Credit Application Terms and Conditions

Standard Trading Terms

These trading terms apply to, and are incorporated into, all contracts for the supply of goods and/or services by EMS. They cannot be varied by you (including by terms on a purchase order). We may vary these trading terms by updating the version on our website, or by written agreement with you (including additional special conditions). You accept these trading terms by purchasing goods and/or services, operating an account with EMS or otherwise conducting business with EMS.

1. Contract

A quotation from EMS is not an offer. A contract is only formed when we accept your order (subject to the goods passing our pre-delivery inspection). A contract may not be cancelled except by mutual agreement. If we agree to cancel, we may charge a reasonable fee for goods ordered and our processing, delivery (if applicable) and handling/restocking costs.

2. Prices

All prices are in Australian dollars and are subject to change without notice.

3. Payment

You agree to pay in full in accordance with the terms indicated on our invoice. If no terms are indicated on our invoice and you have an account with EMS then you agree to pay within 30 days of the end of the month in which the invoice is issued. A 0.96% incl GST surcharge will apply to all payments by credit card.

4. Credit Limit

We will determine the credit limit for your account and may change this credit limit at any time without notice or reason.

5. Delivery

Delivery to your transport agent constitutes delivery to you. You must pay all delivery costs and EMS is not responsible for damage in transit. If EMS delivers to you, you must pay the delivery fee (if any) notified by EMS from time to time. EMS is entitled to a reasonable extension of time for delay beyond our reasonable control and is not liable for loss or damage arising from delivery delays.

6. Deemed acceptance

You are deemed to have accepted the goods as being of acceptable quality and as ordered unless you notify EMS of your intention to make a credit claim within 5 Business Days after receipt.

7. Returns and credit claims

Subject to the express and implied warranty/condition provisions below, EMS may in its absolute discretion accept or reject a return or credit claim. To make a claim you must, at your cost, return the goods to EMS within 30 days of the invoice date and provide proof of purchase and the reason for the return.

Returned goods must be unaltered, undamaged, in original packaging, and received clean and resaleable.

For claims after 30 days, you must provide details of the special circumstances and obtain EMS’s prior approval before returning the goods. If approved, a restocking fee applies: 15% (30–45 days) and 20% (45–60 days) of the value of the returned goods.

Warranty does not include labour costs, it only covers the faulty parts.

No returns and credit claims will be accepted more than 60 days after the invoice date.

8. Implied Conditions and Warranties

All implied terms, conditions and warranties (other than those implied by law that cannot be excluded) are excluded. To the extent permitted by law, our liability for terms, conditions and warranties that cannot be excluded is limited to:

a. The cost of replacing the goods;

b. The cost of obtaining equivalent goods;

c. The cost of having the goods repaired.

9. Implied warranty/ conditions credit claims

You may make a credit claim for goods which breach the implied warranties/conditions that cannot be excluded by law. This claim must be made within a reasonable time.

We will not accept claims made after deemed acceptance if the claim relates to matters apparent on inspection (e.g. damage, defect or goods not as ordered). If requested, you must provide evidence of the delivery date. To make a claim you must provide proof of purchase, the reason for the claim, evidence of the breach (e.g. a photo) and details of when the breach became known to you or your customer. You must return the goods to EMS so we can assess the claim, or (where wrong goods were supplied) return the goods within 3 Business Days of making the claim. Where wrong goods were supplied, returned goods must be unaltered, in original packaging, and received clean and resaleable.

If an implied warranty/condition that may not be excluded at law is breached, a credit will be granted for the price of the goods. EMS is not liable for freight or delivery costs for delivery of the original goods to you or their return to EMS. If requested by EMS, you must destroy damaged or defective goods if not returned to EMS and provide evidence of this.

10. Express Warranties

Some goods are sold with express warranties. Details are available on our website or on request. Credit claims may be made for goods that breach an express warranty.

Express warranty credit claims – You may make a credit claim for goods that breach an express warranty in accordance with the express warranty terms and procedures. You must make the claim within the specified time and comply with all warranty conditions (including use, installation and maintenance). You must provide EMS with proof of purchase, the reason for the claim and evidence of the breach. You must return the goods to EMS (at your cost) within 3 Business Days after making the claim so EMS can assess it, or if agreed by EMS provide a photo as evidence. If an express warranty is breached, a credit will be granted for the price of the goods. If a credit claim is granted, you must destroy the goods if they are not returned to EMS.

