balance by the due date on the Invoice, EMERGE HEALTH either may:

(a)charge the Customer interest on the balance amount, at the rate of 15% per annum until payment in full is made (plus any GST due); and

(b)recover, in addition to the balance and any applicable interest due under clause 3.5 (a), all costs incurred by EMERGE HEALTH in collection of outstanding payments including, without limitation, all legal costs and all debt collection agency costs.

3.6In addition to the recovery of monies from the Customer under clause 3.3, EMERGE HEALTH may also suspend supply or delivery of any of the Goods until all monies outstanding are paid in full.

3.7If the Customer breaches a provision of these Conditions, including but not limited to a provision relating to the payment of money or if any of the events contemplated by clause 15(d) occur, then EMERGE HEALTH may:

(a)withdraw any credit terms which may have been extended to the Customer and require immediate payment of all moneys owed to EMERGE HEALTH by the Customer; and

(b)terminate, without EMERGE HEALTH incurring liability to the Customer, any contract in force between EMERGE HEALTH and the Customer for the sale or supply of Goods or Services and/or withhold any deliveries of Goods or performance of Services.

3.8EMERGE HEALTH will be entitled to deliver the Goods in one or more instalments. Where delivery of the Goods is affected by way of part delivery, EMERGE HEALTH will be entitled to invoice the Customer for pro-rata progress payments in respect of Goods delivered.

4 STANDARD OF SUPPLY

4.1EMERGE HEALTH must use reasonable endeavours to supply the Goods and Services to the Customer diligently, faithfully and conscientiously and with the same level of care and skill as would reasonably be expected of a person qualified and experienced in the supply of the same or similar Goods and Services.

5 REPORTS

5.1The Customer may be required to prepare reports in relation to the Goods at the request of EMERGE HEALTH and if so, must provide them to EMERGE HEALTH within 14 days of being reasonably requested to do so by EMERGE HEALTH so EMERGE HEALTH may improve its product offerings and provide more efficient and effective Goods and Services to the Customer.

5.2The Customer may provide the reports in either electronic or physical form, unless EMERGE HEALTH specifies in writing a particular form and/or format for the reports, in which case the Customer will provide the reports in the form and or format reasonably specified by EMERGE HEALTH.

6 DELIVERY

6.1All Goods will be delivered by EMERGE HEALTH or its transport contractor to the Delivery Address and the Customer must accept the delivery upon arrival.

6.2EMERGE HEALTH reserves the right to arrange transport of the Goods using any transport contractor of its choice and by any means in its absolute discretion.

6.3EMERGE HEALTH may, in preparation for delivery, bundle and package the Goods the subject of an Order in its discretion and the Customer forever discharges EMERGE HEALTH from any liability or claim arising out of such bundling or packaging by EMERGE HEALTH.

6.4Where EMERGE HEALTH or its transport contractor enters the Customer’s premises or the premises of a third party nominated by the Customer as the Delivery Address, the Customer:

(a)releases EMERGE HEALTH from any claim the Customer may at any time have had against EMERGE HEALTH but for this release in respect of damage occasioned to the Customer’s premises or injury to persons arising out of the delivery by EMERGE HEALTH or its transport contractor of Goods to such premises; and

(b)indemnifies and holds EMERGE HEALTH harmless from and against any loss, damage or liability suffered or incurred by EMERGE HEALTH in respect of damage occasioned to the Customers premises or injury to persons arising out of the delivery by EMERGE HEALTH or its transport contractor of Goods to the premises of the Customer except for and to the extent that such loss, damage or liability suffered or incurred by EMERGE HEALTH arises out of the gross negligence of EMERGE HEALTH or its transport contractor.

6.5Delivery dates for the Goods and completion dates for the Services which are stated or quoted are estimates only and are not binding on EMERGE HEALTH. EMERGE HEALTH is not responsible or liable, for any costs, expenses, losses, damages, charges or penalties suffered by the Customer either directly or indirectly arising where the Goods and Services are not delivered or provided by those dates.

6.6Where clause 7.5 applies, the Customer cannot repudiate the contract, claim damages, claim compensation or obtain relief of any obligation to pay the Purchase Price by reason of any delay in delivery and dispatch of the Goods or completion of the Services.

