Terms & Conditions of Trade

1. Definitions
1.1 “Company” means Ethnic Interpreters Pty Ltd its successors and assigns or any person acting on behalf of and with the authority of Ethnic Interpreters Pty Ltd.
1.2 “Client” means the person/s requesting the Company to provide the Services as specified in any invoice, document or order, and if there more than one person requesting the Services is a reference to each person jointly and severally.
1.3 “Incidental Items” means any goods, documents, designs, drawings or materials supplied, consumed, created or deposited incidentally by the Company in the course of it conducting, or supplying to the Client, any Services.
1.4 “Services” means all Services supplied by the Company to the Client at the Client’s request from time to time.
1.5 “Fee” means the Fee payable for the Services as agreed between the Company and the Client in accordance with clause 5 of this contract.
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 Services provided by the Company.
2.2 These terms and conditions may only be amended with the Company’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and the Company.
2.3 The Client acknowledges and accepts in the event that the Company’s employee and/or agent is unable to attend due to unforeseen circumstances, every means possible will be undertaken to find a suitable replacement. The Company will waive the booking fee where the Company’s representative is unable to attend in accordance with clause 15.1.
3. Change in Control
3.1 The Client shall give the Company 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, or business practice). The Client shall be liable for any loss incurred by the Company as a result of the Client’s failure to comply with this clause.
4. Client Acknowledgement
4.1 The Client acknowledges that:
(a) all assignment venue (including but not limited to, any necessary maps and travel information) details will be provided by the Client, as requested, and submitted to the Company prior to commencement of the Services; and
(b) advance bookings are preferable; and
(c) urgent booking priority is given though it is the clients responsibility to agree to any additional arrangements in both provision and payment terms at the confirmation of the booking; and
(d) travel time must be discussed and agreed upon depending on distance travelled prior delivery of the Services;
(e) transport most suitable will be used by the Company unless otherwise specified at the time of booking;
(f) standard tickets purchased shall apply for rail and/or air travel/taxi. In the event the Company travels by car a charge of not less than sixty (60 cents per kilometer shall apply);
(g) the Company shall not be liable for changes in personal circumstances that prevent the Client from attending / completing the Services; and
(h) all requests for the refund of Fee must be made in writing directly to the Company.
5. Fee and Payment
5.1 At the Company’s sole discretion the Fee shall be either:
(a) as indicated on any invoice provided by the Company to the Client; or
(b) the Fee as at the date of delivery of the Services according to the Company’s current Fee list; or
(c) the Company’s quoted Fee (subject to clause 5.2) which will be valid for the period stated in the quotation or otherwise for a period of seven (7) days.
5.2 The Company reserves the right to change the Fee if a variation to the Company’s quotation is requested. Any variation from the plan of scheduled Services (including, but not limited to, any variation as a result of fluctuations in currency exchange rates, travel expenses or increases to Company in the cost of materials and labour) will be charged for on the basis of the Company’s quotation and will be shown as variations on the invoice.
5.3 At the Company’s sole discretion a non-refundable deposit may be required.
5.4 Time for payment for the Services being of the essence, the Fee will be payable by the Client on the date/s determined by the Company, which may be:
(a) on delivery of the Services;
(b) before delivery of the Services;
(c) fourteen (14) days following the date of the invoice;
(d) the date specified on any invoice or other form as being the date for payment; or
(e) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by the Company.
5.5 Payment may be made by cash, cheque, bank cheque, money order, electronic/on-line banking, credit card or by any other method as agreed to between the Client and the Company. Payments made by cheques, bank cheques or money orders are to be made payable to “Ethnic Interpreters Pty Ltd”.
5.6 Unless otherwise stated the Fee does not include GST. In addition to the Fee the Client must pay to the Company an amount equal to any GST the Company must pay for any supply by the Company under this or any other agreement for providing the Company’s Services. 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 Fee. In addition the Client must pay any other taxes and duties that may be applicable in addition to the Fee except where they are expressly included in the Fee.
6. Delivery of Services
6.1 At the Company’s sole discretion delivery of the Services shall take place when:
(a) the Services are supplied to the Client at the Company’s address; or
(b) the Services are supplied to the Client at the Client’s nominated address.
6.2 At the Company’s sole discretion the cost of delivery is in addition to the Price.
6.3 Any time specified by the Company for delivery of the Services is an estimate only and the Company 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 Services to be supplied at the time and place as was arranged between both parties. In the event that the Company is unable to supply the Services as agreed solely due to any action or inaction of the Client then the Company shall be entitled to charge a reasonable fee for re-supplying the Services at a later time and date.
7. Confidentiality
7.1 Each party agrees to treat all information and ideas communicated to it by the other confidentially and agree not to divulge it to any third party, without the other party's written consent. The parties will not copy any such information supplied, and will either return it or destroy it (together with any copies thereof) on request of the other party.
8. Risk
8.1 Irrespective of whether the Company retains ownership of any Incidental Items all risk for such items shall pass to the Client as soon as such items are delivered to the Client and shall remain with the Client until such time as the Company may repossess the Incidental Items. The Client must insure all Incidental Items on or before delivery.
