1.1 “Repairer” means Dallas Automotive Pty Ltd, its successors and assigns or any person acting on behalf of and with the authority of Dallas Automotive Pty Ltd.
1.2 “Customer” means the person/s ordering the Works as specified in any invoice, document or order, and if there is more than one Customer is a reference to each Customer jointly and severally.
1.3 “Works” means all Works or Materials supplied by the Repairer to the Customer at the Customer’s request from time to time (where the context so permits the terms ‘Works’ or ‘Materials’ shall be interchangeable for the other).
1.4 “Price” means the Price payable for the Works as agreed between the Repairer and the Customer in accordance with clause 4 below.
2.1 The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for or accepts delivery of any Works.
2.2 These terms and conditions may only be amended with the Repairer’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Customer and the Repairer.
3. Change in Control
3.1 The Customer shall give the Repairer not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s name, address, contact phone or fax number/s, or business practice). The Customer shall be liable for any loss incurred by the Repairer as a result of the Customer’s failure to comply with this clause.
4. Price and Payment
4.1 At the Repairer’s sole discretion the Price shall be either:
(a) as indicated on invoices provided by the Repairer to the Customer in respect of Works performed or Materials supplied; or
(b) the Repairer’s Price at the date of delivery of the Works according to the Repairer’s current pricelist; or
(c) the Repairer’s quoted Price (subject to clause 4.2) which shall be binding upon the Repairer provided that the Customer shall accept the Repairer’s quotation in writing within seven (7) days.
4.2 The Repairer reserves the right to change the Price:
(a) if a variation to the Materials which are to be supplied is requested; or
(b) if a variation to the Works originally scheduled (including any applicable plans or specifications) is requested; or
(c) where additional Works are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, any variation as a result of fluctuations in currency exchange rates or increases to the Repairer in the cost of taxes, levies, materials and labour) which are only discovered on commencement of the Works; or
(d) if the vehicle is dissembled to investigate the issue and the Customer does not want to proceed with the Works.
4.3 At the Repairer’s sole discretion a non-refundable deposit may be required.
4.4 Time for payment for the Works being of the essence, the Price will be payable by the Customer on the date/s determined by the Repairer, which may be:
(a) on completion of the Works; or
(b) by way of progress payments in accordance with the Repairer’s specified progress payment schedule. Such progress payment claims may include the reasonable value of authorised variations and the value of any Materials delivered to the site but not yet installed; or
(c) the date specified on any invoice or other form as being the date for payment; or
(d) failing any notice to the contrary, the date which is thirty (30) days following the date of any invoice given to the Customer by the Repairer.
4.5 Payment may be made by cash, cheque, electronic/on-line banking, credit card – VISA and MasterCard only – (plus a surcharge of up to two and a half percent (2.5%) of the Price), or by any other method as agreed to between the Customer and the Repairer.
4.6 Unless otherwise stated the Price does not include GST. In addition to the Price the Customer must pay to the Repairer an amount equal to any GST the Repairer must pay for any supply by the Repairer under this or any other agreement for the sale of the Materials. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition the Customer 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.
5. Delivery of the Works
5.1 Delivery (“Delivery”) of the Materials is taken to occur at the time that the Customer or the Customer’s nominated carrier takes possession of the Materials at the Repairer’s address.
5.2 If the Customer fails to collect the vehicle within the required time after receipt of a Notice of Completion or a Safety Notice the Customer must pay the Repairer a storage charge of twenty-five ($25.00) per day.
5.3 Subject to clause 5.3 it is the Repairer’s responsibility to ensure that the Works start as soon as it is reasonably possible. The Works commencement date will be put back and/or the completion date extended by whatever time is reasonable in the event that the Repairer claims an extension of time (by giving the Customer written notice) where completion is delayed by an event beyond the Repairer’s control., including but not limited to any failure by the Customer to make a selection.
5.4 Any time or date given by the Repairer to the Customer is an estimate only. The Repairer shall not be liable for any loss or damage whatsoever due to failure by the Repairer to deliver the Works (or any part of them) promptly or at all, where due to circumstances beyond the reasonable control of the Repairer.
6.1 Risk of damage to or loss of the Materials passes to the Customer on Delivery and the Customer must insure the Materials on or before Delivery.
6.2 If any of the Materials are damaged or destroyed following delivery but prior to ownership passing to the Customer, the Repairer is entitled to receive all insurance proceeds payable for the Materials. The production of these terms and conditions by the Repairer is sufficient evidence of the Repairer’s rights to receive the insurance proceeds without the need for any person dealing with the Repairer to make further enquiries.