6.7Within five (5) Business Days from date of receipt of the Goods at their Delivery Address, the Customer may inspect the Goods delivered by EMERGE HEALTH and in the case of defects may give notice to inform EMERGE HEALTH of any defect in order to allow EMERGE HEALTH to replace said Goods at EMERGE HEALTH’s expense, provided that the defects are not attributable to any faulty handling of the Goods by the Customer. If such notice is not received from the Customer within the timeframe stipulated, the Customer shall be deemed to have accepted the Goods as defect free.

7 RISK AND TITLE

7.1Legal and equitable title to the Goods is retained by EMERGE HEALTH until EMERGE HEALTH receives payment in full from the Customer for the Goods and Services in cleared funds.

7.2The risk of loss or damage to the Goods passes to the Customer on delivery to the Customer of the Goods, notwithstanding that the Customer may not have signed a receipt for the Goods or paid the full Purchase Price.

7.3EMERGE HEALTH makes no representation as to the condition of the Goods at the time they are delivered to the Customer.

7.4EMERGE HEALTH reserves the right to retake possession of the Goods, and keep or resell any of the Goods repossessed, until all amounts owed by the Customer to EMERGE HEALTH in respect of the Goods and Services supplied to the Customer at any time are fully paid.

7.5In the event of a breach of this Contract by the Customer, including without limitation, failure by the Customer to make payment for the Goods by the date specified by EMERGE HEALTH, the Customer must return the Goods to EMERGE HEALTH immediately on demand and if the Customer does not, EMERGE HEALTH will be entitled to enter the Customer’s premises, or any premises where the Goods are held at any time, to do all things necessary to recover the Goods.

7.6The Customer agrees that it is liable for and indemnifies EMERGE HEALTH against all costs incurred or suffered by EMERGE HEALTH (including consequential losses) as a result of EMERGE HEALTH repossessing the Goods in accordance with clauses 7.4 and 7.5.

8 FORECASTS

8.1EMERGE HEALTH may request that the Customer provide one or more quarterly forecasts of the Customer’s anticipated Orders for the Goods.

9 PROVISION OF INFORMATION

9.1The Customer will promptly notify EMERGE HEALTH of any claim or complaint known or suspected in relation to the Goods, together with any other information, on request, that may be required by EMERGE HEALTH to perform the Services.

10 PRIVACY ACT

10.1The Customer acknowledges that it is aware and has been informed under the Privacy Act 1988 that personal information about the Customer has been provided to EMERGE HEALTH in this Application. The Customer permits EMERGE HEALTH to keep that personal information on file and, if required, disclose that personal information to a credit reporting agency.

11 EMERGE HEALTH’S WARRANTIES AND LIABILITY

11.1EMERGE HEALTH will not be liable to the Customer under any clause of these Conditions for any defect in the Goods arising from any matter or thing which results from the Customer’s wilful damage, negligence, abnormal operation of, failure to follow the instructions, misuse, alteration, repair, inappropriate storage or handling of the Goods (if applicable) by the Customer without the approval of EMERGE HEALTH.

11.2To the extent permitted by law, including the Trade Practices Act 1974 (Cth), EMERGE HEALTH:

(a)does not make any representation or warranty to the Customer in connection with the Goods or Services and excludes all implied conditions and warranties except any implied condition or warranty the exclusion of which would contravene any statute or cause any part of this clause to be void; and

(b)is not liable to the Customer for any loss or damage arising directly or indirectly by reason of any representation, statement, advice or any implied warranty, condition or other term, any duty at common law, or under the express terms of the Contract.

11.3Notwithstanding any of these Conditions, EMERGE HEALTH is not liable to the Customer for any indirect, special or consequential loss or damage suffered or incurred by the Customer arising out of an act, omission, breach or negligence of EMERGE HEALTH.

11.4If EMERGE HEALTH is unable to exclude any implied conditions or warranties contained in any relevant legislation, EMERGE HEALTH’s liability for any breach of that condition or warranty is limited to in the case of a supply of Goods, EMERGE HEALTH replacing, repairing the Goods or paying the cost of repairing or replacing the Goods or acquiring equivalent goods;

11.5EMERGE HEALTH is not liable to the Customer or deemed to be in breach of the Contract for any delay in performing, or failure to comply with, the Contract if the delay or failure was due to any cause beyond the reasonable control of EMERGE HEALTH or the fault of the Customer.

