Bradys Truck And Automotive ABN 84002 495 298
Terms and conditions for the supply of Carriage Services
- These terms and conditions apply to all transactions between the Consignor and the Carrier relating to the provision of Carriage Services, including all estimates, contracts and variations. These terms and conditions take precedence over terms and conditions contained in any document of the Consignor or elsewhere.
- The variation or waiver of a provision of these terms or a party’s consent to a departure from a provision by another party is ineffective unless in writing signed by the parties.
- The Carrier may amend any details in an estimate by notice in writing to the Consignor. Such amended details supersede any relevant prior detail in dealings between the parties.
- The Consignor may request that its order be varied by providing a request in writing to the Carrier. A request for a variation must be agreed to in writing by the Carrier in order to have effect.
- If the Consignor wishes to vary its requirements after an estimate has been prepared or after the placement of an order, the Carrier reserves the right to vary the estimate to include any additional charge in respect of any extra costs incurred or additional work carried out due to the variation, in accordance with its then current charge rates. A revised estimate issued by the Carrier in respect of the requested variation supersedes the original estimate. If the revised estimate only specifies additional work, the estimate for that additional work will be in addition to the immediately preceding estimates for the Carriage Services.
Carriage of Goods
- All Goods are carried and all storage and other Carriage Services are performed by the Carrier subject only to these conditions and the Carrier reserves the right to refuse the carriage of Goods for any person, corporation, company or other entity and the carriage of any class of Goods at its discretion.
- The Carrier may have the Goods carried, stored or otherwise handled by any servant or agent or sub-contractor of the Carrier and the Consignor hereby authorises any deviation from the usual route or manner of cartage or method or place of storage of Goods which may in the absolute discretion of the Carrier be deemed desirable or necessary in the circumstances.
- The Carrier will be responsible for the loading and unloading of the Goods.
- The Consignor warrants that:
- The Consignor has authority on behalf of all persons owning or having an interest in the Goods to enter into these terms and conditions on their behalf.
- The details of the description, items, pallet space, quantity, weight, quality, value and measurements supplied by the Consignor are correct.
- That the Goods are packed in a manner adequate to withstand the ordinary risk of carriage having regard to their nature the Consignor has correctly declared the weight of the Goods.
- The Consignor has complied with all laws and regulations relating to the nature, packaging, labelling or cartage of any Dangerous Goods.
- The Carrier is authorised to deliver the Goods at the address nominated by the Consignor for that purpose.
- If the nominated place of delivery should be unattended or if delivery cannot otherwise be effected by the Carrier or the Consignor otherwise fails to take delivery of the Goods, the Carrier may at its option deposit the Goods at that place (which will be conclusively deemed to be due delivery under this agreement) or store the Goods. If the Goods are stored by the Carrier the Consignor will pay or indemnify the Carrier for all costs and expenses incurred in or about such storage.
- The Carrier will be entitled to remove the Goods from a place of storage to another place of storage at its discretion.
- The Consignor must give 24 hours’ notice to the Carrier of its intention to remove Goods from storage.
- The Carrier will not be obliged to deliver any Goods except to the Consignor or to a person authorised in writing by the Consignor to receive the Goods without:
- a direction in writing from the Consignor;
- payment of all amounts due by the Consignor to the Carrier on any account whatsoever.
- If the Carrier accepts Dangerous Goods for Carriage Services, such Goods must be accompanied by a declaration disclosing the nature of such Goods.
- The Consignor will indemnify the Carrier against all loss (including consequential loss) damage or injury arising out of the carriage of any Dangerous Goods whether declared or not and whether or not the Consignor was aware of the nature of the Goods.
- If in the opinion of the Carrier, at any time the Goods are liable to become dangerous or flammable or damaging, the Goods may be destroyed, disposed of, abandoned or rendered harmless without compensation to the Consignor and the Carrier is entitled to charge for the carriage of the Goods.
