Terms and Conditions

2.1 The parties acknowledge and agree that:
(a) they have read and understood the terms and conditions contained in this Contract; and
(b) the parties are taken to have exclusively accepted and are immediately bound, jointly and severally, by these terms and conditions if the Client places an order for or accepts delivery of the Goods.

2.2In the event of any inconsistency between the terms and conditions of this Contract and any other prior document or schedule that the parties have entered into, the terms of this Contract shall prevail.

2.3Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.

2.4 The Client acknowledges that the supply of Goods on credit shall not take effect until the Client has completed a credit application with Emjay and it has been approved with a credit limit established for the account.

2.5 In the event that the supply of Goods requested exceeds the Client’s credit limit and/or the account exceeds the payment terms, Emjay reserves the right to refuse delivery.

2.6 The Client acknowledges and accepts that the supply of Goods for accepted orders may be subject to availability and if, for any reason, the Goods are not or cease to be available, Emjay reserves the right to vary the Price with alternative Goods as per clause 6.2, subject to prior confirmation and agreement of both parties.

2.7 These terms and conditions may be meant to be read in conjunction with Emjay’s Hire Form, and where the context so permits, the terms ‘Goods’ or ‘Services’ shall include any supply of Equipment, as defined therein.

2.8 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions Act 2000 (NSW), the Electronic Transactions (Victoria) Act 2000 (whichever is applicable) or any other applicable provisions of that Act or any Regulations referred to in that Act.

3.1 The Client acknowledges and accepts that Emjay shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
(a)resulting from an inadvertent mistake made by Emjay in the formation and/or administration of this Contract; and/or (b)contained in/omitted from any literature (hard copy and/or electronic) supplied by Emjay in respect of the Services.

3.2In circumstances where the Client is required to place an order for Goods, in writing, or otherwise as permitted by these terms and conditions, the Client is responsible for supplying correct order information such as, without limitation, measurements and quantity, when placing an order for Goods (whether they are made to order Goods or not) (“Client Error”). The Client must pay for all Goods it orders from Emjay notwithstanding that such Goods suffer from a Client Error and notwithstanding that the Client has not taken or refuses to take Delivery of such Goods. Emjay is entitled to, at its absolute discretion to waive its right under this sub-clause in relation to Client Errors.

4.1 The Client shall give Emjay not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone or fax number/s, change of trustees, or business practice). The Client shall be liable for any loss incurred by Emjay as a result of the Client’s failure to comply with this clause.

5.1 The Client acknowledges and agrees that: 

The Client acknowledges and agrees that:

(a) Emjay does not guarantee the website’s performance;

(b) display on the website does not guarantee the availability of any particular Goods; therefore, all orders placed through the website shall be subject to confirmation of acceptance by Emjay;

(c) on-line ordering may be unavailable from time to time for regularly scheduled maintenance and/or upgrades;

(d) there are inherent hazards in electronic distribution, and as such Emjay cannot warrant against delays or errors in transmitting data between the Client and Emjay including orders, and you agree that to the maximum extent permitted by law, Emjay will not be liable for any losses which the Client suffers as a result of online-ordering not being available or for delays or errors in transmitting orders;

(e) when making a transaction through the website, the Client’s information will pass through a secure server using SSL (secure sockets layer) encryption technology or any other similar technology as disclosed by Emjay and/or displayed on the website. The encryption process ensures that the Client’s information cannot be read by or altered by outside influences; and

(e) if the Client is not the cardholder for any credit card being used to pay for the Goods, Emjay shall be entitled to reasonably assume that the Client has received permission from the cardholder for use of the credit card for the transaction. 

5.2Emjay reserves the right to terminate the Client’s order if it learns that you have provided false or misleading information, interfered with other users or the administration of Emjay’s business, or violated these terms and conditions.

6.1 At Emjay’s sole discretion, the Price shall be as indicated on any invoice provided by Emjay to the Client upon placement of an order for Goods.

6.2 Emjay reserves the right to change the Price:
if during the course of the Services, the Goods are not or cease to be available from Emjay’s third party suppliers, then Emjay reserves the right to provide alternative Goods; or
in the event of increases to Emjay in the cost of materials (including, but not limited to, price increases from Emjay’s third party suppliers, overseas transactions that may increase as a consequence of variations in foreign currency rates of exchange and/or international freight and insurance charges) which are beyond Emjay’s control.

