DEFINITIONS AND INTERPRETATIONS
- Auto Edge Automotive repair number is MRB1745
- Air con authorisation number is ARC AU17051
Customer means any person to or for whom Auto Edge provides Services, including (where the context permits) the Owner of the Vehicle.
Customer Instructions means the express or implied instructions from the Customer to provide Services.
Goods means all or any part of the goods supplied to the Customer (including automotive parts, tyres, oils, and lubricants) as part of the Services provided.
Law means Australian Law.
Notice means a notice in writing given, in the case of Auto Edge, to Waynes Pfingst of Auto Edge and in the case of the Customer or Owner, to the address provided by the Customer or Owner at or before the time of the Services.
Owner means the owner of the Vehicle to or in respect of which Auto Edge provides any Services and any other person who has or may acquire any interest in the Vehicle.
Parties means the parties to the Contract incorporating these Terms.
Person includes individuals, partnerships, groups, companies or any other legal entity.
Price means the total price payable for or in relation to the Services, and includes (without limiting the generality of the foregoing) Taxes.
Services means services of any kind relating to the repair, maintenance, refitting, improvement, inspection, testing, storage, transport, handling or delivery of the Vehicle and include (without limiting the generality of the foregoing) the supply, installation and/or fitting of Goods.
Taxes means all statutory or other imposts, levies or charges on or in relation to the Services or the Goods, including (without limiting the generality of the foregoing) custom duties, levies, charges, value-added taxes and goods and services taxes.
Terms means the provisions of this contract.
Vehicle means a Vehicle of any description, including (without limiting the generality of the foregoing) motorbikes, cars, vans, utilities, buses, trucks and prime movers as well as all the Vehicle’s component parts.
Writing includes a telegram, telex, facsimile, and email.
- Where the context requires, the singular includes the plural and vice versa.
- Headings are for ease of reference only and are not to be used to interpret the Terms.
- References to ‘$’ herein are to Australian dollars.
Any services provided by Auto Edge, whether gratuitous or otherwise, will be subject to these Terms unless:
- Auto Edge contracts in writing with the Customer on alternative terms and conditions; or
- any provision in these Terms is contrary to any mandatory applicable law relating to the services undertaken by Auto Edge on behalf of the Customer.
If clause 2.1 applies, the alternative terms and conditions or mandatory applicable law will be paramount and will prevail only to the extent of any inconsistency with these Terms. These Terms will otherwise continue to be in full effect.
AUTO EDGE – GENERAL TERMS
Auto Edge will undertake the tasks necessary to provide the contracted Services to the Customer within the time specified in the Customer Instructions and agreed to in writing by Auto Edge or, failing that, within a reasonable time. Where the time for performance and/or delivery is agreed in writing, it is only an estimate and not a guarantee and Auto Edge shall not be liable for any delay in that respect. Auto Edge may by notice to the Customer or Owner, at its sole discretion and at any time, refuse to provide any Services in relation to any Vehicle and where it does so, shall not incur any liability to the Customer, Owner or any other Person. Without limiting the generality of the foregoing, Auto Edge may refuse to provide any services where:
- Customer Instructions are unclear or ambiguous.
- the Customer Instructions conflict with the wishes of the Owner of the Vehicle.
- Auto Edge considers it would be at risk, for whatever reason, should it perform the services. Where Auto Edge refuses to provide any services in accordance with sub-clause (b) the Customer shall be liable for all costs and outlays incurred by Auto Edge in relation to the Services provided up to the point of refusal.
Deviation from Customer’s Instructions
Subject to sub-clause (b) and (c), Auto Edge will take reasonable steps to perform the Customer’s Instructions. Auto Edge or third parties may, in their sole discretion, depart from the Customer’s Instructions in any way without prior notice to the Customer and without incurring any liability to the Customer, Owner or any other Person. Auto Edge or third parties may, in their sole discretion, depart from the usual or customary manner or method for providing any Service without prior notice to the Customer and without incurring any liability to the Customer, Owner or any other Person.
Services in Conjunction
The provision of Services may be undertaken in conjunction with the provision of Services to other Customers or third parties unless specifically agreed in writing prior to the commencement of the Service.
Special Service Offers (Packages) Terms and Conditions
From time to time Auto Edge will offer Service Packages to their clients and prospects. The prices offered are general in nature and subject to vehicle inspection and model confirmation. Should the make of the vehicle (or the vehicle condition) require additional servicing attention, parts or servicing labour, an additional fee<s> may be charged.
Auto Edge reserves the right to refuse acceptance of service package flyers entirely at their own discretion. Vehicle make, condition, time of attending the appointment or service timeframe required by the customer are all factors that may lead to service refusal.
