1.1. All goods and services supplied to the Buyer by Echocraft Pty Ltd under a services contract are supplied on the following Terms and Conditions.
1.2. These Terms and Conditions cannot be varied or modified except by an instrument in writing signed by Echocraft Pty Ltd.
1.3. These Terms and Conditions take precedence over any terms and conditions contained in any document of the Buyer or elsewhere, and any such terms and conditions have no application to or effect on a supply contract.
1.4. Without prejudice to any rights accruing to either party under this agreement, either party may terminate this agreement by providing the other party with 30 days' written notice.
2.1. Seller shall mean Echocraft Pty Ltd and its successors and assigns.
2.2. Buyer shall mean the buyer or any person or agent acting on behalf of and with the authority of the buyer.
2.3. Guarantor means that person(s) or entity who agrees herein to be liable for the debts of the Buyer (if a Limited Liability Buyer) on a principal debtor basis.
2.4. Services shall mean all services supplied by the Seller to the Buyer, including any advice or recommendations.
2.5. Price shall mean the cost of the services as agreed between the Seller and the Buyer, subject to clause 5 of this contract.
2.6. Purchase Price means the price of the goods as advised by Echocraft Pty Ltd.
2.7. Buyer means any person, firm or corporation, including successors, administrators, and assigns who has requested the supply of goods by Echocraft Pty Ltd.
2.8. Quotation means a quotation provided by Echocraft Pty Ltd to the Buyer.
3.1. Any instructions received by the Seller from the Buyer for the supply of services and/or the Buyer's acceptance of services supplied by the Seller shall constitute acceptance of the terms and conditions contained herein.
3.2. Upon acceptance of these terms and conditions by the Buyer, they are irrevocable and can only be rescinded in accordance with these terms or with written consent of the manager of the Seller.
3.3. None of the Seller's agents or representatives are authorized to make any representations or agreements not expressed in writing by the manager of the Seller.
3.4. Any quotation made by Echocraft Pty Ltd is not an offer to sell or to provide services.
3.5. Echocraft Pty Ltd shall not be bound by any order given in pursuance of a quotation until accepted in writing or by the commencement of supply of goods or services.
3.6. Unless otherwise agreed in writing, all orders are subject to acceptance by Echocraft Pty Ltd within 30 days of receipt.
4.1. All express or implied terms, conditions, warranties, assurances, and representations are excluded from the supply contract except:
4.2. Liability not excluded by 4.1 is limited by Echocraft Pty Ltd to:
4.3. Buyer acknowledges no other warranty or representation is given beyond these terms, and has relied on their own judgement.
The services shall be as described on the invoices, quotations, work authorizations, sales orders, or any other work commencement forms provided by the Seller to the Buyer.
6.1. At the Seller's sole discretion:
6.2. 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 Services.
6.3. At the Seller's sole discretion, for certain approved Buyers payment will be due seven (7) days following the date of the invoice.
6.4. Payment will be made by cash on delivery, or by cheque, or by bank cheque, or by any other method as agreed to between the Buyer and the Seller.
6.5. 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 Seller.
7.1. Delivery of the Services shall be made to the Buyer's nominated address. The Buyer shall make all arrangements necessary to take delivery of the Services whenever they are tendered for delivery.
7.2. The failure of the Seller to deliver shall not entitle either party to treat this contract as repudiated.
7.3. The Seller shall not be liable for any loss or damage whatever due to failure by the Seller to deliver the Services (or any of them) promptly or at all.
The Buyer 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 them by any servant or agent of the Seller and acknowledges that they buy the Services relying solely upon their own skill and judgment.
If by reason of any fact, circumstance, matter or thing beyond the reasonable control of Echocraft Pty Ltd, then Echocraft Pty Ltd is unable to perform in whole or in part any obligation under this agreement, Echocraft Pty Ltd shall be relieved of that obligation to the extent and for the period that it is so unable to perform and shall not be liable to the Buyer in respect of such liability.
10.1. Interest on overdue invoices shall accrue from the date when payment becomes due daily until the date of payment at a rate of 2.5% per calendar month and shall accrue at such a rate after as well as before any judgment.
10.2. If the Buyer defaults in payment of any invoice when due, the Buyer shall indemnify the Seller from and against all the Seller'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.