(a) if a variation to the Goods which are to be supplied is requested; or

(b) if a variation to the Services originally scheduled (including any applicable plans or specifications) is requested; or

(c) if during the course of the Services, the Goods are not or cease to be available from Emjay’s third party suppliers, then Emjay reserves the right to provide alternative Goods; or

(d) in the event of increases to Emjay in the cost of materials (including, but not limited to, price increases from Emjay’s third party suppliers, overseas transactions that may increase as a consequence of variations in foreign currency rates of exchange and/or international freight and insurance charges) which are beyond Emjay’s control.

6.3 Variations will be charged for on the basis of Emjay’s quotation, and will be detailed in writing, and shown as variations on Emjay’s invoice. The Client shall be required to respond to any variation submitted by Emjay within ten (10) working days. Failure to do so will entitle Emjay to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion.

6.4 At Emjay’s sole discretion, a reasonable non-refundable deposit may be required upon placement of an order for Goods, in accordance with any quotation provided by Emjay or as notified to the Client prior to the placement of an order for Goods.

6.5Time for payment for the Goods being of the essence, the Price will be payable by the Client on the date/s determined by Emjay, which may be:

(a)by way of instalments/progress payments in accordance with Emjay’s payment schedule;

(b) thirty (30) days following the end of the month in which a statement is posted to the Client’s address or address for notices;

(c) the date specified on any invoice or other form as being the date for payment; or

(d) failing any notice to the contrary, the date which is thirty (30) days following the date of any invoice given to the Client by Emjay.

6.6 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card (a surcharge may apply per transaction), or by any other method as agreed to between the Client and Emjay.

6.7 Emjay may in its discretion allocate any payment received from the Client towards any invoice that Emjay determines and may do so at the time of receipt or at any time afterwards. On any default by the Client Emjay may re-allocate any payments previously received and allocated. In the absence of any payment allocation by Emjay, payment will be deemed to be allocated in such manner as preserves the maximum value of Emjay’s Purchase Money Security Interest (as defined in the PPSA) in the Goods.

6.8 The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by Emjay nor to withhold payment of any invoice because part of that invoice is in dispute. Once in receipt of an invoice for payment, if any part of the invoice is in dispute, then the Client must notify Emjay in writing within three (3) business days, the invoice shall remain due and payable for the full amount, until such time as Emjay investigates the disputed claim, no credit shall be passed for refund until the review is completed. Failure to make payment may result in Emjay placing the Client’s account into default and subject to default interest in accordance with clause 16.1.

6.9 Unless otherwise stated the Price does not include GST. In addition to the Price, the Client must pay to Emjay an amount equal to any GST Emjay must pay for any supply by Emjay under this or any other agreement for the sale of the Goods. The Client must pay GST, without deduction or set-off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition, the Client must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.

7.1 Delivery (“Delivery”) of the Goods is taken to occur at the time that:

(a) the Client or the Client’s nominated carrier takes possession of the Goods at Emjay’s address; or

(b) Emjay (or Emjay’s nominated carrier) delivers the Goods to the Client’s nominated address even if the Client is not present at the address. 

7.2 The cost of Delivery will be payable by the Client in accordance with the quotation provided by Emjay to the Client, or as otherwise notified to the Client prior to the placement of an order for Goods.
 

7.3 Emjay may deliver the Goods in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
 

7.4 The Client must take Delivery by receipt or collection of the Goods whenever they are tendered for Delivery.

7.4Any time specified by Emjay for Delivery of the Goods is an estimate only and Emjay will not be liable for any loss or damage incurred by the Client because of Delivery being late. However, both parties agree that they shall make every endeavour to enable the Goods to be delivered at the time and place as was arranged between both parties.

8.1 Risk of damage to or loss of the Goods passes to the Client on Delivery and the Client must insure the Goods on or before Delivery.

8.2 If any of the Goods are damaged or destroyed following Delivery but prior to ownership passing to the Client, Emjay is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Emjay is sufficient evidence of Emjay’s rights to receive the insurance proceeds without the need for any person dealing with Emjay to make further enquiries.

8.3If the Client requests Emjay to leave Goods outside Emjay’s premises for collection or to deliver the Goods to an unattended location, then such Goods shall be left at the Client’s sole risk.

8.4 The Client acknowledges and agrees that Goods supplied may exhibit variations in shade, colour, texture, surface, veining, thickness, sizing, finish, may contain natural fissures, occlusions, lines, indentations and may fade or change colour over time. Emjay will make every effort to match batches of product supplied in order to minimise such variations but shall not be liable in any way whatsoever where such variations occur.

