Terms & Conditions

CONTRACT OF PURCHASE

By submitting to Emerled Pty Ltd (ACN 134 393 016) (Emerald Planet) an order via email, mail, in person or via phone (Order), the Customer (as defined in section 14) makes an offer to purchase the goods on these Terms and Conditions, such offer being irrevocable for a period of 21 days after receipt of your offer, unless otherwise agreed in writing by Emerald Planet. Emerald Planet will be deemed to have accepted your offer by taking any of the following actions before the later of 21 days after receipt of your offer, or the date you revoke your offer:

• Sending you written notice of acceptance of your offer by email or otherwise;
• Dispatching goods contained in your offer; or
• Sending you an invoice for the goods in your offer.

The Customer acknowledges and accepts that Emerald Planet, at its discretion, reserves the right not to supply goods, for any reason (including where the goods are not, or cease to be, available, or there are account disputes or conditions laced on Emerald Planet by its suppliers). Emerald Planet will not be liable to the Customer for any loss or damage the Customer suffers due to Emerald Planet not supplying goods pursuant to this clause.

Where the Customer consists of more than one legal entity then each of those entities are jointly and severally liable for all obligations under these Terms and Conditions, including the obligation to make any payments to Emerald Planet.

Submission of an Order by the Customer is deemed as an acceptance of these Terms and Conditions.

These Terms and Conditions may vary from time to time. The Terms and Conditions applying to the Customer’s Order will be those in force on the date the Customer’s Order is received by Emerald Planet.

From time to time, Emerald Planet may run promotions which are subject to both these Terms & Conditions and any additional Promotion Term & Conditions. Promotion Terms & Conditions may include conditions in respect of selected products, order periods, purchase methods, minimum spend requirements, bundle discounts or partner promotions. Promotion Terms and Conditions will be available on the website. By submitting an Order and redeeming the promotional offer, the Customer agrees to and accepts the Promotional Terms & Conditions of the applicable promotion(s).

ACCOUNTS AND PAYMENTS

All goods are sold on a cash before delivery basis meaning that full payment must be received by Emerald Planet prior to dispatch of the goods unless otherwise agreed in writing. Emerald Planet may at times require a deposit to be paid on acceptance of an Order from the Customer. Emerald Planet will issue an invoice on accepting an Order.

A credit limit may be set for a Customer account at the discretion of Emerald Planet. In the event that an Order will cause an account’s credit limit to be exceeded, Emerald Planet reserves the right to require the Customer to pay in full up-front any amounts over the credit limit, including by requiring any excess amounts to be paid prior to dispatch of the relevant goods. Otherwise, the Customer must pay for goods within 14 days after the month in which the Customer purchased the goods, or any other period agreed by the parties.

Any account with a balance not paid by the relevant due date may be frozen until all monies overdue are paid. Any invoice balance that remains unpaid 60 days after its due date will incur interest charges on a daily basis of 2% per month (24% pa) calculated from the invoice due date until the date of payment.

If an invoice is not paid by the due date, Emerald Planet may, at its discretion, withhold further deliveries to the Customer or revoke the credit limit provided to the Customer, without prejudice to any of its existing rights.

Failure to pay an invoice by the due date shall be deemed a material breach of these Terms and Conditions.

If the Customer owes Emerald Planet any money, the Customer must indemnify Emerald Planet from and against all costs and disbursements incurred by Emerald Planet in recovering the debt (including internal administration fees, legal costs on a solicitor and own client basis collection agency costs and bank dishonour fees).

PRICES & GST

Unless otherwise stated, all prices quoted by Emerald Planet are exclusive of GST. Emerald Planet reserves the right to change the prices of goods at any time.

The Customer will bear all liability for GST and shall not require Emerald Planet to pay any amount on account of GST. In addition, Emerald Planet will be entitled to recover from the Customer any GST paid or payable by it in respect to the provision of the goods.

