These terms and conditions form part of the Agreement between the Customer and KRG Contracting Pty Ltd (ACN 166 095 816) which applies immediately upon the earlier of either, the Customer signing our Services Sheet, or, upon us receiving verbal or written instructions from the Customer, to proceed with provision of the Services or purchase of Materials.
These terms and conditions apply to all Services provided by us to the Customer, on and from the date of the Agreement, unless we have expressly stated otherwise, in writing, addressed to the Customer.
Agreement means the Agreement between the Mechanic and the Customer, whereby the Customer has requested, and the Mechanic has agreed to provide the Customer with Services or Materials. The terms of the Agreement which includes these terms and conditions.
Mechanic means KRG Contracting Pty Ltd its successors and assigns or any person acting on behalf of and with the authority of the Mechanic. A reference to we, our, or us is a reference to [party name].
The Customer is a reference to the person or entity to whom Services are being provided, and who is liable for payment of the Services provided by us, including their agents, persons purporting to be acting on behalf of the person or entity, or their permitted assigns. Where there is more than one person or entity, the Customer or the Customers is a reference to both those persons and/or entities, jointly and severally.
Materials means any materials, Materials, parts or items we need to acquire in order to perform the Services from time to time.
Parties means both the Customer and the Mechanic.
Services means the Services we have been requested to provide the Customer, from time to time, and includes any Additional Services and Materials.
Additional Services means any mechanical services provided by us, to the Customer, after the date on which we commence the Services, which are included as Services, for the purposes of this Agreement.
Workshop means the workshop where the Mechanic ordinarily conducts the Services.
Estimate means the estimate for Services first provided by the Mechanic to the Customer, before the Services or Materials are provided.
Invoice means our tax invoices issued to the Customer, containing our charges for Services and Materials provided in accordance with this Agreement.
Charges means the costs the Customer are liable for as a result of this Agreement and our provision of the Services, Materials or other costs arising out, or in connection with this Agreement.
Vehicle means the vehicle(s) on which the Services are provided and includes any Vehicle Component.
Vehicle Component means any part of a Vehicle, or component of a vehicle on its own, on which the Services are provided.
Time of Collection means when we have advised the Customer that the Services are completed and the Vehicle or Vehicle Component is either delivered to the Customer, or being collected by the Customer.
3.1 We will provide the Customer with a Quote of our charges for the Services and any Materials, before the Services are provided, or Materials obtained.
3.2 A Quote is valid for seven (7) days from the date the Estimate is given.
3.3 Where Additional Services are provided, the Customer acknowledge and agree that our charges will be in excess of the Quote. By authorising us to provide Additional Services the Customer agrees that the Customer is liable for these additional costs.
3.4 The Mechanic will not be bound by the amount of the Quote, and the Customer acknowledges and agrees that the amount invoiced, may differ from the amount contained in the Quote.
3.5 The Customer acknowledges and agrees that the Customer shall be liable to pay any and all charges contained in the Mechanic’s Invoice(s), in accordance with these terms and conditions.
4. CHARGES FOR SERVICES & MATERIALS
4.1 The Customer will be charged an hourly rate, based on the time spent by us, providing the Services. Our hourly rates, excluding GST, for performance of the Services will be contained on our Invoice.
4.2 The Customer will be charged for the cost of any Materials we are required to supply to properly provide the Services. The Customer agree that the Customer will be liable for any additional costs for transportation of the Materials to our Workshop, or for any costs we incur for storage of the Materials at our Workshop, until the Materials are used during the provision of the Services.
5. ADDITIONAL CHARGES
5.1 The Customer acknowledge and agree that we are entitled to charge the Customer, and the Customer will be liable to us for charges as a result of:
- a variation to the nature of the Services, requested by the Customer, or required to be undertaken by law; or
- Additional Services, being provided by us, which may be required as a result of the discovery of hidden, or previously unidentifiable difficulties (including, but not limited to further faults or issues which are found upon disassembly of the Vehicle or Vehicle Component, and/or further inspection) which are only discovered upon us commencing provision of the Services.
5.2 We are entitled to charge the Customer a storage fee of $20.00 a day as a result of the Customer’s failure to collect the Customer’s Vehicle or Vehicle Component, within twenty four (24) hours of us advising the Customer that the Vehicle or Vehicle Component is available for collection or delivery to the Customer and where the Customer has any incurred any Charges which remain unpaid, whether or not those Charges are due for payment, or otherwise.
6. INVOICES AND PAYMENT
6.1 We will, provide the Customer with Invoice(s) outlining our Charges, upon completion of the Services, or at any stage during the provision of the Services, which we may decide, at our sole discretion depending on the nature of the Services.
