Terms of trade
This is a legal document setting out the terms and conditions upon which Ipswich City Mechanical will provide services to you. Please read it carefully and if you agree to our terms, sign at the bottom of the document on page 7.
1 Definitions and interpretation 1.1 Definitions
Additional Charge means:
(a) fees or charges for additional work performed at the Customer’s request or reasonably required as a result of the Customer’s conduct, calculated in accordance with the Supplier’s then current prices; and
(b) expenses incurred by the Supplier, at the Customer’s request or reasonably required as a result of the Customer’s conduct.
Business Day means a day that is not a Saturday, Sunday or public holiday in the place where the Services are principally being carried out or the Goods provided.
Customer means the person identified on this document or the Estimate or Order as the customer and includes the Customer’s agents and permitted assigns.
Customer Supplied Goods means any parts or products sourced and supplied by a Customer which the Supplier uses in providing Services to that Customer including but not limited to engines, powertrains, transmissions and any of their component parts.
Estimate means a written description of the Goods or Services to be provided, an estimate of the Supplier’s charges for the performance of the required work.
Goods means any parts or products, sourced and supplied by the Supplier in providing Services to the Customer.
Loss includes, but is not limited to, costs (including party to party legal costs and the Supplier’s legal costs), expenses, lost profits, award of damages, personal injury and property damage.
Services means the services to be provided by the Supplier to the Customer in accordance with the Estimate and these terms of trade.
Supplier means Ipswich City Mechanical as the supplier of Goods or Services on the Estimate and includes Ipswich City Mechanical’s agents and permitted assigns.
In these terms of trade, unless the context otherwise requires:
(a) a reference to writing includes email and other communication established through the Supplier’s website (if any);
(b) the singular includes the plural and vice versa;
(c) a reference to a clause or paragraph is a reference to a clause or paragraph of these terms of trade;
(d) a reference to a party to these terms of trade or any other document or arrangement includes that party’s executors, administrators, successors and permitted assigns;
(e) where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning;
(f) headings are for ease of reference only and do not affect the meaning or interpretation of these terms of trade; and
(g) if the date on which any act, matter or thing is to be done falls on a day which is not a Business Day, that act, matter or thing:
(i) if it involves a payment other than a payment which is due on demand must be done on the preceding Business Day; and
(ii) in all other cases, must be done on the next Business Day.
(a) These terms of trade apply to all transactions between the Customer and Supplier relating to the provision of Services. This includes all quotations, contracts and variations. These terms of trade take precedence over terms of trade contained in any document of the Customer or elsewhere.
(b) The Supplier may amend any details in the Estimate by notice in writing to the Customer. Such amended details supersede any relevant prior detail in dealings between the parties.
(a) The Supplier may provide the Customer with an Estimate. Any Estimate issued by the Supplier is valid for 30 days from the date of issue.
(b) Estimates are based upon the estimated labour cost and costs of materials available at the time of preparation of the Estimate.
(c) Estimates based on the estimated labour cost in relation to Services involving Customer Supplied Goods, assume the timely supply by the Customer of necessary material and instructions to the Supplier.
(d) An indication in the Estimate of the time frame for the provision of Services is an estimate only and is not a fixed time frame. Subject to any obligations in respect of consumer guarantees under the Australian Consumer Law, this estimate is not binding upon the Supplier.
4 Invoicing and payment
(a) Upon completion of the provision of the Services, the Supplier will issue an invoice for an amount equal to the Estimate or the balance of the Estimate outstanding, any Additional Charges and any amount not previously invoiced, or if no Estimate was provided, for an amount representing the Supplier’s charge for the work performed in completing the Order and for any Additional Charges.
(b) The amount payable by the Customer will be the amount set out in the invoice. This will be calculated as:
(i) the amount for the Goods or Services (or both) as set out in the Estimate and any Additional Charges, or
(ii) where no Estimate has been provided by the Supplier, the Supplier’s usual charges for the goods or services (or both) as described in the Order.
(c) The Customer must pay the invoice issued by the Supplier in full before the Supplier will release the Customer’s vehicle.
(d) If the invoice remains unpaid for a period of 96 hours after the completion of the provision of Services, the Supplier will charge the Customer $25.00 plus GST per day to store the Customer’s vehicle until the invoice has been paid in full.
(e) If any invoice is due but unpaid, the Supplier may withhold the provision of any further Goods or Services until overdue amounts are paid in full.