11. Passing of title and risk

Risk in the goods passes to you on delivery to you or your transport agent. EMS retains legal and equitable title to the goods until payment is made for all goods supplied to you from time to time. Until payment, you hold the goods as fiduciary agent and bailee for EMS and must return them on request. You may, as fiduciary agent, sell or deal with the goods in the ordinary course of business, but you have no right to bind EMS to any liability to any third party. You hold all proceeds of any dealing with the goods on trust for EMS in a separate account until your liability to EMS is discharged. EMS may appropriate payments as it thinks fit, despite any appropriation by you. Until you become owner of the goods you must store them separately, keep them in good and saleable condition, secure from risk, damage or theft, and fully insured against those risks.

12. PPSR

You agree the retention of title clause above gives rise to a security interest (as defined in the Personal Property Securities Act 2009 (PPSA)) in all goods and/or services, present and after-acquired. You acknowledge EMS may perfect that security interest by registration on the Personal Property Securities Register (PPSR). You waive any entitlements to notices under the PPSA. You must do all things and execute (or procure execution of) all documents EMS requires to perfect a first ranking security interest in the goods and/or services. Non-compliance with this clause is a breach of this Agreement. Any costs associated with enforcement of EMS’s rights under the PPSA are payable by you.

13. Default by You

If you default or fail to make due payment for any goods and/or services supplied to you from time to time, EMS may (without prejudice to its other rights) do any or all of the following:

a. Withdraw all credit facilities without notice until your account is brought within terms;

b. Change your credit limit;

c. Notify you that all monies owing under your account are immediately due and payable;

d. Charge interest on overdue monies daily until payment at the rate of 15% per annum;

e. Charge you, at our discretion, an administration fee of $25 per outstanding invoice which is immediately due and payable;

f. Require you to pay on demand legal costs on a solicitor and own client basis or any other expenses whatsoever incurred by EMS in respect of the enforcement or attempted enforcement of our rights under this agreement (including collection agent costs, entry and removal costs and dishonoured cheque fees);

g. Withhold any further deliveries of goods whether in transit or not;

h. Where goods have been delivered, enter your premises or any premises under your or your agent’s control where the goods are stored and use reasonable force to recover the goods without any liability of whatever nature to you or your agent;

i. Where goods have been recovered we may dispose of the goods to any person on any terms we deem necessary without liability of any kind to you and we shall be entitled to recover the difference between the purchase price owed by you and the net proceeds of the sale of the repossessed goods;

j. Resell any goods repossessed for our own benefit without liability to you for any loss resulting from the resale;

k. Suspend and/or terminate performance without penalty of any other contract for sale;

l. Require payment in cash before or upon delivery of further goods to you;

m. Withhold documents which are in our possession;

n. Appropriate and apply all monies and credits/adjustment notes received by EMS at our discretion. For example we may apply them firstly to payment of our recovery costs, then to interest due, then towards payment of the debt for supply of the goods;

14. Charge and Caveat in Land

To secure your punctual payment under this agreement for goods and the performance of your obligations and other money that may become owing to EMS because of your actions:

a. You agree to an equitable mortgage and/or charge in our favour of all joint and several interests in any land or realty in which you now own or which you may later acquire any such interest in, to secure all amounts and other monetary obligations payable by you under this Agreement; and

b. You acknowledge and agree that we are entitled to lodge a caveat or any other document necessary to secure:

i. Payment of any money you are required to pay; and

ii. Your payment of any damages payable by you for your failure or delay to fulfil any of your obligations,

in connection with this Agreement.