7. Insurance Claims
7.1 If the Customer has insurance or other contractual arrangements for the payment of charges due under this contract, this will not affect the Customer’s personal liability to pay all charges due under this contract, except that the Customer’s liability will be reduced pro-rata to the extent that payments are made to the Agent from other such sources. The Customer also agrees that they shall be liable and make payment when due for any insurance excess where necessary.
7.2 Any work undertaken which is part of an insurance claim is undertaken with the understanding that should the claim be declined, or payment of the claim delayed, the Customer is liable for payment of the full Price.
8.1 The Repairer and the Customer agree that ownership of the Materials shall not pass until:
(a) the Customer has paid the Repairer all amounts owing to the Repairer; and
(b) the Customer has met all of its other obligations to the Repairer.
8.2 Receipt by the Repairer 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.
8.3 It is further agreed that:
(a) until ownership of the Materials passes to the Customer in accordance with clause 8.1 that the Customer is only a bailee of the Materials and unless the Materials have become fixtures must return the Materials to the Repairer on request.
(b) the Customer holds the benefit of the Customer’s insurance of the Materials on trust for the Repairer and must pay to the Repairer the proceeds of any insurance in the event of the Materials being lost, damaged or destroyed.
(c) the production of these terms and conditions by the Repairer shall be sufficient evidence of the Repairer’s rights to receive the insurance proceeds direct from the insurer without the need for any person dealing with the Repairer to make further enquiries.
(d) the Customer must not sell, dispose, or otherwise part with possession of the Materials other than in the ordinary course of business and for market value. If the Customer sells, disposes or parts with possession of the Materials then the Customer must hold the proceeds of any such act on trust for the Repairer and must pay or deliver the proceeds to the Repairer on demand.
(e) the Customer should not convert or process the Materials or intermix them with other Materials but if the Customer does so then the Customer holds the resulting product on trust for the benefit of the Repairer and must sell, dispose of or return the resulting product to the Repairer as it so directs.
(f) unless the Materials have become fixtures the Customer irrevocably authorises the Repairer to enter any premises where the Repairer believes the Materials are kept and recover possession of the Materials.
(g) the Repairer may recover possession of any Materials in transit whether or not delivery has occurred.
(h) the Customer shall not charge or grant an encumbrance over the Materials nor grant nor otherwise give away any interest in the Materials while they remain the property of the Repairer.
(i) the Repairer may commence proceedings to recover the Price of the Materials sold notwithstanding that ownership of the Materials has not passed to the Customer.
9. Personal Property Securities Act 2009 (“PPSA”)
9.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
9.2 Upon assenting to these terms and conditions in writing the Customer 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
Materials that have previously been supplied and that will be supplied in the future by the Repairer to the Customer.
9.3 The Customer 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 Repairer 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 9.3(a)(i) or 9.3(a)(ii);
(b) indemnify, and upon demand reimburse, the Repairer 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 Materials charged thereby;
(c) not register a financing change statement in respect of a security interest without the prior written consent of the Repairer;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Materials in favour of a third party without the prior written consent of the Repairer; and
(e) immediately advise the Repairer of any material change in its business practices of selling the Materials which would result in a change in the nature of proceeds derived from such sales.
9.4 The Repairer and the Customer agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
9.5 The Customer hereby waives its rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
9.6 The Customer waives its rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
9.7 Unless otherwise agreed to in writing by the Repairer, the Customer waives its right to receive a verification statement in accordance with section 157 of the PPSA.
9.8 The Customer shall unconditionally ratify any actions taken by the Repairer under clauses 9.3 to 9.5.
9.9 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.
10. Security and Charge
10.1 In consideration of the Repairer agreeing to supply the Materials, the Customer 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 Customer either now or in the future, to secure the performance by the Customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
10.2 The Customer indemnifies the Repairer from and against all the Repairer’s costs and disbursements including legal costs on a solicitor and own Customer basis incurred in exercising the Repairer’s rights under this clause.
10.3 The Customer irrevocably appoints the Repairer and each director of the Repairer as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 10 including, but notlimited to, signing any document on the Customer’s behalf.
11. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
11.1 The Customer must inspect all Materials on delivery (or the Works on completion) and must within three (3) days of delivery notify the Repairer in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Customer must notify any other alleged defect in the Materials/Works as soon as reasonably possible after any such defect becomes evident. Upon such notification the Customer must allow the Repairer to inspect the Materials or to review the Works provided.
11.2 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).
11.3 The Repairer acknowledges that nothing in these terms and conditions purports to modify or exclude the NonExcluded Guarantees.
11.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, the Repairer makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Materials/Works. The Repairer’s liability in respect of these warranties is limited to the fullest extent permitted by law.
11.5 If the Customer is a consumer within the meaning of the CCA, the Repairer’s liability is limited to the extent permitted by section 64A of Schedule 2.