RETENTION OF TITLE

Ownership of, and title to, the goods (whether or not attached, fixed or incorporated into any other property) remains with Emerald Planet until payment in full for the goods has been made and received by Emerald Planet. Until the date full payment is received:

• The Customer must maintain the goods in satisfactory condition and holds the goods as bailee for Emerald Planet. If the Customer sells, disposes or parts with possession of the goods then the Customer must hold the proceeds (such proceeds to include any rights to receive or generate any carbon credit units or similar rights) of any such act on trust for Emerald Planet and must pay or deliver the proceeds to Emerald Planet on demand.
• The Customer should not convert or process the goods or intermix them with other goods, but if the Customer does so then the Customer holds the resulting product on trust for the benefit of Emerald Planet and must sell, dispose of or return the resulting product to Emerald Planet as it so directs.
• The Customer must not allow the goods to become fixtures, including through installation by the Customer or a third party.
• The Customer must 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 Emerald Planet.
• Emerald Planet may commence proceedings to recover the price of the goods sold notwithstanding that ownership of, or title to, the goods has not passed to the Customer.

The Customer is deemed to be in material default and breach of these Terms and Conditions immediately upon the happening of any of the following events:

• If payment of an invoice is not made promptly by the due date for payment.
• If the Customer ceases to carry on business or stops or suspends payment or states its intention of so doing or is unable to pay its debts as they fall due or if any cheque drawn or other payment made by the Customer payable to Emerald Planet is dishonoured.
• If the Customer is a company and is wound up or is placed in administration, or a receiver or manager is appointed.
• If the Customer is an individual and becomes bankrupt.

In the event of a default by the Customer, then without prejudice to any other rights which Emerald Planet may have at law or under these Terms and Conditions, Emerald Planet or its agents have the right to:

• recover the goods at its option and the Customer is obliged to deliver up the goods if so directed by Emerald Planet or its agents, including in accordance with the enforcement procedures outlined in Chapter 4 of the Personal Property Securities Act 2009 (Cth) or any applicable legislation from time to time; and
• suspend or terminate the supply of goods to the Customer, Emerald Planet will not be liable to the Customer for any loss or damage the Customer suffers because Emerald Planet has exercised its rights under this clause.

PERSONAL PROPERTY SECURITIES ACT 2009 (PPSA)

In this clause, financing statement, financing change statement, security agreement, and security interest have the meaning given to them by the PPSA.
Upon submitting an Order under these Terms and Conditions, the Customer acknowledges and agrees that these Terms and Conditions constitute a security agreement for the purposes of the PPSA and creates a purchase money security interest in all goods that have previously been supplied and that will be supplied in the future by Emerald Planet to the Customer, as well as in the proceeds relating to the sale by the Customer of such goods (including the rights to receive or generate any carbon credit units or similar rights as a result of the supply by the Customer of the goods).

The Customer undertakes to:

• 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 the Company may reasonably require to: a) register a financing statement or financing change statement in relation to a security interest arising in connection with these Terms and Conditions on the Personal Property Securities Register; b) register any other document required to be registered by the PPSA; or c) correct any defect identified in the above financing statement;
• do anything Emerald Planet reasonably requires to ensure that the security interest is enforceable, perfected and otherwise effective; and
• indemnify, and upon demand reimburse, Emerald Planet 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;
• not register a financing change statement in respect of a security interest without the prior written consent of Emerald Planet;
• not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods in favour of a third party without the prior written consent of Emerald Planet; and
• immediately advise Emerald Planet of any material change in its business practices of selling the goods to third parties which may result in a change in the nature of the proceeds derived from such sales.

To the extent permitted by law:

• ­ Emerald Planet does not need to comply with sections 95 (to the extent that it requires Emerald Planet to give notice to the Customer), 96, 118, 121(4), 125, 130, 132(3)(d) and 132(4) of the PPSA.
• Sections 142 and 143 of the PPSA are excluded.
• The Customer waives its right to receive any notice that is required by the PPSA and permitted to be excluded (including notice of a verification statement).

Subject to any express provisions to the contrary, nothing in these Terms and Conditions is intended to have the effect of contracting out of any of the provisions in the PPSA.

RELATIONSHIP OF THE PARTIES

The Customer will not be an agent or employee of Emerald Planet in any sale of the goods by the Customer.

RISK

Risk of damage to, or loss of, the goods (whether or not attached, fixed or incorporated into any other property) passes to the Customer on Delivery (as defined in section 8 below) and the Customer must insure the goods on or before Delivery.

