Terms & Conditions

East Coast Trailers & Horse Floats Pty Ltd – Terms & Conditions of Trade

1. Definitions

1.1

“Contract” means the terms and conditions contained herein, together with any Quotation, order, invoice or other document or amendments expressed to be supplemental to this Contract.

1.2

“ECT” means East Coast Trailers & Horse Floats, its successors and assigns or any person acting on behalf of and with the authority of East Coast Trailers and Horse Floats Pty Ltd.

1.3

“Client” means the person/s, entities or any person acting on behalf of and with the authority of the Client requesting ECT to provide the Services as specified in any proposal, quotation, order, invoice or other documentation, and:

(a) if there is more than one Client, is a reference to each Client jointly and severally; and

(b) if the Client is a partnership, it shall bind each partner jointly and severally; and

(d) includes the Client’s executors, administrators, successors and permitted assigns.

1.4

“Goods” means all Goods or Services supplied by ECT to the Client at the Client’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).

1.5

“Confidential Information” means information of a confidential nature whether oral, written or in electronic form including, but not limited to, this Contract, either party’s intellectual property, operational information, know-how, trade secrets, financial and commercial affairs, contracts, client information (including but not limited to “Personal Information” such as: name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) and pricing details.

1.6

“Cookies” means small files which are stored on a user’s computer. They are designed to hold a modest amount of data (including Personal Information) specific to a particular client and website, and can be accessed either by the web server or the client’s computer.

If the Client does not wish to allow Cookies to operate in the background when ordering from the website, then the Client shall have the right to enable / disable the Cookies first by selecting the option to enable / disable provided on the website, prior to ordering Goods via the website.

1.7

“Price” means the Price payable (plus any GST where applicable) for the Goods as agreed between ECT and the Client in accordance with clause 5 below.

1.8

“GST” means Goods and Services Tax as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).

2. Acceptance

2.1

The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for or accepts Delivery of the Goods.

2.2

In 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.

2.3

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

2.4

Any advice, recommendation, information, assistance or service provided by UPVC in relation to Services provided is given in good faith, is based on ECT’s own knowledge and experience and shall be accepted without liability on the part of ECT and it shall be the responsibility of the Client to confirm the accuracy and reliability of the same in light of the use to which the Client makes or intends to make of the Services.

2.5

The Client acknowledges and accepts that:

(a) where a Client wishes to operate a credit account with UPVC, a credit application must be completed and approved with a credit limit established first, prior to the initial delivery and/or supply of Goods;

(b) in the event that the supply of Goods or Services requested exceeds the Client’s credit limit and/or the account exceeds the payment terms, ECT reserves the right to refuse delivery and/or request an alternative payment method; and

(c) the supply of Goods for accepted orders may be subject to availability and if, for any reason, Goods are not or cease to be available, ECT reserves the right to vary the Price with alternative Goods as per clause 5.2, subject to confirmation and agreement of both parties. ECT also reserves the right to halt all Services until such time as ECT and the Client agree to such changes. ECT shall not be liable to the Client for any loss or damage the Client suffers due to ECT exercising its rights under this clause.

2.6

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 or any other applicable provisions of that Act or any Regulations referred to in that Act.

3. Errors and Omissions

3.1

The Client acknowledges and accepts that ECT 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 ECT 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 ECT in respect of the Services.

3.2

In the event such an error and/or omission occurs in accordance with clause 3.1, and is not attributable to the negligence and/or wilful misconduct of ECT, the Client shall not be entitled to treat this Contract as repudiated nor render it invalid.

4. Change in Control

4.1

The Client shall give ECT 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 ECT as a result of the Client’s failure to comply with this clause.

5. Price and Payment

5.1

At ECT’s sole discretion, the Price shall be either:

(a) as indicated on any invoice provided by ECT to the Client; or

(b) ECT’s quoted price (subject to clause 5.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.

5.2

ECT reserves the right to change the Price:

(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 ECT’s third party suppliers, then ECT reserves the right to provide alternative Goods; or

(d) in the event of increases to ECT in the cost of labour or materials which are beyond ECT’s control.

5.3

Variations will be charged for on the basis of ECT’s quotation, and will be detailed in writing, and shown as variations on ECT’s invoice. The Client shall be required to respond to any variation submitted by ECT within ten (10) working days. Failure to do so will entitle ECT 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.