The service package offers and savings expressed are indicative of savings that may be experienced by vehicle owners under standard conditions with standard vehicles. Pricing varies from time to time, season to season and between parts. *prices start from the advertised price and savings are up to the advertised price depending upon the make, model, and service required on the vehicle.
No insurance will be affected, except upon express instructions given in writing by the Customer, and where insurance is effected, it will be at the Customer’s cost and subject to the usual exceptions and conditions of the policies of the insurance company or underwriters taking the risk. Unless otherwise agreed in writing, Auto Edge is not under any obligation to effect separate insurance on any Vehicle but may declare it on any open or general policy held by Auto Edge. If Auto Edge agrees to arrange insurance, it will do so only as agent for the Customer.
Vehicle at Risk of Customer upon Delivery
Whether or not Auto Edge is required to deliver the Vehicle to the Customer or Owner, the Vehicle shall be at the risk of the Customer or Owner, from the time the Vehicle leaves the premises of Auto Edge, and thereafter Auto Edge shall be under no liability to the Customer or Owner in damages or otherwise for any loss, damage, delay or any cause whatsoever.
Special Delivery Arrangements
Except by prior written agreement or under the terms of a printed document signed by Auto Edge, any Customer Instructions relating to the delivery or release of Vehicles in specified circumstances are accepted by Auto Edge only as agent for the Customer if third Persons are engaged to effect compliance with the Customer Instructions.
Auto Edge accepts no liability arising from the types of arrangements referred to in sub-clause (a).
Auto Edge – Liberties
Unless specifically agreed in writing between the Customer and Auto Edge prior to the commencement of the Service, Auto Edge may provide the Service as a principal or procure it as an agent. If Auto Edge acts as a principal, it will perform, or in its own name procure the performance of the Services contracted, subject to the provisions of any specific contract for Services it may issue under Clause 2.1, failing which these Terms in general and this Clause, in particular, will apply:
- Auto Edge shall not be liable for any loss or damage whatsoever and however arising whether direct or indirect or consequential for Goods supplied, installed or fitted in the course of providing Services.
- Auto Edge reserves to itself the liberties as to the means and procedures to be followed in the provision of Services.
- Auto Edge will be deemed to have taken the Vehicle into its charge when the Vehicle has been received by Auto Edge or has been released or handed over by the Customer, or any Person acting on behalf of the Customer, to any Person acting on behalf of Auto Edge in accordance with any directions of Auto Edge for the performance of the Services.
- Auto Edge will be deemed to have delivered the Vehicle, either when it has been placed at the disposal of the Customer (or its nominee) or Notice thereof has been given to the Customer (or its nominee) at the address provided by the Customer.
If Auto Edge acts as an agent then, without prejudice to the general applicability of these Terms:
- The Customer expressly authorises Auto Edge to enter into contracts with third parties on behalf of the Customer for the Services required, unless the Customer and Auto Edge have specifically agreed otherwise.
- For the purposes of this Clause, third parties include; Auto Edge’ parent, subsidiary and/or associated companies (if any).
- Auto Edge does not make, or purport to make, any contract with the Customer for Services, but acts solely on behalf of the Customer in establishing contracts with third-party contractors for the Services required, so that a direct contractual relationship is established between the Customer and the third-party contractor.
- If there is a choice of prices according to the extent or degree of the liability assumed by third-party contractors, no declaration of value will be made, except under prior written Customer Instructions accepted by Auto Edge; nor will Auto Edge be liable to the Customer by reason of having entered into any contract on behalf of the Customer whereby the extent or degree of the liability assumed by a third party contractor is in any respect excluded or limited.
CUSTOMER’S WARRANTIES AND INDEMNITIES
The Customer warrants that the Customer is either the Owner or has the authority of the Owner to contract with Auto Edge for the services.
The Customer warrants that, unless the Customer has provided written a notice to and has obtained written agreement from Auto Edge, the Customer will not tender for Services any Vehicle which:
- is of a dangerous, damaging or unsafe nature, so as to be liable to cause damage or to be a risk to property, life or health,
- is unregistered or fails to meet any applicable standards of the West Australian Department of Transport.
The Customer warrants that all books and records furnished by or on behalf of the Customer or Owner relating to the Vehicle are complete and accurate.
