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client terms EMPR®Australia
These Terms and Conditions apply to the supply of the Products and Services to the customer by EMPR® Australia. These Terms and Conditions and any document(s) referred to in them constitute the entire agreement about EMPR Australia ‘s supply of the Products and Services to the customer and supersedes all prior understandings, arrangements, representations and agreements. Words used in these Terms and Conditions which have special meanings are given capital letters and are defined in clause 1. A reference in these Terms and Conditions to: a. the singular includes the plural and vice versa; and b. the word “including” means “including, but not limited to,” and the word “includes” means “includes, without limitation,”.
- Definitions
- Orders
- Payment
- Delivery
- Part deliveries
- Inspection and acceptance
- Title and risk
- Returns
- Loss or damage in transit
- Force majeure
- Customers cancellation
- Default of customer
- Warranty
- Liability
- Credit
- Privacy
- Intellectual property
- Confidentiality
- General
1. Definitions
In these Terms and Conditions:
“Any reference to EMPR Australia means EMPR Australia Pty Ltd”
“Customer” means the person, business, company or other legal entity that is the purchaser of the Products and Services;
“Products” means the Products supplied to the customer by EMPR Australia and described in the Sales Invoice;
“Sales Contract” means any sales contract entered into by the customer and EMPR Australia in respect of the Products and Services supplied to the customer in which these Terms and Conditions are or are deemed to be incorporated;
“Sales Invoice” means the sales invoice issued by EMPR Australia in respect of the Products and Services supplied to the customer in which these Terms and Conditions are or are deemed to be incorporated;
“Services” means the services (if any) provided to the customer by EMPR Australia and described in the Sales Invoice; and
2. Orders
- EMPR Australia may reject any order placed by the customer if there is an insufficient supply of Products which prevents EMPR Australia from being able to fulfil such order.
- EMPR Australia will not be bound by any terms and conditions attaching to the customer's order and, unless those terms and conditions are expressly agreed in writing by an authorised representative of EMPR Australia, the customer agrees that those terms and conditions are excluded.
- EMPR Australia reserves the right to change and or correct prices, product availability & specifications due to any factors (refer point 10) without notice.
- A minimum order charge of $20 is applicable to all orders.
- Parts availability is advised based on known stock quantities at that time and could change without notice.
3. Payment
- The price of the Products and Services will be EMPR Australia's quoted price.
- Payment is required prior to delivery of the Products (unless agreed otherwise by EMPR Australia or its authorised representative). If the customer fails to make payment in accordance with this clause 3(b) after demand for payment by EMPR Australia all amounts owing by the customer to EMPR Australia on any account will immediately become due and payable.
- EMPR Australia may, in its sole discretion:
- suspend the provision of credit to the customer until all amounts owing are paid for in full; and
- From time to time and at any time, vary or cancel any credit facility it makes available to the customer.
- Unless stated otherwise in these Terms and Conditions (or in writing by an authorised representative of EMPR Australia ), all prices quoted for Products and Services are exclusive of all taxes, handling, delivery, agents' charges and any other charge, duty or impost.
- Account customers paying by Credit card will incur the associated surcharge applicable to that card.
- Customers paying by Credit card must ensure sufficient funds are available to cover the purchase. In the event a Credit card charge is declined EMPR will attempt to contact the customer once to rectify the issue or arrange an alternate payment method. If payment has not been received within 48 hours after this contact attempt the order will be cancelled and the stock returned into inventory as available sales stock.
4. Delivery
The delivery times made known to the customer are estimates only and EMPR Australia will not be liable for late delivery or non-delivery. Under no circumstances will EMPR Australia be liable for any loss, damage or delay suffered or incurred by the customer or its customers arising from late or non-delivery of the Products.
Orders which are to be picked-up from EMPR must be done so within 7 days of the stock being available. EMPR will attempt to contact customers by phone or email to inform them that an order is ready for pick-up. If contact cannot be established after two attempts or the order is not picked-up with 7 days the order will be cancelled and the stock returned into inventory as available sales stock. EMPR reserves the right to charge a restocking fee as per Section 8 (part a) of these terms and conditions.
5. Part deliveries
EMPR Australia may make part deliveries of any order, and each part delivery will constitute a separate supply of the Products upon these Terms and Conditions.
6. Inspection and acceptance
The customer must inspect all Products upon delivery to the customer's premises and must, within 5 days of delivery, give notice to EMPR Australia of any issue by which the customer alleges that the Products are not in accordance with the customer's order. Failing such notice and to the extent permitted by law, the Products will be deemed to have been delivered to and accepted by the customer.