6.2 Invoices must be paid, in full, without deduction or set off, on the day the Services are provided and completed, before the Vehicle or Vehicle Component will be released to the Customer.
6.3 Where payment is not required at the Time of Collection, Invoices must be paid in full, without deduction or set off, no later than seven (7) days from the date of the Invoice.
6.4 Invoices must be paid by the payment methods as contained on the Invoice, unless otherwise agreed in writing between the Customer and us.
6.5 Payment of Invoices must be received by us, at, or before, the Time of Collection of the Vehicle or Vehicle Component. Until payment other than by cash is honoured, cleared or recognised, payment is not deemed to have been made, and we are not required to release the Vehicle or Vehicle Component to the Customer.
6.6 The terms and conditions stated on an Invoice are in addition to, and form part of these terms and conditions and the Agreement.
7. PROVISION OF SERVICES
7.1 We will provide an estimate of the date or time it will take for us to complete the Services or provide the Materials, however make no guarantee that the Services will be completed by date or time estimated.
7.2 Any date or time estimated as the date or time that the Services will be completed, or the Materials will be provided is an estimate only, and the Customer acknowledges and agrees that we shall not be liable for any loss or damage incurred by the Customer, as a result of any delay to the completion or provision of the Services or Materials.
7.3 We shall not be liable for any loss or damage suffered by the Customer as a result of delays to the completion or provision of Services by us, where the delay is the consequence, either wholly or partly, of action or inaction by the Customer.
8. DELAY IN PERFORMANCE OF SERVICES
8.1 If the Mechanic does not commence, or complete the Services within a reasonable period from the date that has been agreed by the Parties, for the commencement or completion of the Services, then, the Customer may elect to either continue to wait until the Mechanic can start performing the Services, or complete performing the Services, or terminate this Agreement by giving written or verbal notice to the Mechanic.
8.2 If the Mechanic has commenced performing the Services, and the Customer elects to terminate this Agreement, then the Customer shall be liable for Charges for any Services performed up to the time of termination, and for any Materials which the Mechanic have legal obligation to pay for.
A reasonable period of time depends on the type of Services required to be performed, and the length of time they will take to perform. For example, if the Mechanic advises that the Services will take a few hours to complete, then if the Mechanic fails to start performing the Services within e.g. half a day, then the Customer will not be entitled to terminate the Agreement. If the Services will take a week, and we fail to commence performance of the Services within two weeks, then the Customer may be entitled to terminate the Agreement.
8.3 The Customer shall not be entitled to terminate this agreement, where delay is due to situations or events outside the reasonable control of the Mechanic, including, for example:
- If Materials required for the provision of the Services are not delivered within the anticipated time frame, whether or not the delay is not caused by any action or inaction by the Mechanic, and it is not reasonably possible to obtain alternative or replacement Materials within a reasonable time or for a reasonable price;
- Where the Customer varies the Services or Materials to be performed or supplied, resulting in the Mechanic having to undertake Additional Services or obtain additional Materials;
- Where the Mechanic is required to wait for the Customer, or other service providers or third parties, to complete other work prior to the Mechanic being able to perform the Services;
- Where the Mechanic is unable to obtain access to the Vehicle or Vehicle Component at the time that we have agreed with the Customer to have access, or if the Services are to be provided at a location other than our Warehouse, the location is unsuitable or unsafe for the provision of the Services, such suitability will be at the sole discretion of the Mechanic.
9.1 The Parties agree that ownership of Materials shall not pass until:
- The Customer has paid all amounts owing to the Mechanic; and
- Any and all other obligations the Customer may have to us, have been satisfied and discharged.
9.2 The Parties further agree and acknowledge that:
- Until ownership of the Materials has passed to the Customer, the Customer is the bailee of the Materials and shall return the Materials to us, upon request.
- The Customer must not sell, dispose, or otherwise part with possession of the Materials, without prior consent, first obtained on each occasion. If the Customer sells, dispose or part with the Materials then the Customer agrees that the Customer hold the proceeds obtained, on trust for us, and the Customer shall be required to pay us these proceeds, without any deduction or set off, on demand.
- The Customer agrees and irrevocably authorises us to enter onto any premises where we believe the Materials are kept, to recover possession of the Materials.
- The Customer shall not charge or grant an encumbrance over the Materials, nor grant or otherwise give away any interest in the Materials while they remain our property.
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 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 us to the Customer.
10.3 The Customer undertakes to:
- 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 we 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);
- indemnify, and upon demand reimburse, us 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;
- not register a financing change statement in respect of a security interest without our prior written consent to be obtained first on each occasion;
- 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 our prior written consent to be obtained first on each occasion;
- immediately advise us 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.
10.4 The Parties 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 Customer 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 Customer 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 us, the Customer waives their right to receive a verification statement in accordance with section 157 of the PPSA.
