In these Conditions the following words shall have the following meanings:-
“The Buyer” is the person, firm or companies who or which is shown as such on the face of this invoice. “Emotion” means Emotion Pty Ltd and related companies. “The Conditions” means the terms and conditions endorsed herein read together with those contained on the face hereof. In the event of any inconsistency the latter shall prevail. “The face hereof” includes continuation pages. “The Act” means the Trade Practices Act. 1974.
Unless other terms and conditions are separately accepted by Emotion by means of written amendment to these conditions signed by Emotion’s authorised officers and referring specifically to the conditions to be amended this Contract shall be on the terms and conditions set out herein to the exclusion of any other terms and conditions whether or not the same are endorsed upon or delivered with or referred to in any acceptance, counteroffer or call for tender whether verbal or in writing or in any other verbal or written communication of the Buyer of Emotion. Any references on the face hereof to any document of the Buyer shall be deemed solely for the purpose of describing or specifying the goods or any part thereof and shall be deemed not to imply that any terms or conditions endorsed upon or delivered with before or referred to in each document shall have affect to the exclusion or amendment of or addition to these conditions.
The buyer hereby acknowledges that no person acting on behalf of Emotion has authority to alter or waiver these conditions save as provided in these conditions.
If any of these terms and conditions are found to be void, then such finding shall not effect the validity of other terms and conditions contained herein.
When the goods are the subject of a manufacturer’s specification Emotion will be deemed to have performed its obligations to the Buyer if it delivers to the Buyer goods according to the specifications as known to Emotion at the time of the order or according to such other altered or provided specifications for those goods that the manufacturer may have published from time to time whether or not those specifications are known to Emotion and no variation in these terms and conditions occasioned by such operation or amendment of the specification shall entitled the Buyer to avoid the contract or to any adjustment of the purchase price.
4. PRICE AND PAYMENT
(a) The Buyer shall pay to Emotion in addition to the stated price:
1. The amount of any increase in the price of the goods unless otherwise stated by Emotion after the date of the order:
2. Any increase in the cost to Emotion arising from delivery of the goods to a place at a time or in a manner other than that specified in the order resulting from any request made by the Buyer:
(b) The purchase price shall be paid by the Buyer after inspection of the goods to Emotion within thirty days after receipt of invoice unless otherwise stated by Emotion and the Buyer shall not be entitled to withhold payment or make any deduction from the price in respect of any set-off or counter-claim. The time for payment is to be of the essence.
(c) If the Buyer fails to pay the purchase price as aforesaid Emotion shall be entitled (without prejudice to any other rights hereunder or at law):
- To charge interest thereon from the date when due until payment at the rate of 7.5% per month.
- To charge storage fee commensurate with commercial product storage rates, per month.
- To, after 90 days from receipt of delivery or order, and with reasonable effort to contact the buyer during this time, dispose of the goods as it sees fit.
4. To retain possession of the goods and to give the Buyer written notice that Emotion intends to resell the goods after the expiry of seven (7) days from the date of the notice and if the Buyer fails within that period to pay the purchase price with interest and storage fees thereon then Emotion shall be released from all obligations under this Contract and shall be entitled either to:
1. Rescind the Contract and sue for damages:
2. Rescind the Contract and recall the goods and sue for damages:
(d) Replacement parts sold as a changeover requires the replaced parts to be returned. The replaced part must be returned to the manufacturer within thirty (30) days at the buyers cost or said parts will be invoiced as a separate sale.
(a) The Buyer shall be responsible for the cost of delivery of the goods unless otherwise stipulated by Emotion
(b) Emotion will ensure with each delivery that goods are safely and securely packed for transportation to the Buyer.