7. Title and risk
- Products supplied by EMPR Australia to the customer will be at the customer's risk immediately upon delivery of the Products to the address stated in the customers purchase order.
- Risk in the Products will remain with the customer at all times unless EMPR Australia retakes possession of the Products in accordance with clause 7(e)(ii).
- Title in the Products supplied by EMPR Australia to the customer will not pass to the customer until those Products and any other products supplied by EMPR Australia to the customer have been paid for in full.
- d. Until the Products have been paid for in full:
- the customer may sell the Products and keep records of the Products in the ordinary course of its business as agent for EMPR Australia and must account to EMPR Australia for the proceeds of sale (including any proceeds from insurance claims).
- If the customer has breached these Terms and Conditions (including any payment obligations) or the terms of any relevant Sales Contract, the customer authorises EMPR Australia , at any time, to enter onto any premises upon which EMPR Australia's Products are stored to enable EMPR Australia to:
- inspect the Products; and/or
- Reclaim the Products.
- The customer agrees that the provisions of this clause 7 apply despite any arrangement under which EMPR Australia grants credit to the customer.
8. Returns
- Where EMPR Australia approves the Return Authority (RA) request, a restocking fee of $30 or 30% (whichever is the greater) will apply at the discretion of EMPR Australia based on circumstances surrounding the return of the product. All returns accepted for credit must be in the original packaging and unopened or credit will be denied.
- The customer must notify EMPR Australia, via empr.com.au , of any Products it wishes to return within 7 days from the date of the invoice relating to those Products. Custom spare parts (special orders, non-stockable or non returnable items) are to be paid for upfront and are non-returnable and non refundable, this can be at the EMPR Australia managers discretion.
- Returns will be subject to EMPR Australia ‘s returns policy as advised to the customer and amended by EMPR Australia from time to time
- Each claim for the return of Products by the customer will be dealt with in accordance with the Returns Policy. Any substitute Products to be shipped to the customer in accordance with the Returns Policy will be sent by EMPR Australia to the customer by ordinary freight pre-paid. If the customer requests that the Products be sent by means other than ordinary freight, the extra cost of such accelerated or special freight must be paid by the customer. In the case whereby the customer has been supplied the incorrect part, EMPR Australia will arrange to have the part returned at no cost to the customer.
- EMPR Australia will not be liable for any damage or defects in the Products that have been caused by the improper storage, warehousing or transport, or by any neglect, abuse or improper use, installation, maintenance or unauthorised repair.
- The provisions of this clause 8 do not extend to any Products which have been added to, modified, varied or changed by any person or party other than EMPR Australia.
- When purchasing a “Repair Exchange” item the customer agrees to return the defective part within 30 days. Non Adherence to this will result in the customer being charged the outright buy price for the non returned item plus a 20% administration fee and an OEM administration charge of $70.
9. Loss or damage in transit
EMPR Australia is not responsible for any loss or damage to Products in transit by the customers carrier whether shipping from or returning to EMPR Australia.
10. Force majeure
If the performance or observance of EMPR Australia‘s obligations under these Terms and Conditions or any relevant Sales Contract is prevented, restricted or affected by a force majeure event including strike, lock out, industrial dispute, raw material shortage, breakdown or plant, transport or equipment or any other cause beyond the reasonable control of EMPR Australia , EMPR Australia will give notice of such cause to the customer and after 60 days from the receipt by customer of such notice, either party may terminate the relevant Sales Contract without penalty.
11. Customer's cancellation
- Unless otherwise agreed in writing, the customer will not have the right to cancel an order which has been accepted by EMPR Australia.
- customer requests for part, or parts cancellation must be exercised by notice, by submitting a “Parts Cancellation Form” via empr.com.au not later than 7 days before the estimated date of shipment by the manufacturer or EMPR Australia (as the case may be).
- Unless otherwise agreed between the customer and EMPR Australia, upon cancellation prior to shipment, any deposit paid by the customer will be forfeited to EMPR Australia.
- At Managements discretion, a cancellation fee of $30 or 30% (Whichever the greater) will be applicable to cancelled orders.
- Request for Cancellation will be declined for Parts When: Parts are especially ordered for customers, where the Supplier for EMPR Australia has a non returns policy for that particular part and where EMPR Australia have a zero consumption history for that particular part.