10.8 The Customer must unconditionally ratify any actions taken by us under clauses 9.3 to 9.5.
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 us agreeing to supply the Materials and perform the Services, 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).
11.2 The Customer indemnifies us from and against all of our costs and disbursements including legal costs on a solicitor and own Customer basis incurred in exercising our rights under this clause.
11.3 The Customer irrevocably appoints us and each director of the Mechanic 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 not limited to, signing any document on the Customer’s behalf.
12. DEFECTS, WARRANTIES AND RETURNS, COMPETITION AND CONSUMER ACT 2010 (CCA)
12.1 The Customer the Customer must inspect the Materials on delivery and must within seven (7) days of delivery notify the Mechanic in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote for the Materials.
12.2 The Customer must notify any other alleged defect in the Materials as soon as reasonably possible after any such defect becomes evident.
12.3 Upon such notification the Customer must allow the Mechanic to inspect the Materials.
12.4 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).
12.5 The Mechanic acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
12.6 Except as expressly set out in these terms and conditions or in respect of the Non Excluded Guarantees, the Mechanic makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Materials. The Mechanic’s liability in respect of these warranties is limited to the fullest extent permitted by law.
12.7 If the Customer is a consumer within the meaning of the CCA, the Mechanic’s liability is limited to the extent permitted by section 64A of Schedule 2.
12.8 If the Mechanic is required to replace the Materials under this clause or the CCA, but is unable to do so, The Mechanic may refund any money the Customer has paid for the Materials.
12.9 If the Mechanic 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 Mechanic may refund any money the Customer has paid for the Services but only to the extent that such refund shall take into account the value of Services and Materials which have been provided to the Customer which were not defective.
12.10 If the Customer is not a consumer within the meaning of the CCA, the Mechanic’s liability for any defect or damage in the Materials is:
- limited to the value of any express warranty or warranty card provided to the Customer by the Mechanic at the Mechanic’s sole discretion;
- limited to any warranty to which the Mechanic is entitled, if the Mechanic did not manufacture the Materials;
- otherwise negated absolutely.
12.11 Subject to this clause 11, returns will only be accepted provided that:
- the Customer has complied with the provisions of clause 11.1; and
- the Mechanic agreed that the Materials are defective; and
- the Materials are returned within a reasonable time at the Customer’s cost (if that cost is not significant); and
- the Materials are returned in as close a condition to that in which they were delivered as is possible.
12.12 Notwithstanding clauses 11.1 to 11.9 but subject to the CCA, the Mechanic shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of the Customer:
- failing to properly maintain or store any Materials;
- using the Materials for any purpose other than that for which they were designed;
- continuing the use of any Materials after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
- failing to follow any instructions or guidelines provided by the Mechanic;
- fair wear and tear, any accident, or act of God.
12.13 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 Mechanic 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 Mechanic 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 11.13.
12.14 Notwithstanding anything contained in this clause if the Mechanic is required by a law to accept a return then the Mechanic will only accept a return on the conditions imposed by that law.
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 2.5% per calendar month (and such interest shall compound monthly at such a rate) after as well as before any judgment.
13.2 If the Customer owes the Mechanic any money the Customer shall indemnify the Mechanic from and against all costs and disbursements incurred by the Mechanic in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own customer basis, the Mechanic’s contract default fee, and bank dishonour fees).
13.3 Without prejudice to any other remedies the Mechanic 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 Mechanic may suspend or terminate the supply of Services and/or Materials to the Customer. The Mechanic will not be liable to the Customer for any loss or damage the Customer suffers because the Mechanic has exercised its rights under this clause.
13.4 Without prejudice to the Mechanic’s other remedies at law and/or equity, the Mechanic shall be entitled to cease undertaking any further work to provide the Services, and cancel all or any part of any order of the Customer which remains unfulfilled, and all amounts owing to the Mechanic shall, whether or not due for payment, become immediately payable if:
- any money payable to the Mechanic becomes overdue, or in the Mechanic’s opinion the Customer will be unable to make a payment when it falls due;
- the Customer 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
- a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
14. CANCELLATION BY THE MECHANIC
14.1 the Mechanic may cancel any contract to which these terms and conditions apply and cancel delivery of Materials at any time before the Materials are delivered, by giving written or verbal notice to the Customer. On giving such notice the Mechanic shall repay to the Customer any money paid by the Customer for the Materials. The Mechanic shall not be liable for any loss or damage whatsoever arising from such cancellation.
14.2 In the event that the Customer cancels delivery of Materials the Customer shall be liable for any and all loss incurred (whether direct or indirect) by the Mechanic as a direct result of the cancellation (including, but not limited to, any loss of profits).