Indemnity Against Claims by Third Persons
The Customer warrants that no claim or allegation will be made by any Person against any parent, subsidiary or associate company, director, servant, agent, Sub-Contractor or employee of Auto Edge (each of which will be referred to herein as an “entity”) which imposes or attempts to impose upon any such entity any liability whatsoever in connection with any Services and/or Goods (whether or not arising out of the negligence of such entity) unless Auto Edge is acting as an agent only and such entity is an independent contractor providing a Service to the Customer through the agency of Auto Edge, in which case the Customer may, upon Notice to the entity, proceed against the entity under the terms of the contract procured on its behalf from such entity by Auto Edge acting as agent only. If any claim or allegation is nevertheless brought, the Customer will on Notice by Auto Edge forthwith indemnify Auto Edge and the entity against all the consequences of the claim or allegation. Without prejudice to clause 4.4(a) and (b), unless trading directly with the Customer under its own conditions through the agency of Auto Edge, every entity will have the benefit of every right, limitation, defence and liberty of whatever kind contained in these Terms or otherwise available to Auto Edge as if such provisions were expressly for the benefit of the entity. In entering into this contract, Auto Edge does so on its own behalf and as agent and trustee for such entities. The Customer further warrants that no claim or allegation in respect of any Services or Goods, which imposes or attempts to impose upon Auto Edge any liability (whether or not arising out of negligence on the part of Auto Edge) will be made against Auto Edge by any person other than in accordance with these Terms and, if any such claim or allegation is made, the Customer will upon Notice by Auto Edge forthwith indemnify Auto Edge against all the consequences of the claim or allegation.
Acting on Customer’s Instructions
The Customer will indemnify Auto Edge and the “entity” at sub-clause 4.4(a) against all liability, loss, damage, cost and expense which arises as a result of Auto Edge acting in accordance with or reliance on the Customer’s Instructions or arising from any breach by the Customer of any warranty contained in these Terms, including the warranties at sub-clauses 4.1, 4.2 and 4.3, or from the negligence of the Customer.
Duties, Fines etc
The Customer is liable for and will indemnify Auto Edge in respect of all Taxes or other amounts of whatsoever nature for which it may be liable and for all payments, fines, costs, expenses, loss or damage however incurred or sustained by Auto Edge in connection with the Services, the Goods or the Vehicle.
Except under special arrangements previously made in writing, advice, and information which is not related to Customer Instructions accepted by Auto Edge is provided gratuitously and without liability. Advice and information, in whatever form it is given, is provided by Auto Edge for the Customer only and the Customer will upon Notice by Auto Edge forthwith indemnify Auto Edge against any liability, claim, loss, damage, cost or expense arising out of any Person relying on such advice or information.
Notice of any claim by the Customer against Auto Edge in respect of any Service must be given within 3 days of the date of provision of the Service or the date on which the Service should have been provided. In any event, Auto Edge will be discharged of all liability in respect of any Service provided for the Customer or the Owner unless suit or arbitration is brought and Notice given to Auto Edge within 9 months from the date of any event or occurrence alleged to give rise to a cause of action against Auto Edge. Exclusion of Liability To the extent permitted by law, Auto Edge will not be responsible in tort, contract or otherwise for any loss or damage, including consequential loss, loss of markets and pure economic loss, suffered by the Customer, including:
- any loss or damage to or deterioration of the Vehicle;
- any delay or failure to deliver the Vehicle to the Customer for any reason;
- the negligence, willful act or default of Auto Edge or any other Person;
- the conversion or misappropriation of the Vehicle by the willful misconduct of Auto Edge’ servants or agents,
- in accordance with sub-clause 3.7(b)(i), any loss or damage however arising from the Goods supplied, fitted or installed to the Vehicle in the course of providing Services, whether or not the loss or damage occurs in the course of performance by Auto Edge of this contract or in events which are in the contemplation of Auto Edge and/or the Customer or in events which are foreseeable by Auto Edge and/or the Customer or in events which would constitute a fundamental breach of this contract.
Limits of Liability
To the extent that liability has not been effectively excluded by clause 5.2, Auto Edge’ liability (if any and whether acting as principal or agent) will not exceed:
- in the case of claims for loss or damage to the Vehicle: $100, or
- the value of the loss or damage to the Vehicle, whichever is the lesser.
- in the case of all other claims: $100, or
- the value of the Vehicle the subject of the relevant Services, whichever is the lesser.
- in the case of a breach of warranty under the Trade Practices Act 1974 or under the Fair Trading Act 1989 (WA) (if applicable) for loss or damage caused to or suffered by the Customer: the supply of the Services again; or
- the payment of the cost of supplying the Services again to the Customer, at the election of the Customer by Notice to Auto Edge.
For the purposes of this Clause 5.3, the value of the Vehicle is its value at the place and time it is delivered to Auto Edge for the purpose of the relevant Services or at the place and time they should have been delivered.