9.1 Emjay shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Client. The Client acknowledges and agrees that in the event:

(a) that any of this information provided by the Client is inaccurate, Emjay accepts no responsibility for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information; and

(b) the Client gives information relating to product selection and quantities of Goods required, it is the Client’s responsibility to verify the accuracy of the Goods selected and quantities, before the Client or Emjay places an order based on these selections and quantities. Emjay accepts no responsibility for any loss, damages, or costs however resulting from the Client’s failure to comply with this clause, including but not limited to, where the Client orders insufficient quantities or select incorrect Goods (Emjay will take no responsibility for any variation of colour in further batches provided to the Client, the inability to provide the Goods at all, or incorrect product selection).

10.1The Client acknowledges that:

(a) it is their responsibility to ensure that the Goods which Emjay is to supply are of the correct type, size, standard, quality, colour and finish and are as specified in the specifications, drawings, design and plans upon which Emjay based the quotation on and therefore, the Client agrees to indemnify Emjay against any costs incurred by Emjay in rectifying such errors if required; and

(b) all descriptive specifications, illustrations, drawings, data, dimensions, ratings and weights stated in Emjay’s or the manufacturer’s fact sheets, price lists or advertising material, are approximate only and are given by way of identification only. The Client shall not be entitled to rely on such information, and any use of such does not constitute a sale by description, and does not form part of the Contract, unless expressly stated as such in writing by Emjay.

10.2 The Client shall be responsible for ensuring that the Goods ordered are suitable for their intended use.

11.1The Client and Emjay shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Services.

(a) the Client has paid Emjay all amounts owing to Emjay; and

(b) the Client has met all of its other obligations to Emjay

12.2Receipt by Emjay of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.

1.3It is further agreed that, until ownership of the Goods passes to the Client in accordance with clause 12.1:

(a) the Client is only a bailee of the Goods and must return the Goods to Emjay on request;

(b) the Client holds the benefit of the Client’s insurance of the Goods on trust for Emjay and must pay to Emjay the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed;

(c) the Client must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Goods then the Client must hold the proceeds of any such act on trust for Emjay and must pay or deliver the proceeds to Emjay on demand;

(d) the Client should not convert or process the Goods or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of Emjay and must sell, dispose of or return the resulting product to Emjay as it so directs;

(e) the Client irrevocably authorises Emjay to enter any premises where Emjay believes the Goods are kept and recover possession of the Goods;

(f) Emjay may recover possession of any Goods in transit whether or not Delivery has occurred;

(g) the Client shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of Emjay; and

(h) Emjay may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.

13.1In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.

13.2 Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Goods that have previously been supplied and that will be supplied in the future by Emjay to the Client, and the proceeds from such Goods.

13.3 The Client undertakes to:

(a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which Emjay may reasonably require to;

 
 (i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;

 
 (ii) register any other document required to be registered by the PPSA; or

   
(iii) correct a defect in a statement referred to in clause 13.3(a)(i) or 13.3(a)(ii);

(b) indemnify, and upon demand reimburse, Emjay for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Goods charged thereby;

(c) not register a financing change statement in respect of a security interest without the prior written consent of Emjay;

(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods or the proceeds of such Goods in favour of a third party without the prior written consent of Emjay;

(e) immediately advise Emjay of any material change in its business practices of selling the Goods which would result in a change in proceeds derived from such sales.

13.4 Emjay and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.

13.5 The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.

13.6 The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.

13.7 Unless otherwise agreed to in writing by Emjay, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.

13.8 The Client must unconditionally ratify any actions taken by Emjay under clauses 13.3 to 13.5.

13.9 Subject to any express provisions to the contrary (including those contained in this clause 13), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.

14.1In consideration of Emjay agreeing to supply the Goods and/or provide its Services and as acknowledged by Emjay in accordance with any Acknowledgment Document the Client grants Emjay a security interest by way of a floating charge (registerable by Emjay pursuant to the PPSA) over all of its present and after acquired rights, title and interest (whether joint or several) in all other assets that is now owned by the Client or owned by the Client in the future, including but not limited to those set out in any Acknowledgment Document, to the extent necessary to secure the repayment of monies owed under this Contract for provision of the Goods and/or Services under this Contract and/or permit Emjay to appoint a receiver to the Client in accordance with the Corporations Act 2001 (Cth).

14.2The Client indemnifies Emjay from and against all Emjay’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Emjay’s rights under this clause.