12. Default of customer
Without prejudice to any other rights that EMPR Australia has under these Terms and Conditions, if the customer fails to make any payment due to EMPR Australia under these Terms and Conditions, EMPR Australia may, in its sole discretion, and without further liability to the customer:
- refuse to make further supplies to the customer under the relevant Sales Contract; and/or
- terminate the Sales Contract without notice.
13. Warranty
- Warranty period on all spare parts supplied is 90 days, return to base (RTB)
- EMPR Australia will notify the customer of any applicable manufacturers' warranty in relation to the Products. To the extent permitted by law, EMPR Australia's entire responsibility with respect to warranties for the Products is to pass on to the customer the benefit of any such warranties.
- To the extent permitted by law, the manufacturers' warranties referred to in clause 13(a) are in substitution for all other terms, conditions and warranties, whether implied by statute or otherwise (including any implied warranties with respect to merchantability, fitness for purpose or quality, and whether as to design, assembly, materials or workmanship) and all such terms, conditions and warranties are expressly excluded from these Terms and Conditions.
- d. Certain legislation may imply warranties or conditions or impose obligations upon EMPR Australia which cannot be excluded, restricted or modified except to a limited extent. These Terms and Conditions must be read subject to those statutory provisions. If those statutory provisions apply, to the extent to which EMPR Australia is able to do so, its liability will be limited, at its option, to:
- in the case of Products: the replacement of the Products or resupply of equivalent Products; the repair of the Products; the payment of the cost of replacing the Products or acquiring equivalent Products; or the payment of the cost of having the Products repaired; and
- in the case of Services: the supply of the services again; or the payment of the cost of having the services supplied again.
- EMPR Australia denies liability of any damage that may be caused by a replacement Spare Part where the installation of the Spare Part was not carried out by an authorised Toshiba repairer.
14. Liability
- To the extent permitted by law, EMPR Australia will not be liable to the customer or any other person under any circumstances for any loss of use, profit, revenue, interest, goodwill or data, or for any injury or death to any person, or for any indirect, incidental or consequential damages sustained or incurred by the customer, whether such liability arises directly or indirectly as a result of:
- any negligent act or omission or wilful misconduct of EMPR Australia or its employees or agents;
- the supply, performance or use of any Products or Services; or
- any breach by EMPR Australia of its obligations under these Terms and Conditions or any relevant Sales Contract.
- EMPR Australia does not promise that repair facilities or parts will be available in respect of the Products.
- EMPR Australia endeavors to ensure accuracy of descriptions, images and pricing, however we do not warrant their accuracy.
15. Credit assessment
- If any Products and Services are supplied to the customer on credit, EMPR Australia may need to disclose to a credit reporting agency certain information referred to in clause 15(c) about the customer when assessing the customer's application for credit and managing the customer's trading account with EMPR Australia. The customer authorises EMPR Australia to disclose such information to a credit reporting agency for these purposes.
- Subject to EMPR Australia obligations under the Privacy Act 1988 (Cth) and any other applicable laws, EMPR Australia may give the information referred to in clause 15(c) to a credit reporting agency to obtain a consumer credit report about the customer or to allow the credit reporting agency to create or maintain a credit information file about the customer. The customer agrees that EMPR Australia may disclose a credit report about it to any credit provider, debt collecting agency or EMPR Australia's insurers for the purposes of assessing the customer's credit-worthiness or to collect any overdue payments (as the case may be).
- EMPR Australia may disclose the following information relating to the customer in accordance with clauses 15(a) and (b):
- the customer's name and address;
- credit limits on the customer's accounts;
- the amount of any payments which are overdue for at least 45 days;
- where an overdue payment has been previously reported, advice that the payment is no longer overdue;
- cheques or credit card payments which have been dishonoured;
- information that, in the opinion of EMPR Australia, the customer has committed a serious credit infringement; and
- information that EMPR Australia has ceased to supply the Products and Services to the customer.
- The customer agrees that EMPR Australia may obtain information about the customer from any business which provides information about the commercial credit-worthiness of persons for the purposes of assessing the customer's application to purchase the Products and Services on credit and collecting any overdue amounts.
- EMPR Australia may refuse to supply the Products and Services to the customer on credit on the basis of EMPR Australia credit assessment of the customer.