(c) Emotion shall be under no liability whatsoever to the Buyer for loss, injury or damage of any kind whatsoever arising out of delay in or failure to make delivery of the goods or any part thereof including (without prejudice to the generality of the foregoing) consequential loss of any kind, whether the same is due to any act, omission, negligence or willful default of Emotion or its servants or agencies or to any other cause whatsoever, including (without prejudice to the generality to the foregoing) any breach by Emotion, its servants or agents of any terms and conditions hereof.
(d) If Emotion is prevented (directly or indirectly) from making delivery of the goods or any part thereof by reason by acts of God, war, strike, lock outs, trade disputes, fire, breakdown, interruption of transport, Government action, failure or refusal of the manufacturer of goods to supply them to Emotion or any cause whatsoever (whether or not of the like nature to those specified above) outside its control Emotion shall be under no liability whatsoever to the Buyer and shall be entitled as its option (to be notified to the buyer in writing) either to cancel the order or to extend the time of its performance.
(e) Emotion shall be entitled to make delivery by installments and to determine the route and manner of delivery of the goods.
6. PASSING OF PROPERTY RISK AND INSURANCE
(a) The parties agree that property in and title to the goods shall pass to the Buyer only when the goods have been paid for in full and until such time they shall remain in the property of Emotion.
(b) The Buyer agrees that prior to payment in full it shall not remove any mark identifying the goods as the property of Emotion.
(c) In the following events Emotion may (but without limiting any other rights or remedies to Emotion at law, in equity or by statute) seize, repossess or recall (or seize, repossess and recall) the goods at its discretion and for such purpose Emotion may enter any premises in or upon which Emotion reasonably believes from time to time the goods to be located.
(i) If an order is made or an effective resolution is passed for the winding up of the Buyer or a meeting is summoned or convened for the purpose of considering such a resolution (otherwise than for the purpose of amalgamation on reconstruction); or
(ii) If any person appoints a receiver or a receiver and manager over whole or any part of the undertaking or assets of the Buyer; or
(iii) If the Buyer enters any arrangement or composition with any of its creditors; or
(iv) If the Buyer is placed under official management or a meeting summoned or other steps taken for the purpose of placing the Buyer under official management and appointing an official manager thereof; or
(v) If the Buyer is unable to pay its rights as they fail owe or otherwise commits any act of insolvency; or
(vi) If the Buyer fails to pay for the goods in accordance with the terms of the Contract; or
(vii) If the Buyer fails to comply with any if its obligations under this Contract.
(d) The Buyer hereby acknowledges the right of Emotion to enter at any time on to any premises where goods which have not been paid for in full are held, and the Buyer further acknowledges the right of Emotion to remove such goods upon the happening of any one or combination of the events stipulated in sub-paragraph (c).
(e) Irrespective of whether property in the goods has passed to the Buyer the goods shall be at the Buyer’s risk from the earliest to occur of the following events;
(i) the passing of property to the Buyer in accordance with this clause; or
(ii) the physical delivery of the goods or any of them to the Buyer; or
(iii) the goods leaving the store of Emotion.
Emotion warrants their products against defects in materials and workmanship under normal use for the period of ONE (1) YEAR, from the date of retail purchase by the original end user purchaser (Warranty Period) or as otherwise stipulated in individual agreement.
If the product has been installed by Emotion or an Authorised Service Provider (“ASP”) approved in writing by Emotion, the date of warranty extends from the date of installation.
If a valid claim is received within the Warranty Period, at its option and to the extent permitted by law, Emotion will provide unlimited exchange replacement parts during the Warranty Period, subject to the following conditions:
- This warranty excludes malfunction caused by normal wear and tear, improper installation, misuse, abuse, negligence, accident or alteration by any person.
- The replaced part must be returned to the manufacturer within thirty (30) days or said parts will be charged at retail cost.
- Transport costs associated with the repair or replacement of any parts shall be borne by the claimant
- Any repair work is to be carried out by Emotion or ASP
When a product or part is exchanged, any replacement item becomes your property and the replaced item becomes Emotion property. Parts provided by Emotion in fulfilment of its warranty obligation must be used in products for which warranty service is claimed.