11.6 If the Repairer is required to replace any Materials under this clause or the CCA, but is unable to do so, the Repairer may refund any money the Customer has paid for the Materials.
11.7 If the Repairer is required to rectify, re-supply, or pay the cost of re-supplying the Works under this clause or the CCA, but is unable to do so, then the Repairer may refund any money the Customer has paid for the Works but only to the extent that such refund shall take into account the value of Works and Materials which have been provided to the Customer which were not defective.
11.8 If the Customer is not a consumer within the meaning of the CCA, the Repairer’s liability for any defect or damage in the Materials is:
(a) limited to the value of any express warranty or warranty card provided to the Customer by the Repairer at the Repairer’s sole discretion;
(b) limited to any warranty to which the Repairer is entitled, if the Repairer did not manufacture the Materials;
(c) otherwise negated absolutely.
11.9 Subject to this clause 11, returns will only be accepted provided that:
(a) the Customer has complied with the provisions of clause 11.1; and
(b) the Repairer has agreed that the Materials are defective; and
(c) the Materials are returned within a reasonable time at the Customer’s cost (if that cost is not significant); and
(d) the Materials are returned in as close a condition to that in which they were delivered as is possible.
11.10 Notwithstanding clauses 11.1 to 11.9 but subject to the CCA, the Repairer 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 Customer failing to properly maintain or store any Materials;
(b) the Customer using the Materials for any purpose other than that for which they were designed;
(c) the Customer continuing to use any Materials after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
(d) interference with the Works by the Customer or any third party without the Repairer’s prior approval;
(e) the Customer failing to follow any instructions or guidelines provided by the Repairer;
(f) fair wear and tear, any accident, or act of God.
11.11 In the case of second hand Materials, unless the Customer is a consumer under the CCA, the Customer acknowledges that it has had full opportunity to inspect the second hand Materials prior to delivery and accepts them with all faults and that to the extent permitted by law no warranty is given by the Repairer as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. The Customer acknowledges and agrees that the Repairer has agreed to provide the Customer with the second hand Materials and calculated the Price of the second hand Materials in reliance of this clause 11.11.
11.12 The Repairer may in its absolute discretion accept non-defective Materials for return in which case the Repairer may require the Customer to pay handling fees of up to twenty-five percent (25%) of the value of the returned Materials plus any freight costs.
11.13 Notwithstanding anything contained in this clause if the Repairer is required by a law to accept a return then the Repairer will only accept a return on the conditions imposed by that law.
12. Intellectual Property
12.1 Where the Repairer has designed, drawn, written plans or a schedule of Works, or created any products for the Customer, then the copyright in all such designs, drawings, documents, plans, schedules and products shall remain vested in the Repairer, and shall only be used by the Customer at the Repairer’s discretion.
12.2 The Customer warrants that all designs, specifications or instructions given to the Repairer will not cause the Repairer to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify the Repairer against any action taken by a third party against the Repairer in respect of any such infringement.
12.3 The Customer agrees that the Repairer may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings, plans or products which the Repairer has created for the Customer.
13. Default and Consequences of Default
13.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two percent (2%) per calendar month (and at the Repairer’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
13.2 If the Customer owes the Repairer any money the Customer shall indemnify the Repairer from and against all costs and disbursements incurred by the Repairer in recovering the debt (including but not limited to internal administration fees of minimum fifteen ($15.00) for each reminder notice or Re-Render issued by the Repairer and an administration fee of twenty-five ($25.00) per month or part thereof the account remain outstanding, legal costs on a solicitor and own Customer basis, the Repairer’s collection agency costs, and bank dishonour fees).
13.3 Without prejudice to any other remedies the Repairer may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions the Repairer may suspend or terminate the supply of Works to the Customer. The Repairer will not be liable to the Customer for any loss or damage the Customer suffers because the Repairer has exercised its rights under this clause.
13.4 Without prejudice to the Repairer’s other remedies at law the Repairer shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to the Repairer shall, whether or not due for payment, become immediately payable if:
(a)any money payable to the Repairer becomes overdue, or in the Repairer’s opinion the Customer will be unable to make a payment when it falls due;
(b) the Customer becomes insolvent or bankrupt, 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 Customer or any asset of the Customer.
14. Compliance with Laws
14.1 The Customer and the Repairer shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the works.
14.2 The Customer shall obtain (at the expense of the Customer) all licenses and approvals that may be required for the works.
