1. Definitions
In these Terms:
ACL means the Australian Consumer Law Schedule of the Competition and Consumer Act 2010 (Cth) and its associated Regulations as amended;
Consumer is as defined in the ACL and in determining if the Customer is a consumer, the determination is made if Customer is a consumer under the Order;
Customer means the person, jointly and severally if more than one, acquiring goods or services from the Supplier;
goods means goods supplied by the Supplier to the Customer;
GST means the Goods and Services tax as defined in A New Tax System (Goods and Services Tax) Act 1999 (Cth) and its associated Regulations as amended;
Order means every order from the Customer for the purchase of goods or services from the Supplier;
PPSA means the Personal Property Securities Act 2009 (Cth) and its associated Regulations as amended;
services means services supplied by the Supplier to the Customer;
Supplier means EMS Oceania Pty Ltd ABN 91 629 590 138; and
Terms means these Terms and Conditions of Trade.

2. Goods and Services
2.1. Supplier may add, remove or vary goods in its range of goods and services, or those available for purchase by the Customer, without notice.
2.2. The right to vary goods includes without limitation country of origin, materials, dimensions and colours.

3. Quotation
3.1. When making an enquiry for goods or services, the Customer must provide the Supplier with its specific requirements, if any, in relation to the goods and services.
3.2. In response to an enquiry, the Supplier may choose to provide a quotation.
3.3. Any quotation provided by the Supplier to the Customer for the proposed supply of goods or services is

(a) valid for 30 days;
(b) an invitation to treat only; and
(c) only valid if in writing.

3.4. The quotation may contain additional terms, which to the extent of any inconsistency supersede these Terms.

4. Orders
4.1. Upon receipt of a quotation, the Customer may place an Order with the Supplier. The Order is an offer.  The Supplier may choose in its discretion to accept the Order.
4.2. Upon acceptance of an Order in writing or by electronic means, the parties enter into a legally binding contract on the terms of these Terms and any additional terms set out in the quotation. These terms cannot be varied or replaced by any other terms, including the Customer’s terms and conditions of purchase.
4.3. The Seller may cancel any Order without penalty no later than 7 days before the estimated delivery date of the goods or services.

5. Pricing
5.1. Prices quoted for the supply of goods and services are exclusive of GST and any other taxes or duties, unless expressly stated otherwise.
5.2. If the cost of the goods to the Supplier increases between the time of quotation and delivery due to circumstances beyond the Supplier’s control, then the Supplier may pass this additional cost on to the Customer and the Customer must pay such cost.
5.3. When reselling the goods, the Customer may do so at a price of its choosing and the Supplier’s recommended retail price (RRP) is a suggestion only.

6. Payment
6.1. Unless otherwise agreed in writing:

(a) Subject to 1(b), full payment for the goods or services must be made within 30 days of the date of the Supplier's invoice.
(b) The Supplier reserves the right to require payment in part or in full on placement or order or on delivery of the goods or completion of the services.

6.3. Payment by cheque is not deemed made until the proceeds of the cheque have cleared.
6.4. Payment terms may be revoked or amended at the Supplier’s sole discretion immediately upon giving the Customer written notice.
6.5. The time for payment is of the essence.

7. Payment Default
7.1. If the Customer defaults in payment by the due date of any amount payable to the Supplier, then all money which would become payable by the Customer to the Supplier at a later date on any account, becomes immediately due and payable without the requirement of any notice to the Customer, and the Supplier may, without prejudice to any of its other accrued or contingent rights:

(a) suspend the provision of credit and require payment before delivery;
(b) charge the Customer interest on any sum due at the prevailing rate pursuant to the Penalty Interest Rates Act 1983 (Vic) for the period from the due date until the date of payment in full;
(c) charge the Customer for, and the Customer must indemnify the Supplier from, all costs and expenses (including without limitation all legal costs and expenses) incurred by it resulting from the default or in taking action to enforce compliance with the Agreement or to recover any goods;
(d) cease or suspend supply of any further goods or services to the Customer;
(e) by written notice to the Customer, terminate any uncompleted contract with the Customer.

7.2. Clauses 1(d) and 7.1(e) may also be relied upon, at the Supplier's option:

(a) where the Customer is a natural person and becomes bankrupt or enters into any scheme of arrangement or any assignment or composition with or for the benefit of his or her creditors or any class of his or her creditors generally; or
(b) where the Customer is a corporation and, it enters into any scheme of arrangement or any assignment or composition with or for the benefit of its creditors or any class of its creditors generally, or has a liquidator, administrator, receiver or manager or similar functionary appointed in respect of its assets, or any action is taken for, or with the view to, the liquidation (including provisional liquidation), winding up or dissolution without winding up of the Customer.