14.3 Cancellation of orders for Materials made to the Customer’s specifications, or for non-stock list items, will definitely not be accepted once production has commenced, or an order has been placed.
14.4 the Mechanic may cancel any contract to which these terms and conditions apply for the Mechanic to provide Services, prior to completion of the Services , by giving written or verbal notice of its intention to the Customer. On giving such notice to the Customer, in accordance with this clause, the Customer shall be liable for the Mechanic’s costs up until the time at which notice of the cancellation is given, on a pro rata basis.
15. PRIVACY ACT 1988
15.1 The Customer agrees for the Mechanic to obtain from a credit reporting agency a credit report containing personal credit information about the Customer in relation to credit provided by the Mechanic.
15.2 The Customer agrees that the Mechanic 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:
- to assess an application by the Customer; and/or
- to notify other credit providers of a default by the Customer; and/or
- 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
- to assess the credit worthiness of the Customer.
15.3 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.
15.4 The Customer consents to the Mechanic being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
15.5 The Customer agrees that personal credit information provided may be used and retained by the Mechanic for the following purposes (and for other purposes as shall be agreed between the Customer and Mechanic or required by law from time to time):
- the provision of Materials; and/or
- the marketing of Materials by THE MECHANIC, its agents or distributors; and/or
- analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to the provision of Materials; and/or
- processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Customer; and/or
- enabling the daily operation of Customer’s account and/or the collection of amounts outstanding in the Customer’s account in relation to the Materials.
15.6 the Mechanic may give information about the Customer to a credit reporting agency for the following purposes:
- to obtain a consumer credit report about the Customer;
- allow the credit reporting agency to create or maintain a credit information file containing information about the Customer.
15.7 The information given to the credit reporting agency may include:
- personal particulars (the Customer’s name, sex, address, previous addresses, date of birth, name of employer and driver’s licence number);
- details concerning the Customer’s application for credit or commercial credit and the amount requested;
- advice that the Mechanic is a current credit provider to the Customer;
- 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;
- 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;
- information that, in the opinion of THE MECHANIC, the Customer has committed a serious credit infringement (that is, fraudulently or shown an intention not to comply with the Customer’s credit obligations);
- advice that cheques drawn by the Customer for one hundred dollars ($100) or more, have been dishonoured more than once;
- that credit provided to the Customer by the Mechanic has been paid or otherwise discharged.
16. UNPAID SELLER’S RIGHTS
16.1 Where the Customer has left any Motor Vehicle or Motor Vehicle Component with the Mechanic for repair, modification, exchange or for the Mechanic to perform any other service in relation to the Motor Vehicle or Motor Vehicle Component and the Mechanic has not received or been tendered the whole of any moneys owing to it by the Customer, the mechanic shall have, until all moneys owing to the Mechanic are paid:
- a lien on the Motor Vehicle or Motor Vehicle Component; and
- 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.
16.2 The lien of the Mechanic shall continue despite the commencement of proceedings, or judgment for any moneys owing to the Mechanic having been obtained against the Customer.
17. VARIATION OR AMENDMENTS TO THESE TERMS AND CONDITIONS
17.1 The Customer may, request a variation to these terms and conditions, prior to the Mechanic undertaking to provide the Services or Materials.
17.2 the Mechanic may, at its discretion, accept or reject the Customer’s request to vary these terms and conditions.
18. INTELLECTUAL PROPERTY
18.1 Where the Mechanic has designed, drawn or developed Materials for the Customer, then the copyright in any designs and drawings and documents shall remain the property of the Mechanic.
18.2 The Customer warrants that all designs, specifications or instructions given to the Mechanic will not cause the Mechanic to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify the Mechanic against any action taken by a third party against the Mechanic in respect of any such infringement.
20.1 The failure by the Mechanic to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect The Mechanic 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.
20.2 These terms and conditions and any contract to which they apply shall be governed by the laws of Western Australia, and are subject to the jurisdiction of the courts in Western Australia.
20.3 Subject to clause 11 the Mechanic 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 Mechanic of these terms and conditions (alternatively the Mechanic’s liability shall be limited to damages which under no circumstances shall exceed the price of the Materials or the total of the Charges).
20.4 The Customer shall not be entitled to set off against, or deduct from the Charges, any Charges, amounts or sums owed or claimed to be owed to the Customer by the Mechanic nor to withhold payment of any invoice because part of that invoice is in dispute.
20.5 the Mechanic may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.
20.6 The Customer agrees that the Mechanic may amend these terms and conditions at any time. If the Mechanic makes a change to these terms and conditions, then that change will take effect from the date on which the Mechanic 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 Mechanic to provide Services or Materials to the Customer.
20.7 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.
20.8 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.