TERMS AND CONDITIONS OF TRADE
1.1 All quotations made by Emerge Health Pty Ltd ACN 145 180 865 (‘Emerge’) and all orders for goods and/or services made by you (the Customer) are accepted subject to the following terms and conditions of trade.
1.2 No further terms and conditions not included in the general terms and conditions of trade will be deemed to form part of the agreement between Emerge and the Customer unless those further terms and conditions are agreed to by Emerge in writing.
2.1 Customers must place orders by email, fax or mail.
2.2 The price invoiced for goods supplied under customer orders will be the current price for those goods, at the date of order, according to Emerge’s list price, unless other arrangements are made before or at the time the order is placed. Any enquiry concerning the price of goods to be charged in an order should be made by the customer at the time the order is placed. Emerge’s list price for goods is subject to change without notice.
2.3 Orders will incur a delivery and handling charge, according to Emerge’s price list.
2.4 No cancellation, variation or suspension will be effective or recognised unless and only to the extent that Emerge agrees in writing to such cancellation, variation or suspension. Also, credits will not be issued for short-dated or expired product except by prior arrangement.
2.5 The customer agrees to accept delivery of all goods held by Emerge in respect of such order and all goods in transit to or subsequently delivered to the customer.
2.6 The customer agrees to pay all costs, expenses and liabilities incurred by Emerge in consequence of the cancellation, variation or suspension of the order.
3. Payment for Goods
3.1 Subject to Clause 3.2, payment for goods or services purchased from Emerge by the Customer must be made by cleared funds to Emerge with placement of the order unless otherwise agreed by Emerge.
3.2 If Emerge has agreed to provide a credit account to the Customer, the Customer must pay Emerge by way of cleared funds within its payment terms which are 7 days from the date of the issue of a tax invoice.
3.3 If the Customer does not pay Emerge within 7 days of being issued a tax invoice, Emerge will charge interest of 2% per month of the total amount outstanding.
4.1 If the goods and services tax (GST) has application to any supply made under this contract, the Customer will pay to Emerge the price of the goods or services supplied together with the amount payable for GST. Emerge will show the GST on its invoices in accordance with the requirements of the relevant taxation legislation.
5.1 Emerge shall retain both the legal and equitable ownership of any goods supplied to the Customer until the purchase price in respect of such goods has been received in full by Emerge by way of cleared funds.
5.2 If the Customer fails to make payment of the purchase price by the due date or action is commenced to place the Customer into voluntary administration, liquidation, receivership or external management, or if Emerge has reasonable grounds to believe that for whatever reason, the Customer may be unable to pay for the goods then, the Customer by accepting delivery of the goods, agrees to a representative or agent of Emerge entering upon any premises in the Customer’s control to take possession of the goods and agrees to deliver up on demand by Emerge, the goods in good and merchantable condition. Further, the Customer indemnifies Emerge its directors, employees, agents and contractor against any action, claim or other demand which may arise out of any lawful act done by Emerge or its representative or agent in exercise of its rights pursuant to this clause. Further, Emerge shall be entitled to resell any goods which it has taken into possession pursuant to this clause and it shall be released from all its obligations under the contract of sale with the Customer.
5.3 Until payment is made in full to Emerge, the Customer may resell the goods only as a fiduciary agent of Emerge. The Customer does not have any right to bind Emerge by contract or otherwise to any third party.
5.4 The Customer will keep the goods insured whilst the goods remain in its possession or control until payment in full is made to Emerge and the Customer will note Emerge as the beneficiary on the contract of insurance until the goods are paid for in full.
5.5 All proceeds (whether tangible or not) with respect to any dealing with the goods will be held by the Customer on trust for Emerge and the Customer will keep such proceeds in a separate account and will further keep such records to enable identification of those proceeds and identification of the goods to which those proceeds relate and will make available to Emerge those records on demand, until such time as Emerge has been paid in full for the goods.
6.1 Where the Customer is in default in the performance of any of its obligations under the terms and conditions of trade, Emerge may at its election and without prejudice to any of its other rights, refuse to supply or deliver further goods or services to the Customer.
6.2 All costs and expenses incurred by Emerge in recovering monies due to it from the Customer (including legal, administrative or other collection costs) will be payable by the Customer within seven (7) days of written demand being made to it by or on behalf of Emerge.
7. Warranties and Liabilities
7.1 Subject to the terms of any written warranty which may be provided by Emerge and the provisions of any legislation dealing with the rights of Emerge to limit its liability (for example, the Trade Practices Act (C’th)), where the goods provided by Emerge to the Customer are demonstrated to Emerge’s reasonable satisfaction to be defective, the liability of Emerge for breach of any express or implied condition, warranty as to quality, description, fitness for purpose or condition is limited to the following as determined by Emerge:
1. the payment of the replacement cost of the goods or
2. the replacement of the goods.
7.2 Subject to Clause 7.1 and to any applicable legislation affecting the right of Emerge to limit its liability, Emerge shall not be liable in any way whatsoever to the Customer or to any other person or entity for any loss or damage howsoever caused which the Customer or any other person may suffer whether or not such loss or damage arises as a result of the goods or any defect in those goods or from the failure or omission on the part of Emerge (its directors, employees, agents and contractor) to comply with any obligation at law save that Emerge’s liability will be limited to the replacement as detailed in Clause 7.1.
8.1 Emerge will not be liable for any loss or damage arising due to delay in delivery of goods to the Customer.
8.2 The goods will be at Emerge’s risk until delivery and then the goods will be entirely at the Customer’s risk when delivered and if the goods are unattended and Emerge will not be responsible for any loss or damage caused to the goods once they are delivered.
8.3 The delivery docket signed by the cartage contractor or the driver of Emerge shall be conclusive evidence of delivery of the goods.