16. Privacy
- The customer agrees to EMPR Australia collecting, using and disclosing information about the customer of the kind referred to in clause 15(c) for various purposes, including to:
- assess credit worthiness as outlined in clause 15;
- supply the Products and Services to the customer and the management of the customer's trading account;
- communicate with the customer about the Products and Services which EMPR Australia or its partners or affiliates may provide to the customer;
- implement these Terms and Conditions and any Sales Contract; and
- comply with the requirements of relevant laws.
- EMPR Australia, at the written request of the customer, will:
- provide the customer with access to any personal information relating to the customer held by EMPR Australia; and
- correct or amend any personal information relating to the customer held by EMPR Australia which is inaccurate or out of date.
- EMPR Australia will handle the customer's personal information in accordance with the requirements of relevant laws.
17. Intellectual property
- The customer acknowledges that:
- all trademarks, trade names, patents, copyright, registered designs and other intellectual property rights (“Intellectual Property”) embodied in or in connection with the Products and any related information, documentation, parts or software are the sole property of EMPR Australia or its suppliers; and
- all Intellectual Property of EMPR Australia or its suppliers, may only be used by the customer with the consent of EMPR Australia or its suppliers, during the continuance of any relevant Sales Contract, and such consent extends only to use essential for the purposes stated in it. Upon the expiry or termination of the Sales Contract, the customer must discontinue such use. The customer acknowledges that any licensing of Intellectual Property rights in any software supplied to the customer will immediately cease upon expiry or termination.
- The customer must not, during or after the expiry or termination of the any relevant Sales Contract, without the prior written consent of EMPR Australia or its suppliers, register or use any trade marks, trade name, domain name, trading style or commercial designation or design used by EMPR Australia or its suppliers in connection with the Products or Services, nor will the customer repackage any Products, reproduce any artwork appearing on the package of any Products or copy, sell or hire or offer for sale or hire a copy of the Products.
- The customer will indemnify EMPR Australia against all liabilities, damages, costs and expenses which EMPR Australia may suffer or incur as a result of work done in accordance with the customer's specifications or as a result of the combination or use of the Products with other equipment, parts or software not supplied by EMPR Australia, and which results in the infringement of any Intellectual Property of any person.
18. Confidentiality
- The customer acknowledges that EMPR Australia has disclosed and may from time to time disclose to the customer certain confidential information and documentation of EMPR Australia relating to the Products, their marketing, use, maintenance, operation and software (including technical specifications) (“Confidential Information”).
- Subject to clause 18(e), the customer must:
- only use the Confidential Information solely for the purposes contemplated under any relevant Sales Contract; and
- not, during the continuation of such Sales Contract or thereafter, disclose (whether directly or indirectly) to any third party the Confidential Information, other than is required to carry out such purposes.
- If disclosure of EMPR Australia' s Confidential Information to third parties is necessary, the customer will obtain from such third parties binding agreements to maintain in confidence the Confidential Information disclosed at least to the same extent as the customer is bound to protect EMPR Australia's Confidential Information under this clause 18.
- Upon the expiry or termination of any relevant Sales Contract, the customer must cease to use and must return or destroy (as EMPR Australia may instruct) EMPR Australia's Confidential Information in its possession or control. The customer will not itself or through any subsidiary, agent or other party sell, market, distribute, manufacture or otherwise deal with the Products or have such Products manufactured for it based on the Confidential Information or any other technical information provided to it by EMPR Australia in accordance with these Terms and Conditions.
- The provisions of this clause 18 do not extend to any information which is:
- at the time of disclosure, rightfully known to or in the possession or control of the customer and which is not subject to an obligation or confidentiality;
- public knowledge (otherwise than as a result of a breach of this clause 18 or any other obligation of confidentiality);
- consented or approved to be disclosed by EMPR Australia; or
- required to be disclosed by a government authority or by the requirements of relevant laws.
19. General
- EMPR Australia may amend these Terms and Conditions at any time, by giving the customer notice by mail, e-mail or by posting a notice on EMPR Australia‘s public website. By continuing to place orders for Products and Services after these Terms and Conditions are amended, the customer will be deemed to have accepted the revised Terms and Conditions.
- Any provision of these Terms and Conditions which is invalid, void, voidable or unenforceable will be read down to the extent necessary, and the remaining provisions will continue unaffected.
- The customer may not assign or attempt to assign any of its rights and obligations under these Terms and Conditions. EMPR Australia may assign its rights and obligations under these Terms Conditions to any person.
- These Terms and Conditions are governed by the laws of the State of New South Wales. The customer submits to the non-exclusive jurisdiction of the courts of that country.