8. Passing of property
8.1 Until the Supplier receives full payment in cleared funds for all goods and services supplied by it to the Customer, as well as all other amounts owing to the Supplier by the Customer:

(a) title and property in all goods remain vested in the Supplier and do not pass to the Customer;
(b) the Customer must hold the goods as fiduciary bailee and agent for the Supplier;
(c) the Customer must keep the goods separate from its goods and maintain the Supplier’s labelling and packaging;
(d) the Customer must hold the proceeds of sale of the goods on trust for the Supplier in a separate account with a bank to whom the Customer has not given security however failure to do so will not affect the Customer's obligation as trustee;
(e) in addition to its rights under the PPSA, the Supplier may without notice, enter any premises where it suspects the goods are and remove them, notwithstanding that they may have been attached to other goods not the property of the Supplier, and for this purpose the Customer irrevocably licences the Supplier to enter such premises and also indemnifies the Supplier from and against all costs, claims, demands or actions by any party arising from such action.

9. Personal Property Securities Act
9.1. Notwithstanding anything to the contrary contained in these Terms, the PPSA applies to these Terms.
9.2. For the purposes of the PPSA:

(a) terms used in clause 9 that are defined in the PPSA have the same meaning as in the PPSA;
(b) these Terms are a security agreement and the Supplier has a Purchase Money Security Interest in all present and future goods supplied by the Supplier to the Customer and the proceeds of the goods;
(c) the security interest is a continuing interest irrespective of whether there are monies or obligations owing by the Customer at any particular time; and
(d) the Customer must do whatever is necessary in order to give a valid security interest over the goods which is able to be registered by the Supplier on the Personal Property Securities Register.

9.3. The security interest arising under this clause 9 attaches to the goods when the goods are collected or dispatched from the Supplier's premises and not at any later time.
9.4. Where permitted by the PPSA, the Customer waives any rights to receive the notifications, verifications, disclosures or other documentation specified under sections 95, 118, 121(4), 130, 132(3)(d), 132(4), 135 and 157 of the PPSA.
9.5. The Supplier and the Customer agree to contract out of and nothing in the provisions of sections 96, 125, 129, 142 and 143 of the PPSA will apply to these Terms.
9.6. To the extent permitted by the PPSA, the Customer agrees that:

(a) the provisions of Chapter 4 of the PPSA which are for the benefit of the Customer or which place obligations on the Supplier will apply only to the extent that they are mandatory or the Supplier agrees to their application in writing; and
(b) where the Supplier has rights in addition to those in Chapter 4 of the PPSA, those rights will continue to apply.

9.7. The Customer must immediately upon the Supplier's request:

(a) do all things and execute all documents necessary to give effect to the security interest created under these Terms; and
(b) procure from any person considered by the Supplier to be relevant to its security position such agreements and waivers (including as equivalent to those above) as the Supplier may at any time require.

9.8. The Supplier may allocate amounts received from the Customer in any manner the Supplier determines, including in any manner required to preserve any Purchase Money Security Interest it has in goods supplied by the Supplier.
9.9. For the purposes of section 275(6) of the PPSA, the parties agree and undertake that these Terms and any information pertaining to the sale of goods and details of the goods shall be kept confidential at all times. Neither party may disclose any information pertaining to these Terms or the sale of the goods, except as otherwise required by law or that is already in the public domain.

10. Risk and Insurance
10.1. The risk in the goods and all insurance responsibility for theft, damage or otherwise will pass to the Customer immediately on the goods being delivered to the Customer or taken from the Supplier’s premises.
10.2. The goods are sold to the Customer on the basis that the Customer has obtained all necessary licenses or permits under all relevant laws and regulations in relation to the goods.
10.3. The Customer assumes all risk and liability for loss, damage or injury to persons or to property of the Customer, or third parties arising out of the use, installation or possession of any of the goods sold by the Supplier, unless recoverable from the Supplier on the failure of any statutory guarantee under the ACL.

11. Performance of Terms
11.1. Any period or date for delivery of goods or provision of services stated by the Supplier is an estimate only and not a contractual commitment.
11.2. The Supplier will use its reasonable endeavours to meet any estimated dates for delivery of the goods but will not be liable for any loss or damage suffered by the Customer or any third party for failure to meet any estimated date.
11.3. If the Supplier cannot complete the services by any estimated date, it will complete the services within a reasonable time.

12. Delivery
12.1. Subject to clause 6, the Supplier will arrange for the delivery of the goods to the Customer.
12.2. Unless expressly stated in a quotation, the Supplier is responsible for all costs associated with delivery, including freight, insurance and other charges arising from the point of dispatch of the goods to the Customer to the point of delivery.
12.3. The Supplier may make part delivery of goods or provision of services and the Supplier may invoice the Customer for the goods or services provided.
12.4. The Customer indemnifies the Supplier against any loss or damage suffered by the Supplier, its sub-contractors or employees as a result of delivery, except where the Customer is a consumer and the Supplier has not used due care and skill.
12.5. It is the Customer’s responsibility to inspect delivered goods. Any claims for short delivery or misdelivery must be notified to the
Supplier within 7 days of delivery.

13. Returns
13.1. Change of mind or change of circumstances returns may be accepted at the Supplier’s discretion, and subject to conditions, at the Supplier’s absolute discretion. The Customer acknowledges that any goods especially manufactured, modified or ordered will never be returnable for a change of mind or change in the Customer’s circumstances.
13.2. The Supplier may charge a restocking fee on a change of mind or change of circumstances return.