14.3 In the event that the Client defaults or breaches any term of this Contract and as a result, the security provided in clauses 12.1,13.2 and 14.1 as applicable, is deemed insufficient by Emjay to secure the repayment of monies owed by the Client to Emjay, the Client hereby grants Emjay a security interest as at the date of the default, by way of a charge, that enables the right and entitlement to lodge a caveat over any real property and or land owned by the Client now, or owned by the Client in the future, to secure the performance of the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money), in accordance with the Acknowledgement Document.

15.1 The Client must inspect the Goods on Delivery and must within five (5) days of Delivery notify Emjay in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Client must notify any other alleged defect in the Goods as soon as reasonably possible after any such defect becomes evident. Upon such notification the Client must allow Emjay to inspect the Goods.

15.2 Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (Non-Excluded Guarantees).

15.3 Emjay acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.

15.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, Emjay makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. Emjay’s liability in respect of these warranties is limited to the fullest extent permitted by law.

15.5 If the Client is a consumer within the meaning of the CCA, Emjay’s liability is limited to the extent permitted by section 64A of Schedule 2.

15.6 If Emjay is required to replace the Goods under this clause or the CCA, but is unable to do so, Emjay may refund any money the Client has paid for the Goods.

15.7If the Client is not a consumer within the meaning of the CCA, Emjay’s liability for any defect or damage in the Goods is:

(a) limited to the value of any express warranty or warranty card provided to the Client by Emjay at Emjay’s sole discretion;

(b) limited to any warranty to which Emjay is entitled, if Emjay did not manufacture the Goods;

(c) otherwise negated absolutely.

15.8 Subject to this clause 15, returns will only be accepted provided that:
d

(a) the Client has complied with the provisions of clause 15.1; and

(b) Emjay has agreed that the Goods are defective; and

(c)the Goods are returned within a reasonable time at the Client’s cost (if that cost is not significant); and

(d) the Goods are returned in as close a condition to that in which they were delivered as is possible.

15.9Notwithstanding clauses 15.1 to 15.8 but subject to the CCA, Emjay shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:

(a) the Client failing to properly maintain or store any Goods;

(b)the Client using the Goods for any purpose other than that for which they were designed;

(c) the Client continuing the use of any Goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user;

(d) the Client failing to follow any instructions or guidelines provided by Emjay;

(e) fair wear and tear, any accident, or act of God.

15.10 In the case of second-hand Goods, unless the Client is a consumer under the CCA, the Client acknowledges that it has had full opportunity to inspect the second-hand Goods prior to Delivery and accepts them with all faults and that to the extent permitted by law no warranty is given by Emjay as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. The Client acknowledges and agrees that Emjay has agreed to provide the Client with the second-hand Goods and calculated the Price of the second- hand Goods in reliance of this clause 15.10.

15.11 Emjay may in its absolute discretion accept non-defective Goods for return in which case Emjay may require the Client to pay handling fees of up to ten percent (10%) of the value of the returned Goods plus any freight costs.
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15.12 Notwithstanding anything contained in this clause if Emjay is required by a law to accept a return, then Emjay will only accept a return on the conditions imposed by that law.

15.13 Subject to clause 15.1, customised, or non-stocklist items or Goods made or ordered to the Client’s specifications are not acceptable for credit or return.

16.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at Emjay’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.

16.2 If the Client owes Emjay any money, the Client shall indemnify Emjay from and against all costs and disbursements:

(a) incurred; and/or

(b)which would be incurred and/or
;

(c) for which by the Client would be liable;:

in regard to legal costs on a solicitor and own client basis incurred in exercising Emjay’s rights under these terms and conditions, internal administration fees, Emjay’s Contract fees owing for breach of these terms and conditions’, including, but not limited to, contract default fees and/or recovery costs (if applicable), as well as bank dishonour fees.

16.3 Further to any other rights or remedies Emjay may have under this Contract, if a Client has made payment to Emjay, and the transaction is subsequently reversed, the Client shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by Emjay under this clause 15 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this Contract.

16.4 Without prejudice to Emjay’s other remedies at law Emjay shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Emjay shall, whether or not due for payment, become immediately payable if:

(a) any money payable to Emjay becomes overdue, or in Emjay’s opinion the Client will be unable to make a payment when it falls due;

(b) the Client has exceeded any applicable credit limit provided by Emjay;

(c) the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or

(d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.

17.1 Without prejudice to any other remedies the parties may have, if at any time either party is in breach of any obligation (including those relating to payment) under these terms and conditions (“the Breaching Party”) the other party may suspend or terminate the supply or purchase of Goods and/or Services to the other party, with immediate effect, by providing the Breaching Party with written notice. Neither party will be liable for any loss or damage the other party suffers because one of the parties has exercised its rights under this clause.