10.3. Without prejudice to any other remedies the Seller may have, if at any time the Buyer is in breach of any obligation (including those relating to payment), the Seller may suspend or terminate the supply of Services to the Buyer and any of its other obligations under the terms and conditions. The Seller will not be liable to the Buyer for any loss or damage the Buyer suffers because the Seller exercised its rights under this clause.
10.4. If any account remains unpaid at the end of the second month after supply of the goods or 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.
10.5. In the event that:
Then the Seller may suspend all further deliveries and recover outstanding debts immediately.
The Seller (Echocraft Pty Ltd) may cancel any unfulfilled orders without prejudice to other rights. All amounts then outstanding become immediately due and payable. The Buyer hereby charges in favor of the Seller all interests in land and personal property (present and future) as security for obligations to the Seller. The Buyer must execute, on demand, a mortgage or consent to a caveat over such property. If the Buyer fails to do so, the Seller’s credit manager or solicitor is irrevocably appointed as the Buyer’s attorney to execute such instruments on the Buyer’s behalf.
12.1 The Buyer agrees to do all things necessary to ensure the Seller's security interest under the PPSA is perfected with the highest possible priority and remains perfected (including by control if applicable). This obligation is in addition to and does not limit the Seller's rights under section 53(2) of the PPSA.
12.2 Legal and beneficial title to the goods remains with the Seller until full payment is made.
12.3 The Buyer waives the right to receive notices or documentation under sections 95, 121(4), 123, 129(2), 130, 132(3)(d), 132(4), 135, and 157 of the PPSA. The Buyer also waives the right to a copy of any verification statement under section 157.
12.4 The Buyer acknowledges the Seller’s rights in addition to those under Chapter 4 of the PPSA and agrees to the Seller's rights under sections 126, 128, 129(1), and 134(1).
12.5 The Buyer’s right to possession of the goods ends if the Buyer becomes insolvent, ceases to carry on business, fails to comply with a demand for payment, or breaches any provision of the agreement.
12.6 The Buyer must not register a financing change statement or apply for an amendment demand in respect of the Seller's registration without the Seller’s prior written consent.
Title to any goods and services supplied remains with the Seller until full payment has been received by the Seller.
14.1 The Buyer and/or Guarantor agree to charge all their present and future rights, title, and interest in any land or real estate to secure obligations owed to the Seller.
14.2 The Buyer and/or Guarantor agree that the Seller may lodge a caveat or register a mortgage against such property to protect its interest until all money owed is paid in full.
14.3 The Buyer and/or Guarantor shall indemnify the Seller from and against all legal costs incurred by the Seller in connection with the enforcement of this clause.
14.4 The Buyer and/or Guarantor appoint the Seller and/or its nominated agent (e.g., EC Credit Control Pty Ltd) as their attorney to execute all necessary documents to enforce the Seller’s rights under this clause, including executing mortgages and charges.
The Seller may cancel these terms and conditions or any delivery of Services at any time prior to delivery by giving written notice to the Buyer. The Seller shall not be liable for any loss or damage arising from such cancellation. Each stipulation of this contract stands independently and remains effective on its own.
16.1 The Buyer and/or the Guarantor(s) consent to the Seller obtaining a credit report containing personal credit information from a credit reporting agency, relating to credit provided by the Seller.
16.2 The Buyer and/or Guarantor(s) agree that the Seller may exchange information with credit providers named in the credit application or in a consumer credit report for the following purposes:
16.3 The Buyer consents to the Seller being given a consumer credit report for the purpose of collecting overdue payments on commercial credit, in accordance with Section 18K(1)(h) of the Privacy Act 1988.
16.4 The Buyer agrees that any Personal Data provided may be used and retained by the Seller for the following purposes and any other required by law or agreed between the parties:
16.5 The Seller may provide information to a credit reporting agency to:
17.1 "GST" refers to Goods and Services Tax as defined in the GST Act.
17.2 Unless otherwise stated, all monetary amounts including the Purchase Price are calculated exclusive of GST.
These Terms and Conditions are governed by the laws of New South Wales. Both parties irrevocably submit to the jurisdiction of the Local and District Courts at Parramatta and the Supreme Court of New South Wales at Sydney for any claims arising from these Terms and Conditions.
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