15. Security Interest of present and after acquired property.

a. You agree to grant to EMS a security interest (as defined in the PPSA) over all PPS Property to secure your punctual payment under this agreement for goods and the performance of your obligations and other money that may become owing to EMS as a result of your actions.

b. Nothing in this Agreement may be interpreted that any Security Interest attaches later than the time contemplated by section 19(2) of the PPSA.

c. At our request, you must promptly provide EMS with all required information necessary to ensure that any registration of our Security Interests on the PPS Register is, and remains, fully effective or perfected, or both, and that each Security Interest in favour of EMS has the priority required by EMS.

d. You acknowledge that we have not agreed to subordinate any Security Interest that we have in any of the PPS Property to any other interest in any of the PPS Property.

e. You acknowledge, if you dispose of or otherwise deal with the PPS Property or an interest in it in breach of this clause, that we have not authorised the disposal or agreed that the dealing would extinguish any Security Interest that we hold over the PPS Property, and that our Security Interest continues in the PPS Property or interest, despite the disposal or dealing.

f. You will promptly execute or procure the execution of all documents required by EMS to register the Security Interest in all PPS Property.

g. You will pay for all costs associated with registering the Security Interest in the PPS Property.

h. The Security Interest in your PPS Property will be deregistered upon:

i. The return of goods to EMS in the condition and state required by this agreement; and

ii. The full payment to EMS of all money you are required to pay in accordance with this Agreement.

16. Bank Guarantee

In consideration of EMS granting you a credit account, EMS may require you to provide a bank guarantee in the amount of the credit limit approved by EMS, for a period set by EMS, to secure performance under this Agreement. EMS may have recourse to the bank guarantee if you fail to pay an amount in accordance with this Agreement and 5 days have elapsed since EMS gave you notice of its intention to have recourse.

17. Representations

Subject to the express and implied warranty provisions above, EMS is not liable for any advice given by its agents or employees about the suitability of goods or materials for any purpose. Any such advice is relied on at your own risk. Our agents and employees are not authorised to vary or add to these trading terms.

18. Liability and release

Subject to the express and implied warranty provisions above, EMS is not liable for, and you release EMS from, all liability for any direct, indirect, consequential or punitive loss or damage (including loss of profit) arising out of anything done or not done by EMS, its employees, officers or agents in connection with the supply of the goods (whether arising through negligence or otherwise). This includes loss or damage arising from injury, death, property damage, use of the goods, infringement of intellectual property rights or defects in the goods. To the fullest extent permitted by law, you indemnify EMS against any third-party liability arising in connection with the supply of the goods.

19. Confidential Information

Any information relating to EMS’s business that is communicated to you is confidential. You must keep it strictly confidential and use it only as a customer of EMS. These obligations continue after our trading relationship ends. You are not required to keep information confidential if disclosure is required by law or the information is in the public domain (other than due to your breach).

20. Privacy Policy

EMS collects personal information about you for the purposes set out in our Privacy Policy, which is available free of charge on request. The Privacy Policy describes what we collect, how we collect and use it, how you may access or correct it, and how you may complain about our management of the information. By instructing EMS to supply goods, you consent to EMS collecting, handling, using, disclosing and otherwise dealing with your personal information (including credit-related personal information) in accordance with the Privacy Policy and Australian privacy laws.

21. Set off

You must not set off or counterclaim against amounts owing to EMS.

22. Signing Authority Warranty

You warrant that the people who have signed the Account Application Form forming this Agreement are authorised by you to do so.

23. Trust/Partnership indemnity warranty

You and each person signing this Agreement on your behalf, in circumstances whereby you are a trust or partnership, warrant that you/they have the right to be indemnified out of the trust or partnership assets in relation to any liability arising from this Agreement.

24. Guarantee

In consideration of EMS agreeing to supply the Customer with goods on credit, the Guarantor guarantees to EMS the due payment by the Customer for all goods and/or services supplied from time to time and for all debts whatsoever and howsoever arising in respect of goods and/or services supplied. This is a continuing guarantee and a principal obligation, and is not affected by any set off or cross-claim the Customer may have or claim to have against EMS. EMS may, without notice to the Guarantor, grant indulgences to the Customer, waive compliance with these Trading Terms or amend these Trading Terms. EMS is not required to notify the Guarantor of any default by the Customer. In addition:

a. If more than one guarantor is listed in the Credit Application Form, each Guarantor is jointly and severally liable to EMS for the guarantee and indemnity given in accordance with this clause.