12 FORCE MAJEURE

12.1The obligations of EMERGE HEALTH will be excused to the extent that EMERGE HEALTH’s obligations are affected by a Force Majeure Event. EMERGE HEALTH shall be under no obligation to subsequently deliver Goods or Services during the period of a Force Majeure Event, but otherwise these Conditions remain unaffected.

12.2If a Force Majeure Event occurs, EMERGE HEALTH may allocate its available supply of Goods and/or Services, without obligation to purchase similar Goods and/or Services from other sources, among itself and all of its customers, on such basis as it so determines.

13 TERMINATION

13.1EMERGE HEALTH may terminate the Contract or suspend any further Goods and Services with immediate effect if:

(a)the Customer breaches any terms of the Contract and in EMERGE HEALTH’s reasonable opinion that breach is not capable of being remedied; or

(b)the Customer is issued with a written default notice by EMERGE HEALTH for breach of a term of the Contract and the Customer does not remedy that breach in accordance with, and within 30 days after receipt of, the default notice; or

(c)the Customer ceases to carry on its business, is unable to pay its debts as they fall due, is presented with a winding up petition or any step is taken to appoint a receiver, receiver and manager, a trustee in bankruptcy, a provisional liquidator, or an administrator to the assets, operations or business of the Customer.

13.2On termination of the Contract or suspension of the Services under clause 17.1:

(a)all rebates and discounts are immediately withdrawn and cease from the date of the notice of termination;

(b)if the Goods have been delivered or the Services performed but not paid for, the Purchase Price will become immediately due and payable and the Customer must pay all amounts to EMERGE HEALTH immediately, notwithstanding any previous agreement or arrangement to the contrary;

(c)if the Customer does not comply with paragraph (a), EMERGE HEALTH will also have the right to recover and resell any Goods in which title remains with EMERGE HEALTH; and

(d)the Customer grants to EMERGE HEALTH a licence for access to the Customer's premises for the purposes of such recovery under paragraph (b) and to examine and retrieve Goods;

13.3Termination of the Contract or suspension of the Services does not affect any accrued rights or remedies of EMERGE HEALTH.

14 CONFIDENTIAL INFORMATION

14.1Subject to clause 18.2, the Customer must keep all Confidential Information confidential and must not make, assist or permit any person (including its representatives) to make any unauthorised use, disclosure or reproduction of the Confidential Information and must not make any announcements of any kind in respect of the Confidential Information without the prior consent, in writing, of EMERGE HEALTH.

14.2The Customer may disclose the Confidential Information only to the extent strictly necessary to exercise its rights, carry out its obligations under this Contract or to the extent required by law or by a lawful requirement of any government or governmental body, authority or agency having authority over the party or if required in connection with any legal proceedings.

15 INTELLECTUAL PROPERTY

15.1Where applicable, all patents, trademarks, copyrights and any other intellectual property in the Goods remain the sole property of EMERGE HEALTH at all times and the Customer agrees that it will not infringe any of the intellectual property rights of EMERGE HEALTH.

15.2To the extent reasonably required, EMERGE HEALTH will obtain and ensure that it continues to possess the necessary licenses, consents and/or other permissions required from any third party to perform its obligations under this Contract, without infringing the intellectual property rights of any third party.

15.3EMERGE HEALTH agrees to indemnify the Customer against any liability of the Customer for damages against the Customer arising out of or in connection with any claim that the Customer’s sale or use of a Product infringes the intellectual property rights of a third party, providing that the Customer has used the relevant Product(s) strictly in the manner contemplated by EMERGE HEALTH, or in accordance with any specific instructions given by EMERGE HEALTH.

16 NOTICE

16.1Any notice required or permitted to be given under this Contract will be deemed to have been given if written in English and signed by an authorised person and either hand delivered, sent by prepaid post or facsimiled to the recipient's Notice Address, as varied from time to time by any notice given by the recipient to the sender.

16.2Any notice given under clause 21.2 will be deemed to have been served at the date of receipt or upon receipt of sending confirmation in the case of hand delivery or facsimile respectively, and on the second day after dispatch in the case prepaid post delivery.

17 GENERAL

17.1EMERGE HEALTH may sub-contract the supply or delivery of the Goods and/or carrying out of the Services.

17.2Any terms set out in these Conditions will prevail over any other terms agreed between the parties to the extent of any inconsistency, unless expressed otherwise.

17.3No waiver by EMERGE HEALTH of any breach of the Contract by the Customer will be considered as a waiver of any subsequent breach of the same or any other provision. A waiver of a right, power or remedy must be in writing and signed by the party giving the waiver.