(f) Unless otherwise arranged with the Supplier, the Supplier will charge the Customer $25.00 plus GST per day to store the Customer’s vehicle if the Customer does not collect the vehicle within 96 hours of completion of the provision of Services
(g) The Supplier may in its complete discretion apply any payment received from the Customer to any amount owing by the Customer to the Supplier.
(h) The Customer is not entitled to retain any money owing to the Supplier despite any default or alleged default by the Supplier of these terms of trade, including (but not limited to) the supply of allegedly faulty or defective Goods, provision of Services to an inadequate standard or a delay in the provision of Services. Nothing in this paragraph affects the Customer’s rights for any alleged failure of a guarantee under the Australian Consumer Law.
(i) The Customer is to pay the Supplier on demand interest at the rate of 10% per year on all overdue amounts owed by the Customer to the Supplier, calculated daily.
(j) All costs and expenses associated with collecting overdue amounts, including (but not limited to) legal fees and internal costs and expenses of the Supplier, are to be paid by the Customer as a debt due and payable under these terms of trade.
(k) The Customer and the Supplier agree to comply with their obligations in relation to Goods and Services Tax (GST) under the A New Tax System (Goods and Services Tax) Act 1999 and any other applicable legislation governing GST.
5 Additional Charges
(a) For Services in relation to Customer Supplied Goods, the Supplier may require the Customer to pay Additional Charges in respect of Costs incurred by the Supplier as a result of reliance on inadequate or incorrect information or material provided by the Customer or information or material supplied later than required by the Supplier in order for it to provide the Services within the specified time frame (if any).
(b) The imposition of Additional Charges may also occur as a result of:
(i) cancellation by the Customer of an Order where cancellation results in Loss to the Supplier;
(ii) additional work required by the Customer or any other occurrence which causes the Supplier to incur costs in respect of the Customer’s Order additional to the Estimated cost.
6 Agency and assignment
(a) The Customer agrees that the Supplier may at any time appoint or engage an agent to perform an obligation of the Supplier arising out of or pursuant to these terms of trade.
(b) The Supplier has the right to assign and transfer to any person all or any of its title, estate, interest, benefit, rights, duties and obligations arising in, under or from these terms of trade provided that the assignee agrees to assume any duties and obligations of the Supplier owed to the Customer under these terms of trade.
(c) The Customer is not to assign, or purport to assign, any of its obligations or rights under these terms of trade without the prior written consent of the Supplier.
7 Exclusions and limitation of liability
(a) The Customer warrants that any Customer Supplied Goods are free from any pre-existing defects or faults and are suitable for the supply of Services as provided in the Estimate.
(b) Where the Supplier provides Services in relation to Customer Supplied Goods, the Supplier gives no warranty in the Customer Supplied Goods.
(c) To the full extent allowed by law, the Supplier’s liability for breach of any term implied into these terms of trade by any law is excluded.
(d) All information by the Supplier in relation to any Services are approximations only and, subject to any guarantees under the Australian Consumer Law, small deviations or slight variations from them which do not substantially affect the Customer’s use of the Services will not entitle the Customer to make any claim in respect of them.
(e) Where there is a pre-existing defect or fault in the Customer Supplied Goods, under no circumstances is the Supplier or any of its suppliers liable or responsible in any way to the Customer or any other person for any loss, damages, costs, expenses or other claims (including consequential damages and loss of profits or loss of revenues) as a result, direct or indirect of any defect, deficiency or discrepancy in Goods or Services. This includes failure of performance, error, omission, defect, including, without limitation, for and in relation to any of the following:
(i) any Goods or Services provided or supplied to the Customer, including any Goods and Services provided or supplied in relation to Customer Supplied Goods; or
(ii) any delay in supply of Services.
(f) Any advice, recommendation, information, assistance or service given by the Supplier in relation to Goods or Services or both, is given in good faith and is believed to be accurate, appropriate and reliable at the time it is given. It is provided without any warranty or accuracy, appropriateness or reliability. The Supplier does not accept any liability or responsibility for any Loss suffered as a result of the Customer’s reliance on such advice, recommendation, information, assistance or service.
(g) To the fullest extent permissible at law, the Supplier is not liable for any direct, indirect, punitive, incidental, special, consequential damages or any damages whatsoever including, without limitation, damages for loss of use, data or profits, arising out of or in any way connected with the provision of or failure to provide Goods or Services, or otherwise arising out of the provision of Goods or the Services, whether based on terms of trade, negligence, strict liability or otherwise, even if the Supplier has been advised of the possibility of damages.