EXCLUSIONS AND LIMITATIONS
This Limited Warranty applies only to system products manufactured by or for Emotion that can be identified by the Emotion’s registered trademarks, trade name, or logo affixed to them.
The Limited Warranty does not apply to any non-Emotion system products.
Emotion does not warrant that the operation of the product will be uninterrupted or error-free.
This warranty does not apply to:
- damage arising from failure to follow instructions relating to the product’s use,
- damage caused by use with non-Emotion parts and products,
- damage caused by lack of scheduled maintenance,
- damage caused by accident, abuse, misuse, flood, fire, force majeure, earthquake or other external causes,
- damage caused by operating the product outside the permitted or intended uses described by Emotion and within the included operation manual,
- damage caused by service (including upgrades) performed by anyone who is not a representative of Emotion or an ASP,
- a product or part that has been modified to alter functionality or capability without the written permission of Emotion,
- consumable parts, such as batteries and fuses unless damage has occurred due to a defect in materials or workmanship,
- any product that has had a Emotion serial number removed or defaced.
EMOTIONS RESPONSIBILITY FOR PRODUCT DEFECTS IS LIMITED TO REPAIR OR REPLACEMENT SERVICE AS DETERMINED BY EMOTION IN ITS SOLE DISCRETION. ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE LIMITED IN TIME TO THE TERM OF THIS LIMITED WARRANTY. NO WARRANTIES, WHETHER EXPRESS OR IMPLIED, WILL APPLY AFTER THE EXPIRATION OF THE LIMITED WARRANTY PERIOD.
No Emotion reseller, agent, or employee is authorized to make any modification, extension, or addition to this warranty. If any term is held to be illegal or unenforceable, the legality or enforceability of the remaining terms shall not be affected or impaired.
EXCEPT AS PROVIDED IN THIS WARRANTY AND TO THE EXTENT PERMITTED BY LAW, EMOTION IS NOT RESPONSIBLE FOR DIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES RESULTING FROM ANY BREACH OF WARRANTY OR CONDITION, OR UNDER ANY OTHER LEGAL THEORY, INCLUDING BUT
NOT LIMITED TO LOSS OF USE; LOSS OF REVENUE; LOSS OF ACTUAL OR ANTICIPATED PROFITS (INCLUDING LOSS OF PROFITS ON CONTRACTS); LOSS OF THE USE OF MONEY; LOSS OF ANTICIPATED SAVINGS; LOSS OF BUSINESS; LOSS OF OPPORTUNITY; LOSS OF GOODWILL; LOSS OF REPUTATION;
THE FOREGOING LIMITATION SHALL NOT APPLY TO DEATH OR PERSONAL INJURY CLAIMS, OR ANY STATUTORY LIABILITY FOR INTENTIONAL AND GROSS NEGLIGENT ACTS AND/OR OMISSIONS.
8. CONSIGNMENT STOCK
Emotion may grant the supply of consignment stock at their discretion, for resale and display purposes. Emotion has a separate agreement that needs to be authorised before stock can be issued.
9. INTELLECTUAL PROPERTY
Emotion owns or is the licensee of all copyright, trademark, patent or design rights or confidential information (“Intellectual property”) in or related to any of its goods or services.
The buyer must not claim any right title or interest in the intellectual property nor use or disclose any of the intellectual property other than necessary for the use of the goods or services. The buyer must not copy the goods or arrange any third party to copy them.
No returns will be accepted unless in original condition and packaging. Emotion retains the right to charge a restocking fee and all freight costs are to be borne by the buyer.
After 14 days, goods will be credited at 75% of original invoice price (exclusive of freight).
After 30 days, goods will be credited at 50% of original invoice price (exclusive of freight).
11. PROPER LAW
The proper law of this Contract is that of the State of South Australia and the parties hereto hereby submit to the jurisdiction of the Courts of that State of Australia.