8.4 Emerge if requested to enter a property accepts no responsibility for any damage incurred to the property and goods lying on that property.
8.5 If the goods cannot be delivered during normal business hours to a customer due to the inability of the customer to receive goods, then the customer shall be liable to pay the additional costs of delivery.
8.6 Dates and times quoted for delivery are estimates only and any delay in delivery will not entitle the Customer to seek damages or any other remedy.
8.7 No alleged defect in the goods or claim in respect of the goods delivered will entitle the Customer to refuse to accept delivery of any other part of the goods ordered from Emerge.
9. Force Majeure
Emerge shall be entitled to give notice to the Customer to either extend the time for delivery of the goods for a reasonable period or to terminate this contract if Emerge is prevented from performing any of its obligations including (without limitation) making a delivery of goods by reason of force majeure. Without limitation, the following events shall constitute force majeure:-
Breakdown of plant or machinery, war, terrorist attack, strike, industrial dispute, government interference, transport delay, act of God, flood, accident, non delivery or shortage of supplies or any other cause not under Emerge’s control.
10. Damage or Defects
10.1 Immediately upon receipt of delivery of the goods, the Customer shall check the goods and notify Emerge of any damage, defects or other tax invoice inaccuracies including any short supply of goods, within seven (7) days of the date of delivery, such notice to be in writing. Emerge will endeavour to replace any damaged goods or remedy any inaccuracies as soon as reasonably practicable but will not be liable for any loss or damage which arises or results from any inaccuracy, damage or short supply save for its liability as set out in Clause 7 herein.
10.2 Failure to notify Emerge in accordance with Clause 10.1 above will preclude the Customer from taking any issue with respect to the items shown on the tax invoice or object to the price for the goods as listed on the tax invoice.
All content and functionality on the Site, including text, graphics, logos, icons, and images and the selection and arrangement thereof, is the exclusive property of Emerge or its licensors and is protected by Australian and international copyright laws. All rights not expressly granted are reserved.
The trademarks, service marks, designs, and logos (collectively, the “Trademarks”) displayed on the Site are the registered and unregistered Trademarks of Emerge and its licensors. You agree that you will not refer to or attribute any information to Emerge or its licensors in any public medium (e.g., press release, Web sites) for advertising or promotion purposes, or for the purpose of informing or influencing any third party and that you will not use or reproduce any Trademark of, or imply any endorsement by or relationship with, Emerge or its licensors.
3. Use of Site Content
Emerge hereby grants you a non-exclusive, non-transferable license for the term hereof to access and download, display, and print one copy of the content and functionality displayed on the Site (the “Site Content”) on any single computer solely for your internal, business use, provided that you do not modify the Site Content in any way and that you retain all copyright and other proprietary notices displayed on the Site Content. You may not otherwise reproduce, modify, distribute, transmit, post, or disclose the Site Content without Emerge’s prior written consent.
4. User Postings
You acknowledge and agree that Emerge shall own and have the unrestricted right to use, publish, and otherwise exploit any and all information that you post or otherwise publish on the Site in postings, survey responses, and otherwise, and you hereby waive any claims against Emerge for any alleged or actual infringements of any rights of privacy or publicity, moral rights, or rights of attribution in connection with Emerge’s use and publication of such submissions. You covenant that you shall not post or otherwise publish on the Site any materials that (a) are threatening, libelous, defamatory, or obscene; (b) would constitute, or that encourage conduct that would constitute, a criminal offense, give rise to civil liability, or otherwise violate law; (c) infringe the intellectual property, privacy, or other rights of any third parties; (d) contain a computer virus or other destructive element; (e) contain advertising; or (f) constitute or contain false or misleading statements. Emerge does not and cannot review all information posted to the Site by users and is not responsible for such information. However, Emerge reserves the right to refuse to post and the right to remove any information, in whole or in part, for any reason or for no reason.
5. Notices of Infringement and Takedown by Emerge
Emerge prohibits the posting of any information that infringes or violates the copyright rights and/or other intellectual property rights (including rights of privacy and publicity) of any person or entity. If you believe that your intellectual property right (or such a right that you are responsible for enforcing) is infringed by any content on the Site, please write to Emerge at the address shown below, giving a written statement that contains: (a) identification of the copyrighted work and/or intellectual property right claimed to have been infringed; (b) identification of the allegedly infringing material on the Site that is requested to be removed; (c) your name, address, and daytime telephone number, and an e-mail address if available; (d) a statement that you have a good faith belief that the use of the copyrighted work and/or exercise of the intellectual property right is not authorized by the owner, its agent, or the law; (e) a statement that the information in the notification is accurate, and, under penalty of perjury, that the signatory is authorized to act on behalf of the owner of the right that is allegedly infringed; and (f) the signature of the intellectual property right owner or someone authorized on the owner’s behalf to assert infringement of the right.
The content and functionality on the site is provided with the understanding that emerge is not herein engaged in rendering professional advice and services to you. All content and functionality on the site is provided “as is,” without warranty of any kind, either express or implied, including, without limitation, implied warranties of merchantability and fitness for a particular purpose. Emerge and its third-party content providers make no warranties, express or implied, as to the ownership, accuracy, or adequacy of the site content. Emerge shall have no liability or responsibility for any information published on linked web sites, contained in any user submissions published on the site, or provided by third parties. Neither emerge nor its third-party content providers shall be liable for any indirect, incidental, consequential, or punitive damages or for lost revenues or profits, whether or not advised of the possibility of such damages or losses and regardless of the theory of liability.
7. Third-Party Web Sites
8. Governing Law; Jurisdiction
These Terms are governed by the laws of the New South Wales without reference to the principles of conflicts of laws thereof.