8.2 The Company reserves its right to seek compensation or damages for any damage, destruction or loss suffered in relation to the Incidental Items as a result of the Client’s failure to insure in accordance with clause 8.1.
9. Title
9.1 The Company and the Client agree that where it is intended that the ownership of Incidental Items is to pass to the Client that such ownership shall not pass until:
(a) the Client has paid the Company all amounts owing for the Services; and
(b) the Client has met all other obligations due by the Client to the Company in respect of all contracts between the Company and the Client.
9.2 Receipt by the Company 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 and until then the Company’s ownership or rights in respect of the Incidental Items shall continue.
9.3 It is further agreed that:
(a) the Client is only a bailee of the Incidental Items and must return the Incidental Items to the Company immediately upon request by the Company;
(b) the Client holds the benefit of the Client’s insurance of the Incidental Items on trust for the Company and must pay to the Company the proceeds of any insurance in the event of the Incidental Items being lost, damaged or destroyed;
(c) the Client must not sell, dispose, or otherwise part with possession of the Incidental Items. If the Client sells, disposes or parts with possession of the Incidental Items then the Client must hold the proceeds of sale of the Incidental Items on trust for the Company and must pay or deliver the proceeds to the Company on demand.
(d) the Client should not convert or process the Incidental Items 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 the Company and must dispose of or return the resulting product to the Company as the Company so directs.
(e) the Client shall not charge or grant an encumbrance over the Incidental Items nor grant nor otherwise give away any interest in the Incidental Items while they remain the property of the Company;
(f) the Client irrevocably authorises the Company to enter any premises where the Company believes the Incidental Items are kept and recover possession of the Incidental Items.
10. Personal Property Securities Act 2009 (“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 Incidental Items that have previously been supplied and that will be supplied in the future by the Company 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 the Company may reasonably require to;
(i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
(ii) register any other document required to be registered by the PPSA; or
(iii) correct a defect in a statement referred to in clause 10.3(a)(i) or 10.3(a)(ii);
(b) indemnify, and upon demand reimburse, the Company 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 Incidental Items charged thereby;
(c) not register a financing change statement in respect of a security interest without the prior written consent of the Company;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Incidental Items in favour of a third party without the prior written consent of the Company.
10.4 The Company and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
10.5 The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
10.6 The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
10.7 Unless otherwise agreed to in writing by the Company, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.
10.8 The Client must unconditionally ratify any actions taken by the Company under clauses 10.3 to 10.5.
10.9 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 of the PPSA.
11. Security and Charge
11.1 In consideration of the Company agreeing to supply Services, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
11.2 The Client indemnifies the Company from and against all the Company’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising the Company’s rights under this clause.
11.3 The Client irrevocably appoints the Company and each director of the Company as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 11 including, but not limited to, signing any document on the Client’s behalf.
12. Defects, Warranties and the Competition and Consumer Act 2010 (CCA)
12.1 The Client must inspect the Company’s Services on completion of the Services and must within seven (7) days notify the Company in writing of any evident defect in the Services or Incidental Items provided (including the Company’s workmanship) or of any other failure by the Company to comply with the description of, or quote for, the Services which the Company was to supply. The Client must notify any other alleged defect in the Company’s Services or Incidental Items as soon as is reasonably possible after any such defect becomes evident. Upon such notification the Client must allow the Company to review the Services or Incidental Items that were provided.
12.2 Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (Non-Excluded Guarantees).
12.3 The Company acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
12.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, the Company makes no warranties or other representations under these terms and conditions including, but not limited to, the quality or suitability of the Services. The Company’s liability in respect of these warranties is limited to the fullest extent permitted by law.
12.5 If the Client is a consumer within the meaning of the CCA, the Company’s liability is limited to the extent permitted by section 64A of Schedule 2.
12.6 If the Company is required to rectify, re-supply, or pay the cost of re-supplying the Services under this clause or the CCA, but is unable to do so, then the Company may refund any money the Client has paid for the Services but only to the extent that such refund shall take into account the value of Services and Incidental Items which have been provided to the Client which were not defective.
12.7 If the Client is not a consumer within the meaning of the CCA, the Company’s liability for any defective Services or Incidental Items is:
(a) limited to the value of any express warranty or warranty card provided to the Client by the Company at the Company’s sole discretion;
(b) otherwise negated absolutely.
12.8 Notwithstanding clauses 12.1 to 12.7 but subject to the CCA, the Company shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
(a) the Client failing to properly maintain or store any Incidental Items;
(b) the Client using the Incidental Items for any purpose other than that for which they were designed;
(c) the Client continuing to use any Incidental Item after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
(d) interference with the Services by the Client or any third party without the Company’s prior approval;
(e) the Client failing to follow any instructions or guidelines provided by the Company;
(f) fair wear and tear, any accident, or act of God.
13. Intellectual Property
13.1 Where the Company has designed, drawn or developed Incidental Items for the Client, then the copyright in any Incidental Items shall remain the property of the Company.