If any of the goods are damaged or destroyed following Delivery but prior to title passing to the Customer, Emerald Planet is entitled to receive all insurance proceeds payable for the goods. The production of these Terms and Conditions by Emerald Planet is sufficient evidence of Emerald Planet’s rights to receive the insurance proceeds without the need for any person dealing with Emerald Planet to make further enquiries.

If the Customer requests Emerald Planet to leave goods outside Emerald Planet’s premises for collection or to deliver the goods to an unattended location, then such goods will be left at the Customer’s sole risk.

DELIVERY

Delivery of the Goods is taken to occur at the time that: a) the Customer or the Customer’s nominated carrier takes possession of the goods at Emerald Planet‘s address; or one of its nominated third-party warehouses; b) Emerald Planet (or Emerald Planet‘s nominated carrier) delivers the goods to the Customer’s nominated address even if the Customer is not present at the address (as applicable) (Delivery).

All Orders and Deliveries are subject to our Delivery Policy. Our Delivery Policy is located at https://emeraldplanet.com.au/faqs/#deliveries

There are a small number of remote Australian locations that Emerald Planet is unable to deliver to. If a Customer places an Order for Delivery to an unserviceable location, Emerald Planet will contact the Customer and refund any amounts paid.

Emerald Planet is unable to deliver to PO Box or Locker addresses.

Emerald Planet does not provide international delivery options.

The Customer must take Delivery. In the event that the Customer is unable, or refuses, to take Delivery of the goods as arranged then Emerald Planet will pass on any additional courier, storage or other charges that may apply based on new Delivery arrangements.

When the Customer gives Emerald Planet an ‘authority to leave’, it is allowing Emerald Planet to leave the goods at the selected Delivery address without a signature requirement. The Customer can confirm an ‘authority to leave’ by notifying the in writing (email) to our customer support team. Emerald Planet, and contractors associated with the Delivery, do not accept responsibility for any loss or damage which results from an ‘authority to leave’ delivery method. The Customer releases Emerald Planet from and against any and all claims, demands, liabilities, losses, costs and expenses, including financial and other consequential losses, made, suffered or incurred by the Customer or any other person or entity as a result of an ‘authority to leave’ request.

Emerald Planet may deliver the goods subject to an Order in separate consignments. Each consignment must be paid for in accordance with these Terms and Conditions or as otherwise agreed.

Any Delivery time or date given by Emerald Planet to the Customer is an estimate only. The Customer must still accept Delivery of the goods even if late and Emerald Planet will not be liable for any loss or damage incurred by the Customer as a result of the Delivery being after the estimated Delivery time or date.

The failure of Emerald Planet to Deliver will not entitle either party to treat these Terms and Conditions as repudiated.

Backorders will be shipped as soon as they are available.

REVIEW OF CUSTOMER ACCOUNTS

Emerald Planet will review a Customer’s account status if the Customer: (a) attempts to cancel an Order or requests a delay in Delivery of goods Ordered by more than 1 month; or (b) fails to make payment by the due date. This may lead to the Customer’s account being closed or amended terms being applied to future orders. Emerald Planet reserves the right to require full payment for a cancelled Order or requested delay in Delivery of goods of more than 1 month.

CANCELLATION OF ORDERS

The Customer will not be entitled to cancel the whole or part of the Order or to claim compensation by reason of Emerald Planet’s failure to comply with the Delivery requirements or minor variations to the goods as a result of changes to the manufacturing process or specifications of the goods, so long as the overall functionality of the goods is no less than those ordered by the Customer.

DEFECTIVE GOODS, SHORTFALLS AND LIABILITY

Our goods may come with guarantees under Schedule 2 of the Competition and Consumer Act 2010 (Cth) (Australian Consumer Law) that cannot be excluded, restricted or modified.

Every effort is made to ensure accuracy of the information provided by Emerald Planet (whether on the Emerald Planet website or otherwise). To the full extent permitted by law, and without limiting the operation of the Australian Consumer Law, Emerald Planet takes no responsibility for any errors and/or omissions advertised and images and/or descriptions of goods that differ from the actual goods; images are for illustration purposes only.

Subject to the requirements of any law including under the Australian Consumer Law, all claims for defective or short delivered goods must be made in writing to [email protected] within 10 days of Delivery of the relevant goods. A failure to make a claim within the above time constitutes acceptance in full of the Delivery.