17.4A term or part of a term of either these Conditions or the Contract that is illegal or unenforceable may be severed from either these Conditions or the Contract and the remaining terms or parts of the term of these Conditions or the Contract shall continue in force.

17.5The Contract constitutes the entire agreement between the Parties with respect to the relevant subject matter, and supersedes all prior agreements between the Parties, whether written or oral, relating to the same subject matter.

17.6Any error or omission in the Contract, sales literature, invoices or other documents or information issued by EMERGE HEALTH is subject to correction without any liability on the part of EMERGE HEALTH

17.7The Customer must not assign the Contract, or any right under the Contract without the prior written consent of EMERGE HEALTH.

17.8All of the rights and obligations of each party to this Contract which are expressed to survive termination or expiry of this Contract, or which by their nature or context must survive termination or expiry of this Contract, will survive the termination or expiry of this Contract.

17.9These Conditions are governed by the law applicable in the State of Victoria, Australia and each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts of Victoria.

18 INTERPRETATION

18.1In these Conditions:

(a)the singular includes the plural and vice versa, and a gender includes other genders;

(b)a reference to a clause is to a clause or paragraph of these Conditions;

(c)a reference to a party includes the party's executors, administrators, successors and permitted assigns and substitutes;

(d)the meaning of general words is not limited by specific examples introduced by including, for example or similar expressions;

(e)a reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;

(f)a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of this lease or any part of it; and

(g)if a day on or by which an obligation must be performed or an event must occur is not a Business Day, the obligation must be performed or the event must occur on or by the next Business Day.

18.2The defined terms mean as follows:

‘Application’ means this application for credit, made up of Parts A to E.

‘Business Day’ means a day that is not a Saturday, Sunday or public holiday in Victoria.

‘Conditions' means these standard terms and conditions of supply set out in Part D of this Application.

‘Confidential Information’ means any information provided to the Customer by, or on behalf of EMERGE HEALTH which is related to the terms of the Contract or related to EMERGE HEALTH’s business, products, services, property, affairs, employees or other officers, whether disclosed in writing, orally or by any other means).

'Contract' means the agreement for the Customer to purchase, and EMERGE HEALTH to supply, the Goods and Services in accordance with these Conditions and any other specific terms and conditions agreed in writing between the parties.

'Customer' means the applicant as set out in Part A of this Application.

‘Delivery Address’ means the address to which the Customer will accept delivery of the Goods as set out in Part A of this Application or in the relevant Order.

'Force Majeure Event' includes but is not limited to an Act of God, war, riot, fire, explosion, accident, flood, sabotage, inability to obtain fuel, power, raw materials, labour or transportation facilities, governmental laws, regulations, orders, requests or action, breakage or failure of machinery or apparatus, national defence requirements or any other event beyond the reasonable control of EMERGE HEALTH or in the event of labour trouble, strike, lockout or injunction (whether or not such labour event is within the reasonable control of EMERGE HEALTH).

‘EMERGE HEALTH’ means EMERGE HEALTH PTY LTD ABN 59 743 950 697, Suite 3, Level 1, 2 Theatre Place, Canterbury VIC 3126, Australia.

‘Goods and Services' means the goods and services provided to the Customer by EMERGE HEALTH from time to time as set out in the Order placed by the Customer from time to time or as otherwise agreed in writing between the Customer and EMERGE HEALTH.

‘GST’ means GST as defined in A New Tax System (Goods and Services and Goods and Services Tax) Act 1999 as amended (GST Act) or any replacement or other relevant legislation and regulations.

'Liability' means any debt, obligation, cost (including legal costs), expense, loss, damage, compensation, charge, penalty or liability of any kind including those that are prospective or contingent and those the amount of which is not ascertained or ascertainable.

‘Notice Address’ means the postal address for the Customer set out in Part A of this Application and with respect to EMERGE HEALTH means the address set out on the first page of this Application.

Order means the written order placed by the Customer for the supply of the Goods and Services by EMERGE HEALTH.

‘Parties’ means both EMERGE HEALTH and the Customer.

'Purchase Price' means the prices quoted by EMERGE HEALTH to the Customer for the supply of the Goods and Services.

‘Relevant Authority’ means any Commonwealth, State, Territorial, local, public or other government authority or council having jurisdiction over the Customer, EMERGE HEALTH or the Goods and Services.