13.2 The Client agrees that the Company may (at no cost) use for the purposes of marketing or entry into any competition, any Incidental Items which the Company has created for the Client.
14. Default and Consequences of Default
14.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at the Company’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
14.2 If the Client owes the Company any money the Client shall indemnify the Company from and against all costs and disbursements incurred by the Company in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, the Company’s collection agency costs, and bank dishonour fees).
14.3 Without prejudice to any other remedies the Company may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions the Company may suspend or terminate the supply of Services to the Client. The Company will not be liable to the Client for any loss or damage the Client suffers because the Company has exercised its rights under this clause.
14.4 Without prejudice to the Company’s other remedies at law the Company shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to the Company shall, whether or not due for payment, become immediately payable if:
(a) any money payable to the Company becomes overdue, or in the Company’s opinion the Client will be unable to make a payment when it falls due;
(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.
15. Cancellation
15.1 The Company may cancel any contract to which these terms and conditions apply or cancel delivery of Services at any time before the Services are commenced by giving written notice to the Client. On giving such notice the Company shall repay to the Client any money paid by the Client for the Services. The Company shall not be liable for any loss or damage whatsoever arising from such cancellation.
15.2 In the event that the Client cancels delivery of the Services the Client shall be liable for any and all loss incurred (whether direct or indirect) up to the time of, or as a direct result of the cancellation, (including, but not limited to, any loss of profits) notwithstanding that at the Company’s sole discretion:
(a) if the Client cancels and/or postpones the Services within twenty-four (24) hours of when the Services are due to take place a fee of up to one hundred percent (100%) of the Fee shall apply; or
(b) if consecutive days bookings notice, an fee of seventy percent (70%) of the Fee may be applicable.; or
(c) prior to twenty-four (24) hours’ notice, no additional fee shall be applicable; or
(d) if any NESB (non-English Speaking Background) party and/or an officer fails to attend, the Company will wait approximately twenty-forty (20-40) minutes before departing, after consultation with the organiser, In such a situation, the full fee due shall apply.
16. Privacy Act 1988
16.1 The Client agrees for the Company to obtain from a credit reporting agency a credit report containing personal credit information about the Client in relation to credit provided by the Company.
16.2 The Client agrees that the Company may exchange information about the Client with those credit providers either named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency for the following purposes:
(a) to assess an application by the Client; and/or
(b) to notify other credit providers of a default by the Client; and/or
(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/or
(d) to assess the creditworthiness of the Client.
The Client understands that the information exchanged can include anything about the Client’s creditworthiness, credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act 1988.
16.3 The Client consents to the Company being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
16.4 The Client agrees that personal credit information provided may be used and retained by the Company for the following purposes (and for other purposes as shall be agreed between the Client and Company or required by law from time to time):
(a) the provision of Services; and/or
(b) the marketing of Services by the Company, its agents or distributors; and/or
(c) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Services; and/or
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
(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.
16.5 The Company 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;
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Client.
16.6 The information given to the credit reporting agency may include:
(a) personal particulars (the Client’s name, sex, address, previous addresses, date of birth, name of employer and driver’s licence number);
(b) details concerning the Client’s application for credit or commercial credit and the amount requested;
(c) advice that the Company is a current credit provider to the Client;
(d) advice of any overdue accounts, loan repayments, and/or any outstanding monies owing which are overdue by more than sixty (60) days, and for which debt collection action has been started;
(e) that the Client’s overdue accounts, loan repayments and/or any outstanding monies are no longer overdue in respect of any default that has been listed;
(f) information that, in the opinion of the Company, the Client has committed a serious credit infringement (that is, fraudulently or shown an intention not to comply with the Client’s credit obligations);
(g) advice that cheques drawn by the Client for one hundred dollars ($100) or more, have been dishonoured more than once;
(h) that credit provided to the Client by the Company has been paid or otherwise discharged.
17. Liability Limitations
17.1 The maximum liability of the Company under this contract shall at no time exceed the amount of Professional Indemnity insurance and or Public Liability insurance cover carried by the Company.
17.2 The Client agrees to indemnify the Company, (including its partners, associates or employees) and any other person who may be sought to be made liable in excess of the limit of liability described in clause 17.1 in respect of any activity arising from, or connected with, this contract in respect of any claim of whatsoever kind, that may be made by any person and any costs and expenses that may be incurred by the Company.
18. General
18.1 The failure by the Company to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect the Company’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
18.2 These terms and conditions and any contract to which they apply shall be governed by the laws of the state of New South Wales in which the Company has its principal place of business, and are subject to the jurisdiction of the Sydney Courts in that state.
18.3 The Client shall not be entitled to set off against, or deduct from the Fee, any sums owed or claimed to be owed to the Client by the Company nor to withhold payment of any invoice because part of that invoice is in dispute.
18.4 The Company may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
18.5 The Client agrees that the Company may amend these terms and conditions at any time. If the Company makes a change to these terms and conditions, then that change will take effect from the date on which the Company notifies the Client of such change. The Client will be taken to have accepted such changes if the Client makes a further request for the Company to provide Services to the Client.
18.6 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
18.7 The Client warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it.