(h) The Australian Consumer Law may give to the Customer certain guarantees. Where liability for breach of any such guarantee can be limited, the Supplier’s liability (if any) arising from any breach of those guarantees is limited with respect to the supply of Goods, to the replacement or repair of the Goods or the costs of resupply or replacement of the Goods or with respect to Services to the supply of Services again or cost of re-supplying the Services again.
(i) The guarantees with respect to Goods under the Australian Consumer Law do not apply to Customer Supplied Goods.
(a) The Customer indemnifies and keeps indemnified the Supplier, its servants and agents in respect of any claim or demand made or action commenced by any person (including, but not limited to, the Customer) against the Supplier or, for which the Supplier is liable, in connection with any Loss arising from or incidental to the provision of Goods or Services, any Order or the subject matter of these terms of trade including.
(b) This includes, but is not limited to, any legal costs incurred by the Supplier in relation to meeting any claim or demand or any party/party legal casts for which the Supplier is liable in connection with any such claim or demand.
(c) This provision remains in force after the termination of these terms of trade.
9 Dispute resolution
(a) If a dispute arises between the Customer and the Supplier, the following procedure applies:
(i) A party may give another party a notice of the dispute and the dispute must be dealt with in accordance with the procedure set out in this clause.
(ii) A party must not commence legal proceedings (except proceedings seeking interlocutory relief) in respect of a dispute unless the dispute has been referred for resolution in accordance with this paragraph.
(b) Unless otherwise agreed by the parties, any dispute that cannot be settled by negotiation between the parties or their representatives, the parties expressly agree to endeavour to settle the dispute by mediation administered by the Australian Commercial Disputes Centre (ACDC) before having recourse to arbitration or litigation. The mediation must be conducted in accordance with the ACDC Guidelines for Commercial Mediation which operate at the time the matter is referred to ACDC. The Guidelines set out the procedures to be adopted, the process of selection of the mediator and the costs involved. The terms of the Guidelines are incorporated into these terms of trade. This paragraph survives termination of these terms of trade.
(c) Notwithstanding the existence of a dispute (including the referral of the dispute to mediation), each party must continue to perform its obligations under these terms of trade.
(d) The parties must hold confidential, unless otherwise required by law or at the direction of a court of competent jurisdiction, all information relating to the subject matter of the dispute that is disclosed during or for the purposes of dispute resolution. The parties acknowledge that the purpose of any exchange of information or documents or the making of any offer of settlement pursuant to this procedure is to attempt to settle the dispute between the parties. No party may use any information or documents obtained through the dispute resolution process for any purpose other than an attempt to settle the dispute between the parties.
(a) These terms of trade are governed by the laws of the state where the Supplier’s registered office is situated and each party irrevocably submits to the non-exclusive jurisdiction of the courts of that state.
(b) These terms of trade and any Estimates and written variations agreed to in writing by the Supplier represent the whole agreement between the parties relating to the subject matter of these terms.
(c) These terms of trade supersede all oral and written negotiations and communications by and on behalf of either of the parties.
(d) In entering into these terms of trade, the Customer has not relied on any warranty, representation or statement, whether oral or written, made by the Supplier or any of its employees or agents relating to or in connection with the subject matter of these terms of trade.
(e) If any provision of these terms of trade at any time is or becomes void, voidable or unenforceable, the remaining provisions will continue to have full force and effect.
(f) A party’s failure or delay to exercise a power or right does not operate as a waiver of that power or right.
(g) A notice or other communication required or permitted to be given by one party to another must be in writing to the address shown on a Estimate (or as varied pursuant to this paragraph) and delivered personally, sent by pre-paid mail to the address of the addressee specified in the relevant Estimate; sent by fax to the fax number of the addressee specified in the relevant Estimate, with acknowledgment of receipt from the facsimile machine of the addressee or sent by email to the email address of the addressee specified in the relevant Estimate with acknowledgement of delivery.
(h) A notice or other communication is taken to have been given (unless otherwise proved) if mailed, on the second Business Day after posting; or if sent by fax or email before 4 pm one Business Day at the place of receipt, on the day it is sent and otherwise on the next Business Day at the place of receipt.
(i) A party may only change its postal or email address or fax number for service by giving notice of that change in writing to the other party.
______________________________ [Signature of Customer]
07 3812 1341 | 57 Briggs Road, Raceview QLD 4305 firstname.lastname@example.org | www.ipswichcitymechanical.com.au