Payment of Auto Edge’ Invoices and Other Sums
Unless Auto Edge otherwise agrees, the Customer will pay to Auto Edge the Price in cash at or prior to the collection of the Vehicle, without reduction or deferment on account of any claim, counterclaim or set off. If for whatever reason, all or any part of the Price is still unpaid 30 days after the date of the invoice, Auto Edge may by Notice add interest at 2% above the minimum lending rate of the Commonwealth Bank of Australia for any period in excess of 30 days. If Auto Edge must take action to recover the Price and/or interest in sub-clauses (a) and (b), the Customer shall also pay on Notice by Auto Edge’s its actual legal costs and outlays of and incidental to the recovery action on a full indemnity basis.
Collection of Charges
Despite the acceptance by Auto Edge of the Customer’s Instructions to collect Taxes and other expenses from any other Person, the Customer remains responsible for such expenses.
Auto Edge will have a general lien on any Vehicle or all Vehicles, as well as Goods and documents relating to any such Vehicles, in its possession, custody or control for all sums due and payable under sub-clause 6.1 from the Customer or the Owner, in respect of Services to any or all Vehicles under lien or of any earlier Services on other Vehicles, and will be entitled to sell or dispose of such Vehicles, Goods or documents as agent for and at the expense of the Customer and apply the proceeds in or towards the payment of the Price or other sums due and payable to Auto Edge under sub-clause 6.1. Upon accounting to the Customer for any balance remaining after payment of any such sum due to Auto Edge and the costs of sale and disposal, Auto Edge will be discharged from any liability whatsoever in respect of the Vehicle, Goods or documents.
Retention of Title to Goods
Notwithstanding any arrangement between the Customer and Auto Edge regarding credit, the title to and property in Goods at any time sold by Auto Edge to the Customer shall not pass to the Customer until all monies owed by the Customer to Auto Edge have been paid in full to Auto Edge and the title and property in any such Goods shall remain solely with Auto Edge until such payment as aforesaid. Pending payment of all monies due to Auto Edge, the following shall apply:
- The Customer shall hold the Goods as Trustee for Auto Edge;
- The Customer shall not mortgage or pledge the Goods to any Person;
- The Customer shall pay the proceeds of any sale of the Goods by it into a banking account separate from all other such accounts conducted by it if it does not cause those monies to be paid directly to Auto Edge;
- The Customer shall pay the monies received by it and arising from the sale of the Goods to Auto Edge immediately it receives the same notwithstanding any other arrangement between the parties as to the payment or credit and that part of such monies received by the Customer as aforesaid which is equal to the monies owing to Auto Edge for the Goods shall never become the property of the Customer and shall be held in trust by him for Auto Edge;
- The Customer shall retain records in relation to the purchase and sale of the Goods;
- Auto Edge shall be entitled at any time to take possession, by reasonable force if necessary, of the Goods and for that purpose to enter upon any property where the Goods may be.
If a cheque is tendered in payment of the purchase monies, then payment shall not be deemed to have been made until such cheque has been paid by the Customer’s bank.
LAW AND JURISDICTION
The Services undertook pursuant to and the interpretation of these Terms are governed by the law of the State of Western Australia.
Place of the Contract
This contract is deemed to have been entered into in the State of Western Australia. Alternative Dispute Resolution Should there be any dispute or claim arising out of or in relation to these Terms, the Parties shall first refer the dispute or claim to mediation. The mediation shall be conducted by a mediator approved by the Law Society of Western Australia, such mediator to be agreed by the Parties or failing agreement, to be appointed by the President of the Law Society of Western Australia. The Parties shall bear equally the cost of the mediator but shall otherwise bear their own costs of the mediation. A mediation must occur within 30 days of Notice by one party to the other of a dispute or claim. The manner in which the mediation is to occur is to be agreed between the Parties or failing agreement, by the mediator. The Parties will use their best endeavours to resolve any such dispute or claim at the mediation.
Should any mediation be unsuccessful, then any legal action arising out of or in respect of the contract and/or the interpretation thereof shall be brought only in the Courts of Perth in the State of Western Australia and the Customer irrevocably submits himself, herself or itself to the jurisdiction of the Courts of Perth in the State of Western Australia.
If any provision in the Terms is unenforceable, illegal or void, then it is severed and the rest of the Terms remain in force.
No failure by Auto Edge to exercise and no delay in exercising any right, power or remedy under these terms will operate as a waiver. Nor will any single or partial exercise by Auto Edge of any right, power or remedy preclude any other or further exercise of that or any right power or remedy.
If by reason of any fact, circumstance, matter or thing beyond the reasonable control of Auto Edge, Auto Edge is unable to perform in whole or in part any obligation under these Terms, Auto Edge shall be relieved of that obligation under this contract to the extent and for the period that it is so unable to perform and shall not be liable to the Customer in respect of such liability.