14. Liability
14.1. Except as the Terms specifically state, or as contained in any express warranty provided in relation to the goods or services, the Terms do not include by implication any other term, condition or warranty in respect of the quality, merchantability, acceptability, fitness for purpose, condition, description, assembly, manufacture, design or performance of the goods or services or any contractual remedy for their failure.
14.2. If the Customer is a Consumer nothing in these Terms restricts, limits or modifies the Customer's rights or remedies against the Supplier for failure of a statutory guarantee under the ACL.
14.3. If the Customer is not a Consumer, then Supplier’s liability under Part 3-2 of the ACL (other than in respect of sections 51, 52 or 53) is limited in the case of goods to the replacement of the goods or the supply of equivalent goods, the repair of the goods, the payment of the cost of replacing the goods or of acquiring equivalent goods, or the payment of the cost of having the goods repaired, and in the case of services the supplying of the services again, or the payment of the cost of having the services supplied again, other than where the Customer establishes that it is not fair or reasonable for the Supplier to rely on this term.
14.4. If the Customer on-supplies the goods to a consumer and:

(a) the goods or services are not of a kind ordinarily acquired for personal, domestic or household use or consumption, then the amount specified in section 276A(1) of the ACL is the absolute limit of the Supplier's liability to the Customer;
(b) the goods or services are of a kind ordinarily acquired for personal, domestic or household use or consumption, payment of any amount required under section 274 of the ACL is the absolute limit of the Supplier's liability to the Customer;
howsoever arising under or in connection with the sale, installation, use of, storage or any other dealings with the goods or services by the Customer or any third party.

14.5. If clause 2, 14.3 or 14.4 do not apply, then other than as stated in the Terms or any written warranty statement the Supplier is not liable to the Customer in any way arising under or in connection with the sale, installation, use of, storage or any other dealings with the goods or services by the Customer or any third party.
14.6. The Supplier is not liable for any indirect or consequential losses or expenses suffered by the Customer or any third party, howsoever caused, including but not limited to loss of turnover, profits, business or goodwill or any liability to any other party, except to the extent of any liability imposed by the ACL.
14.7. The Customer acknowledges that:

(a) it has not relied on any service involving skill and judgement, or on any advice, recommendation, information or assistance provided by the Supplier in relation to the goods or services or their use or application.
(b) it has not made known, either expressly or by implication, to the Supplier any purpose for which it requires the goods or services and it has the sole responsibility of satisfying itself that the goods or services are suitable for the use of the Customer.

14.8. Nothing in the Terms is to be interpreted as excluding, restricting or modifying or having the effect of excluding, restricting or modifying the application of any State or Federal legislation applicable to the sale of goods or supply of services which cannot be excluded, restricted or modified.

15. Cancellation
15.1. If the Supplier is unable to deliver the goods or provide the services, then it may cancel the Customer's order (even if it has been accepted) by written notice to the Customer.
15.2. No purported cancellation or suspension of an order or any part of it by the Customer is binding on the Supplier once the order has been accepted.

16. Shortages and Exchanges
16.1. Subject to clause 2 and 16.4, the Supplier will not be liable for any shortages, over-supply, damage or non-compliance with the specifications in the Terms unless the Customer notifies the Supplier with full details and description within 10 days of delivery otherwise the Customer is deemed to have accepted the goods.
16.2. When any shortages, claim for damaged goods or non-compliance with the Order specifications is accepted by the Supplier, the Supplier may, at its option, replace the goods, or refund the price of the goods.
16.3. Subject to clause 4, the Supplier will not under any circumstances accept goods for return that:

(a) have been specifically produced, imported or acquired to fulfil the Terms;
(b) are discontinued goods or no longer stocked by the Supplier;
(c) have been altered in any way;
(d) have been used; or
(e) are not in their original condition and packaging.

16.4. If the Customer is a consumer, nothing in this clause 16 limits any remedy available for a failure of the guarantees in sections 56 and 57 of the ACL.

17. Force Majeure
17.1. The Supplier is not liable in any way howsoever arising under the Terms to the extent that it is prevented from acting by events beyond its reasonable control including, without limitation, industrial disputes, strikes, lockouts, accident, breakdown, import or export restrictions, acts of God, acts or threats of terrorism or war. If an event of force majeure occurs, the Supplier may suspend or terminate the Order or Terms by written notice to the Customer.

18. Miscellaneous
18.1. The law of Victoria from time to time governs the Terms. The parties agree to the non-exclusive jurisdiction of the courts of Victoria, the Federal Court of Australia, and of courts entitled to hear appeals from those Courts.
18.2. The Supplier’s failure to enforce any of these Terms shall not be construed as a waiver of any of the Supplier’s
18.3. If a clause is unenforceable it must be read down to be enforceable or, if it cannot be read down, the term must be severed from the Terms, without affecting the enforceability of the remaining terms.
18.4. A notice must be in writing and handed personally or sent by email, facsimile or prepaid mail to the last known address of the addressee. Notices sent by pre-paid post are deemed to be received upon posting.  Notices sent by facsimile or email are deemed received on confirmation of successful transmission.
18.5. The Customer must comply with the Australian Privacy Principles in connection with any personal information supplied to it in connection with this Agreement