5.4

At ECT’s sole discretion, a non-refundable deposit of up to fifty percent (50%) may be required.

5.5

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

(a) before Delivery of the Goods;

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

(d) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by ECT.

5.6

Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, or by any other method as agreed to between the Client and ECT.

5.7

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

5.8

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 ECT nor to withhold payment of any invoice because part of that invoice is in dispute.

5.9

Unless otherwise stated the Price does not include GST. In addition to the Price, the Client must pay to ECT an amount equal to any GST ECT must pay for any supply by ECT 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.

6. Provision of the Services

6.1

Subject to clause 6.2 it is ECT’s responsibility to ensure that the Services start as soon as it is reasonably possible.

6.2

The Services’ commencement date will be put back and the completion date extended by whatever time is reasonable in the event that ECT claims an extension of time (by giving the Client written notice) where completion is delayed by an event beyond ECT’s control.

6.3

Delivery (“Delivery”) of the Goods is taken to occur at the time that ECT (or ECT’s nominated carrier) delivers the Goods to the Client’s nominated address even if the Client is not present at the address.

6.4

At ECT’s sole discretion, the cost of Delivery is either included in the Price or is in addition to the Price.

6.5

ECT 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.

6.6

Any time specified by ECT for Delivery of the Goods is an estimate only and ECT will not be liable for any loss or damage incurred by the Client as a result 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. In the event that ECT is unable to supply the Goods as agreed solely due to any action or inaction of the Client, then ECT shall be entitled to charge a reasonable fee for redelivery and/or storage.

7. Risk

7.1

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.

7.2

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

7.3

If the Client requests ECT to leave Goods outside UPVC’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.

7.4

Where ECT is required to install the Goods the Client warrants that the structure of the premises or equipment in or upon which these Goods are to be installed or erected is sound and will sustain the installation and work incidental thereto and ECT shall not be liable for any claims, demands, losses, damages, costs and expenses howsoever caused or arising should the premises.

7.5

ECT shall not be held responsible for any damage to the Goods or delays to delivery caused by outside agents. Where the Client requests ECT to repair such damage then ECT reserves the right to charge the Client for any costs incurred in rectifying such damage.

7.6

ECT is only responsible for parts that are replaced by ECT and that in the event that other parts/Goods subsequently fail, the Client agrees to indemnify ECT against any loss or damage to the Goods, or caused by the Goods, or any part thereof howsoever arising.

7.7

Where an anodised surface finish has been selected, slight colour variation may occur between the main unit frame and any installation trims used due to the difference in aluminium alloys available and manufacturing standards and tolerances shall not be deemed to be a defect in the Goods. Whilst ECT will make every effort to match sales samples to the finished Goods, ECT accepts no liability whatsoever where such samples differ to the finished Goods supplied.

7.8

Holes, cut outs and cutting of the Goods may weaken the strength of the Goods and although it is unlikely, cracking may occur. ECT accepts no responsibility against cracks occurring after such Goods.

7.15

The Client acknowledges that Goods supplied may:

(a) exhibit variations in shade, colour, texture, surface, finish, markings, occlusions, lines, indentations and may fade or change colour over time; and

(b) expand, contract or distort as a result of exposure to heat, cold, weather; and

(d) be damaged or disfigured by impact or scratching.

8. Compliance with Laws

8.1

The Client and ECT 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.

8.2

The Client shall obtain (at the expense of the Client) all licenses and approvals that may be required for the Services.

9. Title

9.1

ECT and the Client agree that ownership of the Goods shall not pass until:

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

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

9.2

Receipt by ECT 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.

9.3

It is further agreed that, until ownership of the Goods passes to the Client in accordance with clause 9.1:

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

(b) the Client holds the benefit of the Client’s insurance of the Goods on trust for ECT and must pay to ECT 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 ECT and must pay or deliver the proceeds to ECT 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 ECT and must sell, dispose of or return the resulting product to ECT as it so directs;

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

(f) ECT 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 ECT;

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

10. Personal Properties Act 2000 (PPSA)

10.1

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

10.2

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 and/or collateral (account) – being a monetary obligation of the Client to ECT for Services – that have previously been supplied and that will be supplied in the future by ECT to the Client.

10.3

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 ECT may reasonably require to;