1. Definitions

• 1.1 - “Consultant” shall mean Transqual Pty Ltd and its successors and assigns.
• 1.2  -“Client” shall mean the Client or any person acting on behalf of and with the authority of the Client.
• 1.3 - “Guarantor” means that person (or persons), or entity who agrees herein to be liable for the debts of the Client if a Limited Liability Client on a principal debtor basis.
• 1.4  -“Services” shall mean all services supplied by the Consultant to the Client and includes any advice or recommendations (and where the context so permits shall include any supply of Services as defined supra).
• 1.5 - “Price” shall mean the cost of the Services as agreed between the Consultant and the Client subject to clause 4 of this contract.
  

2. Acceptance

•     2.1 - Any instructions received by the Consultant from the Client for the supply of Services and/or the Client’s acceptance of Services supplied by the Consultant shall constitute acceptance of the terms and conditions contained herein.
•     2.2  - Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all payments of the Price.
•     2.3 - Upon acceptance of these terms and conditions by the Client the terms and conditions are irrevocable and can only be rescinded in  accordance with these terms and conditions or with the written consent of the manager of the Consultant.
•     2.4 - None of the Consultant’s agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the manager of the Consultant in writing nor is the Consultant bound by any such unauthorised statements.
•     2.5 - These terms and conditions are to be read in conjunction with the “Service Agreement”. If there are any inconsistencies between the two  documents then the terms and conditions contained in this document shall prevail.

3. Services

•     3.1 - The Services shall be as described on the invoices, quotation, or any other work commencement forms as provided by the Consultant to the Client.

4. Price And Payment

•     4.1 - At the Consultant’s sole discretion;

        (a) - The Price shall be as indicated on invoices provided by the Consultant to the Client in respect of Goods supplied; or
        (b) - The Price of the Services shall, subject to clause 4.2, be the Consultants quoted Price, which shall be binding upon the Consultant provided that the Client shall accept in writing the Consultants quotation within thirty (30) days.

•     4.2 - Any agreed variation from the plan of scheduled works or specifications will be charged for on the basis of the Consultant’s quotation and will be shown as extras on the invoice. Payment for all extras must be made in full at their time of completion.
•     4.3 - At the Consultants sole discretion a deposit may be required. The deposit amount or percentage of the Price will be stipulated at the time of the order of the Goods/Services and shall become immediately due and payable.
•     4.4 - Time for payment for the Services shall be of the essence and will be stated on the invoice, quotation or any other order forms. If no time is stated then payment shall be on delivery of the Service.
•     4.5 - At the Consultants sole discretion, for certain approved Clients payment will be due thirty (30) days following the date of the invoice.
•     4.6 - At the Consultant’s sole discretion, payment for approved Clients shall be made by installments in accordance with the Consultants delivery/payment schedule.
•     4.7 - Payment will be made by cash on delivery, or by cheque, or by bank cheque, or by credit card (plus any charges that maybe applicable), or by any other method as agreed to between the Client and the Consultant.
•     4.8 - The Price shall be increased by the amount of any GST and other taxes and duties which may be applicable, except to the extent that such taxes are expressly included in any quotation given by the Consultant.

5. Risk

•     5.1 - If the Consultant retains property in the Services nonetheless, all risk for the Services passes to the Client on delivery.

6. Clients Disclaimer

•     6.1 - The Client hereby disclaims any right to rescind, or cancel the contract or to sue for damages or to claim restitution arising out of any misrepresentation made to him by any servant or agent of the Consultant and the Client acknowledges that he buys the Services relying solely upon his own skill and judgment and that the Consultant shall not be bound by nor responsible for any term, condition, representation or warranty other than the warranty given by the Manufacturer which warranty shall be personal to the Client and shall not be transferable to any subsequent Client.

7. The Commonwealth Trade Practices Act 1974 and Fair Trading Acts

• 7.1 - Nothing in this agreement is intended to have the affect of contracting out of any applicable provisions of the Commonwealth Trade Practices Act 1974 or the Fair Trading Acts in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.

8. Default & Consequences Of Default

• 8.1 - Interest on overdue invoices shall accrue from the date when payment becomes due daily until the date of payment at a rate of 2.0% per well as before any judgment.
• 8.2 - If the Client defaults in payment of any invoice when due, the Client shall indemnify the Consultant from and against all the Consultant’s costs and disbursements including on a solicitor and own client basis and in addition all of EC Credit Control Pty Ltd’s costs of collection.
• 8.3 - Without prejudice to any other remedies the Consultant may have, if at any time the Client is in breach of any obligation (including those relating to payment), the Consultant may suspend or terminate the supply of Services to the Client and any of its other obligations under the terms and conditions. The Consultant will not be liable to the Client for any loss or damage the Client suffers because the Consultant exercised its rights under this clause.
• 8.4 - If any account remains unpaid at the end of the second month after supply of the services the following shall apply: An immediate amount of the greater of $20.00 or 10.00% of the amount overdue shall be levied for administration fees which sum shall become immediately due and payable.
• 8.5 - In the event that:

• (a) - any money payable to the Consultant becomes overdue, or in the Consultant’s opinion the Client will be unable to meet its payments as they fall due; or
• (b) - 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
• (c) - a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client; then without prejudice to the Consultant’s other remedies at law
• (i)  -the Consultant shall be entitled to cancel all or any part of any order of the Client which remains unperformed in addition to and without prejudice to any other remedies; and
• (ii) - all amounts owing to the Consultant shall, whether or not due for payment, immediately become payable.