14.3 The Customer agrees that the site will comply with any occupational health and safety laws relating to building/construction sites and any other relevant safety standards or legislation
15. Dispute Resolution
15.1 If a dispute arises between the parties to this contract then either party shall send to the other party a notice of dispute in writing adequately identifying and providing details of the dispute. Within fourteen (14) days after service of a notice of dispute, the parties shall confer at least once, to attempt to resolve the dispute. At any such conference each party shall be represented by a person having authority to agree to a resolution of the dispute. In the event that the dispute cannot be so resolved either party may by further notice in writing delivered by hand or sent by certified mail to the other party refer such dispute to arbitration. Any arbitration shall be:
(a) referred to a single arbitrator to be nominated by the President of the Institute of Arbitrators Australia; and
(b) conducted in accordance with the Institute of Arbitrators Australia Rules for the Conduct of Commercial Arbitration.
16.1 The Repairer may cancel any contract to which these terms and conditions apply or cancel delivery of Works at any time before the Works are commenced by giving written notice to the Customer. On giving such notice the Repairer shall repay to the Customer any sums paid in respect of the Price, less any amounts owing by the Customer to the Repairer for Works already performed. The Repairer shall not be liable for any loss or damage whatsoever arising from such cancellation.
16.2 In the event that the Customer cancels the delivery of Works the Customer shall be liable for any and all loss incurred (whether direct or indirect) by the Repairer as a direct result of the cancellation (including, but not limited to, any loss of profits).
16.3 Cancellation of orders for products made to the Customer’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
17. Privacy Act 1988
17.1 The Customer agrees for the Repairer to obtain from a credit reporting agency a credit report containing personal credit information about the Customer in relation to credit provided by the Repairer.
17.2 The Customer agrees that the Repairer may exchange information about the Customer with those credit providers either named as trade referees by the Customer or named in a consumer credit report issued by a credit reporting agency for the following purposes:
(a) to assess an application by the Customer; and/or
(b) to notify other credit providers of a default by the Customer; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Customer is in default with other credit providers; and/or
(d) to assess the creditworthiness of the Customer.
The Customer understands that the information exchanged can include anything about the Customer’s creditworthiness, credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act 1988.
17.3 The Customer consents to the Repairer being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
17.4 The Customer agrees that personal credit information provided may be used and retained by the Repairer for the following purposes (and for other purposes as shall be agreed between the Customer and Repairer or required by law from time to time):
(a) the provision of Works; and/or
(b) the marketing of Works by the Repairer, its agents or distributors; and/or
(c) analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to the provision of Works; and/or
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Customer; and/or
(e) enabling the daily operation of Customer’s account and/or the collection of amounts outstanding in the Customer’s account in relation to the Works.
17.5 The Repairer may give information about the Customer to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Customer;
(b) allow the credit reporting agency to create or maintain a credit information file containing information about theCustomer.
17.6 The information given to the credit reporting agency may include:
(a) personal particulars (the Customer’s name, sex, address, previous addresses, date of birth, name of employer and driver’s licence number);
(b) details concerning the Customer’s application for credit or commercial credit and the amount requested;
(c) advice that the Repairer is a current credit provider to the Customer;
(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 Customer’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 Repairer, the Customer has committed a serious credit infringement (that is, fraudulently or shown an intention not to comply with the Customer’s credit obligations);
(g) advice that cheques drawn by the Customer for one hundred dollars ($100) or more, have been dishonoured more than once;
18. Unpaid Seller’s Rights
18.1 Where the Customer has left any item with the Repairer for repair, modification, exchange or for the Repairer to perform any other service in relation to the item and the Repairer has not received or been tendered the whole of any moneys owing to it by the Customer, the Repairer shall have, until all moneys owing to the Repairer are paid:
(a)a lien on the item; and
(b) the right to retain or sell the item, such sale to be undertaken in accordance with any legislation applicable to the sale or disposal of uncollected Materials.
18.2 The lien of the Repairer shall continue despite the commencement of proceedings, or judgment for any moneys owing to the Repairer having been obtained against the Customer.
19.1 The failure by the Repairer to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect the Repairer’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.
19.2 These terms and conditions and any contract to which they apply shall be governed by the laws of Victoria in which the Repairer has its principal place of business, and are subject to the jurisdiction of the courts of Shepparton in that state.
19.3 Subject to clause 11 the Repairer shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by the Repairer of these terms and conditions (alternatively the Repairer’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Works).
19.4 The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by the Repairer nor to withhold payment of any invoice because part of that invoice is in dispute.
19.5 The Repairer may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.
19.6 The Customer agrees that the Repairer may amend these terms and conditions at any time. If the Repairer makes a change to these terms and conditions, then that change will take effect from the date on which the Repairer notifies the Customer of such change. The Customer will be taken to have accepted such changes if the Customer makes a further request for the Repairer to provide any Works to the Customer.
19.7 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.
19.8 The Customer 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