b. The Guarantor unconditionally and irrevocably guarantees to EMS:

i. Your payment of any money you are required to pay;

ii. Your performance and observance of your obligations; and

iii. Your payment of any damages payable by you for your failure or delay to fulfil any of your obligations, in connection with this Agreement.

c. If you default in:

i. The payment of any amount due in connection with this Agreement, the Guarantor must pay that amount on demand to EMS; or

ii. The performance and observance of any of your other obligations in connection with this Agreement, the Guarantor must pay to EMS on demand all losses, damages, expenses and costs (including legal costs on an indemnity basis) which we are entitled to recover because of that default, whether or not we have exercised or exhausted our remedies for their recovery from you.

d. As a separate and additional guarantee and indemnity, the Guarantor indemnifies EMS in respect of:

i. All risks and liabilities (including legal costs on an indemnity basis) incurred by EMS arising directly or indirectly in connection with any default, delay act or omission by you in the performance and observance of your obligations in connection with this Agreement; and

ii. Any money payable in connection with this Agreement (including money which would have been payable if it were recoverable) which is not recoverable from you for any reason and whether or not:

1. Any transaction relating to any money payable in connection with this Agreement was void or illegal or has been avoided; or

2. Anything relating to that transaction was or ought to have been known to EMS.

iii. Any amount claimed by or paid to a liquidator under Part 5.7B of the Corporations Act 2001 (Cth) including legal costs we incur in respect of any such claim made by a liquidator.

e. You and any Guarantor agree to an equitable mortgage and/or charge in our favour all joint and several interests in any land or realty in which you now own or which you may later acquire any such interest in, to secure all amounts and other monetary obligations payable under this Agreement.

f. You and any Guarantor acknowledge and agree that we are entitled to lodge a caveat or any other document necessary to secure:

i. Payment of any money you are required to pay; and

ii. Your payment of any damages payable by you for your failure or delay to fulfil any of your obligations, in connection with this Agreement.

g. This clause 24 contains a continuing guarantee and indemnity despite any settlement of account, intervening payment or anything else until all money payable in connection with this Agreement has been paid in full, and all your other obligations in connection with this Agreement have been performed and observed.

25. Trust Company

If you enter into this agreement as a trustee then you agree that you are as trustee subject to these terms and liable to pay all monies outstanding at any time and warrant that the assets of the trust are available to meet these liabilities.

26. Credit Enquiries

You and the Guarantor consent to EMS making any enquiries of whoever is deemed necessary (including credit reference agencies and trade referees) for the purpose of assessing the credit application or for the collection of overdue payments and permit these people to give information to EMS without restriction. You and the Guarantor consent to EMS providing personal and commercial credit information (including details of credit worthiness or any default) to a trade insurer or other credit providers who are using the information to assess a credit application.

27. Governing Law

These Trading Terms are to be construed in accordance with the laws of Queensland. The parties submit unconditionally to the exclusive jurisdiction of the Courts and appellate Courts of Queensland located in Brisbane.

28. Sale of Business

You must notify EMS in writing of any change of address or ownership of your business within 7 days of the commencement of such change.

29. Enforceability

If any provision of this Agreement is unenforceable, that provision is severed to the extent necessary and the remainder remains in full force and effect.

30. Waiver

No waiver or variation is effective unless expressly made in writing by EMS.

31. Assignment

You cannot assign these Trading Terms without our prior written consent. We can assign these Trading Terms to a third party without your consent.

32. Force Majeure

If an event outside EMS’s reasonable control prevents or delays performance of our obligations, that obligation is suspended for the duration of the delay. If the delay continues for 3 months, either party may terminate the relevant contract for the sale of goods by written notice to the other.

33. Electronic Signatures

The parties consent to execution of this Agreement by electronic signature under section 14 of the Electronic Transactions (Queensland) Act 2001. Electronic communications: The parties consent to giving and receiving information by electronic communication under sections 11 and 12 of that Act.

EMS may send and receive documents electronically. You acknowledge electronic transmission is not secure and may be copied, recorded, read or interfered with by third parties in transit. If you ask EMS to transmit documents electronically (or accept documents electronically), you release EMS from any claim arising from unauthorised copying, recording, reading or interference, delay or non-delivery, or any damage caused to your system or files.