9. Confidentiality

• 9.1 - The Consultant will keep all confidential material, being information about the Client’s operations and intentions, disclosed to it by the Client confidential, will use same only for the purposes of this Agreement and will not permit same to be disclosed other than in confidence to its employees to the extent strictly necessary for the purposes of this Agreement.

10. Cancellation

• 10.1 - The Consultant may cancel these terms and conditions or cancel delivery of Services at any time before the Services are delivered by giving at least 30 days written notice. The Consultant shall not be liable for any loss or damage whatever arising from such cancellation.
• 10.2 - The Client may cancel these terms and conditions or cancel delivery of Services at any time before the Services are delivered by giving at least 30 days written notice. The Client shall not be liable for any loss or damage whatever arising from such cancellation.

11. Privacy Act 1988

• 11.1 - The Client and/or the Guarantor/s agree for the Consultant to obtain from a credit-reporting agency a credit report containing personal credit information about the Client and Guarantor/s in relation to credit provided by the Consultant.
• 11.2 - The Client and/or the Guarantor/s agree that the Consultant may exchange information about Client and Guarantor/s with those credit providers named in the Application for Credit account or named in a consumer credit report issued by a reporting agency for the following purposes:

• (a) - To assess an application by Client;
• (b) - To notify other credit providers of a default by the Client;
• (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
• (d) - To assess the credit worthiness of Client and/or Guarantor/s.

• 11.3 - The Client consents to the Consultant being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
• 11.4 - The Client agrees that Personal Data provided may be used and retained by the Consultant for the following purposes and for other purposes as shall be agreed between the Client and Consultant or required by law from time to time:

• (a) - provision of Services;
• (b) - marketing of Services by the Consultant, its agents or distributors in relation to the Services;
• (c) - analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to provision of Services;
• (d) - processing of any payment instructions, direct debit facilities and/or credit facilities requested by Client; and
• (e) - enabling the daily operation of Client’s account and/or the collection of amounts outstanding in the Client’s account in relation to the Services.

• 11.5 - The Consultant may give, information about the Client to a credit reporting agency for the following purposes:

• (a) - to obtain a consumer credit report about the Client; and or
• (b) - allow the credit reporting agency to create or maintain a credit information file containing information about the Client.

12. Intellectual Property

• 12.1 - Where the Consultant has designed or drawn Goods for the Client, then the copyright in those designs and drawings shall remain vested in the Consultant, and shall only be used by the Client for the purpose of enjoying the benefit of the Services provided.
• 12.2 - Where the Client has supplied drawings or specifications, then the copyright in those drawings or specifications shall remain vested in the Client, and shall only be used by the Consultant for the purpose of providing the Services.
• 12.3 - Where any designs or specifications have been supplied by the Client for manufacture by or to the order of the Consultant then the Client warrants that, to the best of its knowledge, the use of those designs or specifications for the manufacture, processing, assembly or supply of the Goods shall not infringe the rights of any third party.
• 12.4 - The Client warrants that all designs or instructions to the Consultant will not, to the best of its knowledge, cause the Consultant to infringe any patent, registered design or trademark in the execution of the Clients order.
• 12.5 - Where the Consultant has provided documentation, the Consultant retains ownership of the documentation, but grants a licence to the Client for use of the documentation. The Client will use any third-party documentation supplied by the Consultant, and identified as such, strictly in terms of the licence under which it is supplied.
• 12.6 - The Consultant warrants that all documentation provided to the Client will not, to the best of its knowledge, cause the Client to infringe any patent, registered design or trademark of any third party.

13. Title

• 13.1 - It is the intention of the Consultant and agreed by the Client that property in the Goods shall not pass until

• (a) - The Client has paid all amounts owing for the particular Goods, and
• (b) - The Client has met all other obligations due by the Client to the Consultant in respect of all contracts between the Consultant and the Client, and that the Goods, or proceeds of the sale of the Goods, shall be kept separate until the Consultant shall have received payment and all other obligations of the Client are met.

• 13.2 - It is further agreed that

• (a) - Until such time as ownership of the Goods shall pass from the Consultant to the Client the Consultant may give notice in writing to the Client to return the Goods or any of them to the Consultant. Upon such notice the rights of the Client to obtain ownership or any other interest in the Goods shall cease.
• (b) - If the Client fails to return the Goods to the Consultant then the Consultant or the Consultant’s agent may enter upon and into land and premises owned, occupied or used by the Client, or any premises as the invitee of the Client, where the Goods are situated and take possession of the Goods, without being responsible for any damage thereby caused.

14. General

• 14.1 - If any provision of these terms and conditions shall be invalid, void or illegal or unenforceable the validity existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
• 14.3 - The Consultant shall be under no liability whatever to the Client for any indirect loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by the Consultant of these terms and conditions.
• 14.4 - In the event of any breach of this contract by the Consultant the remedies of the Client shall be limited to damages. Under no circumstances shall the liability of the Consultant exceed the Price of the Client.
• 14.5 - The Client shall not set off against the Price amounts due from the Consultant.
• 14.6 - The Consultant may license or sub-contract all or any part of its rights and obligations without the Client’s consent, provided that the Consultant remains liable for the provision of the Services.
• 14.7 - The Consultant reserves the right to review these terms and conditions at any time and from time to time. If, following any such review, there is to be any change in such terms and conditions, that change will take effect from the date on which the Consultant notifies the Client of such change.
• 14.8 - Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.