If the goods are considered to be of a kind not ordinarily provided for personal, domestic or household use, to the extent permitted by law:

• Emerald Planet’s liability for a breach of a condition or warranty implied by the Australian Consumer Law is limited to either the (a) replacement of the goods supplied or the supply of equivalent goods; (b) repair of the goods supplied; (c) payment of the cost of replacing the goods or of acquiring equivalent goods; or (d) payment of the cost of having the goods repaired.
• Emerald Planet will not be liable for consequential, incidental, special or exemplary damages, including loss of profits or revenues, loss of corruption to data, loss of use of the goods or any other goods or associated equipment or damage to any associated equipment, cost of capital, cost of substitute products, facility of services, down time cost or claims made by a Customer, arising out of or from a result of a breach of contract, warranty, use of our goods or services or otherwise.
• Emerald Planet’s liability for a claim, loss or damage suffered or incurred by a Customer, arising out of or in connection with the goods or related services provided to the Customer will not exceed the price of the specific good giving rise to the claim, loss or damage.

For the avoidance of doubt, this clause does not operate where contrary to the Australian Consumer Law.

Notwithstanding anything else in these Terms and Conditions, but subject to any applicable law including under the Australian Consumer Law, Emerald Planet will not be liable for any defect or damage to the extent it is caused or partly caused, or contributed to, by or arise as a result of:

• the Customer or a third party failing to properly maintain or store any goods;
• the Customer or a third party using the goods for any purpose other than that for which the goods were designed or was communicated to Emerald Planet and confirmed by Emerald Planet to be an appropriate purpose for which the goods may be used;
• the Customer or a third party continuing the use of any goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
• the Customer or a third party failing to follow any instructions or guidelines provided by Emerald Planet; or
• fair wear and tear, any accident, act of God or other

RETURNS FOR CHANGE OF MIND

Emerald Planet will accept goods returned due to a change of mind and provide an account credit or credit note, when items are returned with proof of purchase within 10 days from the date the goods were delivered to the Customer. Goods returned after that timeframe will not be eligible for an account credit or credit note.

The Customer is fully responsible for the cost of returning the goods.

All goods returned due to a change of mind must be unopened and in their original shipped condition, including all product packaging.

Goods which appear to be worn, used or damaged after delivery, or altered in any way, will not be eligible for an account credit or credit note.

INTELLECTUAL PROPERTY

All confidential information, materials and intellectual property rights supplied by Emerald Planet belong to Emerald Planet. The Customer shall not use or have any rights to them.

GENERAL

The failure or delay by Emerald Planet to enforce any provision of these Terms and Conditions must not be treated as a waiver of that provision, nor must it affect Emerald Planet’s right to subsequently enforce that provision. If any provision of these Terms and Conditions is found to be invalid, void, illegal or unenforceable, it is severed and the validity, existence, legality and enforceability of the remaining provisions remains unaffected.

The Customer must not be entitled to set off against, or deduct from any amounts owed to Emerald Planet, any amounts owed or claimed to be owed to the Customer by Emerald Planet nor to withhold payment of any invoice because part of that invoice is in dispute.

Emerald Planet may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.

Neither party must be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm, inability to obtain any necessary materials, equipment, facilities or services, failure of performance provided by others, internet interruption or virus, accidents or breakdown of plant, machinery, units and parts, software, hardware or communication network, or other event beyond the reasonable control of either party.

The Customer warrants that it has the power to submit an Order and accept these Terms and Conditions and has obtained all necessary authorisations to allow it to do so, it is not insolvent, and that these Terms and Conditions create binding and valid legal obligations on it.

These Terms and Conditions and any Emerald Planet document referred to in it (which may only be varied in writing by Emerald Planet) shall apply to the exclusion of all other terms relating to the goods, including on the Customer’s Order form. All goods are provided subject to these Terms and Conditions. Throughout this document Customer or you means the purchaser of the goods specified in the Customer’s Order, Emerald Planet’s acceptance or any other written document between the parties.

The contract for the provision of the goods is made in New South Wales, Australia and the parties exclusively submit all disputes arising between them to the Courts of New South Wales, Australia.