17.2 If Emjay, due to reasons beyond Emjay’s reasonable control, is unable to deliver any Goods and/or Services to the Client, Emjay may cancel any Contract to which these terms and conditions apply or cancel Delivery of Goods and/or Services at any time before the Goods and/or Services are delivered by giving written notice to the Client. On giving such notice Emjay shall repay to the Client any money paid by the Client for the Goods and/or Services. Emjay shall not be liable for any loss or damage whatsoever arising from such cancellation.

17.3 The Client may cancel Delivery of the Goods and/or Services by written notice served within forty-eight (48) hours of placement of the order. If the Client cancels Delivery in accordance with this clause 17.3, the Client will not be liable for the payment of any costs of Emjay, except where a deposit is payable in accordance with clause 6.4. Failure by the Client to otherwise accept Delivery of the Goods and/or Services shall place the Client in breach of this Contract.

17.4Cancellation of orders for Goods made to the Client’s specifications, or for non-stocklist items, will not be accepted once production has commenced, or an order has been placed.

18.1All emails, documents, images, or other recorded information held or used by Emjay is Personal Information, as defined and referred to in clause 18.3, and therefore considered Confidential Information. Emjay acknowledges its obligation in relation to the handling, use, disclosure and processing of Personal Information pursuant to the Privacy Act 1988 (“the Act”) including the Part IIIC of the Act being Privacy Amendment (Notifiable Data Breaches) Act 2017 (NDB) and any statutory requirements, where relevant in a European Economic Area (“EEA”), under the EU Data Privacy Laws (including the General Data Protection Regulation “GDPR”) (collectively, “EU Data Privacy Laws”). Emjay acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Client’s Personal Information, held by Emjay that may result in serious harm to the Client, Emjay will notify the Client in accordance with the Act and/or the GDPR. Any release of such Personal Information must be in accordance with the Act and the GDPR (where relevant) and must be approved by the Client by written consent, unless subject to an operation of law.

18.2 Notwithstanding clause 18.1, privacy limitations will extend to Emjay in respect of Cookies where the Client utilises Emjay’s website to make enquiries. Emjay agrees to display reference to such Cookies and/or similar tracking technologies, such as pixels and web beacons (if applicable), such technology allows the collection of Personal Information such as the Client’s:

(a) IP address, browser, email client type and other similar details;

(b) tracking website usage and traffic; and

(c) reports are available to Emjay when Emjay sends an email to the Client, so Emjay may collect and review that information (“collectively Personal Information”)

If the Client consents to Emjay’s use of Cookies on Emjay’s website and later wishes to withdraw that consent, the Client may manage and control Emjay’s privacy controls via the Client’s web browser, including removing Cookies by deleting them from the browser history when exiting the site. .

18.3 The Client agrees that Emjay may exchange information about the Client with those credit providers and with related body corporates for the following purposes:

(a) to assess an application by the Client; and/or

(b) to notify other credit providers of a default by the Client; and/or

(c) to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or

18.4 The Client consents to Emjay being given a consumer credit report to collect personal credit information relating to any overdue payment on commercial credit.

18.5 The Client agrees that personal credit information provided may be used and retained by Emjay for the following purposes (and for other agreed purposes or required by):

(a) the provision of Goods; and/or

(b) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Goods; and/or

(c) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or

(d) enabling the collection of amounts outstanding in relation to the Goods.

18.6 Emjay may give information about the Client to a CRB for the following purposes:

(a) to obtain a consumer credit report;

(b) allow the CRB to create or maintain a credit information file about the Client including credit history.

18.7 Emjay may give information about the Client to a CRB for the following purposes:
(a) to obtain a consumer credit report;
Emjay Specialty Tapes And Packaging – Terms & Conditions of Trade
#22087 © Copyright – EC Credit Control 1999 – 2019
(b) allow the CRB to create or maintain a credit information file about the Client including credit history.

18.8 The information given to the CRB may include:

(a) Personal Information as outlined in 18.3 above;

(b) name of the credit provider and that Emjay is a current credit provider to the Client;

(c) whether the credit provider is a licensee;

(d) type of consumer credit;

(e) details concerning the Client’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);

(f) advice of consumer credit defaults (provided Emjay is a member of an approved OAIC External Disputes Resolution Scheme), overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Client no longer has any overdue accounts and Emjay has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);

(g) information that, in the opinion of Emjay, the Client has committed a serious credit infringement;

(h) advice that the amount of the Client’s overdue payment is equal to or more than one hundred and fifty dollars ($150).

18.9 The Client shall have the right to request (by e-mail) from Emjay:

(a)a copy of the Personal Information about the Client retained by Emjay and the right to request that Emjay correct any incorrect Personal Information; and

(b) that Emjay does not disclose any Personal Information about the Client for the purpose of direct marketing.

18.10Emjay will destroy Personal Information upon the Client’s request (by e-mail) or if it is no longer required unless it is required to fulfil the obligations of this Contract or is required to be maintained and/or stored in accordance with the law.

18.11 The Client can make a privacy complaint by contacting Emjay via e-mail. Emjay will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to reach a decision on the complaint within thirty (30) days of receipt of the complaint. If the Client is not satisfied with the resolution provided, the Client can make a complaint to the Information Commissioner at www.oaic.gov.au.

19.1 Any written notice given under this Contract shall be deemed to have been given and received:

(a) by handing the notice to the other party, in person;

(b) by leaving it at the address of the other party as stated in this Contract;

(c) by sending it by registered post to the address of the other party as stated in this Contract;

(d) if sent by facsimile transmission to the fax number of the other party as stated in this Contract (if any), on receipt of confirmation of the transmission;

(e) if sent by email to the other party’s last known email address.

19.2 Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.

20.1 If the Client at any time upon or subsequent to entering in to the Contract is acting in the capacity of trustee of any trust or as an agent for a trust (“Trust”) then whether or not Emjay may have notice of the Trust, the Client covenants with Emjay as follows:

(a) the Contract extends to all rights of indemnity which the Client now or subsequently may have against the Trust, the trustees and the trust fund;

(b) the Client has full and complete power and authority under the Trust or from the Trustees of the Trust as the case may be to enter into the Contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Client against the Trust, the trustees and the trust fund. The Client will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity;

(c)the Client will not during the term of the Contract without consent in writing of Emjay (Emjay will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events:

   (i) the removal, replacement or retirement of the Client as trustee of the Trust;

 
 (ii) any alteration to or variation of the terms of the Trust;

   
(iii) any advancement or distribution of capital of the Trust; or

   
(iv) any resettlement of the trust fund or trust property.

21.1 The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable, that provision shall be severed from this Contract, and the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.

21.2 These terms and conditions and any contract to which they apply shall be governed by the laws of either New South Wales or Victoria in which state the Goods and/or Services were provided by Emjay to the Client however, in the event of a dispute that deems necessary for the matter to be referred to a Magistrates or higher Court then jurisdiction will be subject to the Parramatta Courts in New South Wales in which Emjay has its principal place of business. These terms prevail over all terms and conditions of the Client (even if they form part of the Client’s purchase order).

21.3 Emjay may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Client’s consent provided the assignment does not cause detriment to the Client.

21.4The Client cannot licence or assign without the written approval of Emjay.

21.5 Emjay may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this Contract by so doing. Furthermore, the Client agrees and understands that they have no authority to give any instruction to any of Emjay’s sub-contractors without the authority of Emjay.

21.6 The Client agrees that Emjay may amend their general terms and conditions for subsequent future Contracts with the Client by disclosing such to the Client in writing. These changes shall be deemed to take effect from the date on which the Client accepts such changes, or otherwise at such time as the Client makes a further request for Emjay to provide Goods to the Client.

21.7 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm, national or global pandemics and/or the implementation of regulation, directions, rules or measures being enforced by Governments or embargo, including but not limited to, any Government imposed border lockdowns (including, worldwide destination ports), etc., (“Force Majeure”) or other event beyond the reasonable control of either party. This clause does not apply to a failure by the Client to make a payment to Emjay, once the parties agree that the Force Majeure event has ceased.

21.8 Both parties warrant that they have the power to enter this Contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this Contract creates binding and valid legal obligations on them.

21.9This Contract and any subsequent hire agreement between Emjay and the Client, shall constitute as the entire agreement between Emjay and the Client, and the Client hereby acknowledges that no reliance is placed on any representation made by Emjay that is not embodied in this Contract.

21.10 The rights and obligations of the parties will not merge on completion of any transaction under this Contract, and they will survive the execution and Delivery of any assignment or other document entered, for the purpose of, implementing any transaction under this Contract.

21.11 If part or all of any term of this Contract is or becomes invalid, illegal or unenforceable, it shall be severed from this Contract and shall not affect the validity and enforceability of the remaining terms of this Contract.