- The Carrier may immediately terminate the terms and conditions by giving notice in writing to the Consignor if:
- an Insolvency Event occurs in relation to the Consignor;
- the Consignor breaches these terms and conditions in a material way and either:
- 7 days have elapsed since the Carrier gave the Consignor notice of the breach and required the Consignor to remedy the breach, and the Consignor has failed to remedy the breach; or
- the breach is not capable of being remedied.
Charges and payment
- The Consignor shall be liable to the Carrier for all freight and charges as soon as the Goods are loaded and despatched and whether the Goods are delivered or not and whether damaged or otherwise.
- The Consignor is not entitled to retain any money owing to the Carrier notwithstanding any default or alleged default by the Carrier of these terms and conditions, including (but not limited to) the supply of allegedly faulty or defective goods, provision of Carriage Services to an inadequate standard or a delay in the provision of Carriage Services. Nothing in this clause affects the Consignor’s rights for any alleged failure of a guarantee under the Australian Consumer Law.
- The Consignor is to pay the Carrier on demand interest at the rate of 10% per annum on all overdue amounts owed by the Consignor to the Carrier, calculated daily.
- All costs and expenses associated with collecting overdue amounts, including (but not limited to) legal fees and internal costs and expenses of the Carrier, are to be paid by the Consignor as a debt due and payable under the terms and conditions.
- The Consignor and the Carrier 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 (Cth) and any other applicable legislation governing GST.
- The Carrier may require the Consignor to pay additional charges in respect of costs incurred by the Carrier as a result of reliance on inadequate or incorrect information or material provided by the Consignor or information or material supplied later than required by the Carrier in order for it to provide the Carriage Services within the specified time frame (if any).
Agency and assignment
- The Consignor agrees that the Carrier may at any time appoint or engage an agent to perform an obligation of the Carrier arising out of or pursuant to these terms and conditions.
- The Carrier 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 and conditions provided that the assignee agrees to assume any duties and obligations of the Carrier owed to the Consignor under these terms and conditions.
- The Consignor is not to assign, or purport to assign, any of its obligations or rights under these terms and conditions without the prior written consent of the Carrier.
- The Consignor must have insurance for the Goods for their full replacement value and for the storage at the premises with any rights of subrogation of the relevant insurer waived as against the Carrier and the Carrier’s insurers.
- The Carrier reserves the right to retain a lien over all Goods delivered to the Carrier for all monies due to the Carrier, including all charges for storage and preservation of Goods and other expenses in relation to the carriage services.
- If any amounts due to the Carrier are outstanding for more than 90 days, the Carrier may give notice to the Consignor of its intention to sell any or all of the Goods in the Carrier’s possession within a specified time by auction, or otherwise, at the sole discretion of the Carrier and the proceeds applied towards satisfaction of the amount of charges outstanding under this agreement and the disposal costs and return the balance of the proceeds to the Consignor and the Consignor shall not take exception upon the ground that any price realised is less than market value or upon any other grounds.
- The parties agree that the lien attaches to Goods when the Goods are accepted by the Carrier for carriage.
- The Consignor grants the Carrier a Security Interest in respect of the Goods as security for payment for all charges due to the Carrier in respect of any services tendered by the Carrier and any charges or amounts that may become due under the agreement.
Exclusions and limitation of liability
- The Goods are and at all times shall be at the risk of the Consignor and the owner of the Goods.
- The Consignor undertakes to indemnify the Carrier in respect of any liability whatsoever in respect of the Goods to any person (other than the Consignor) who claims to have, who has, or who in the future may have any interest in the Goods or any part of the Goods.
- The Carrier gives no warranty in relation to the Carriage Services provided or supplied. Under no circumstances is the Carrier or any of its Carriers liable or responsible in any way to the Consignor 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 the provision of the Carriage Services including timeliness of deliveries, failure of performance, error, omission, defect, including, without limitation, for and in relation to any of the following:
- any Carriage Services supplied to the Consignor; or
- any delay in supply of the Goods or Carriage Services; or
- any loss of or damage to, deterioration, evaporation or contamination of Goods; or
- any failure to supply the Carriage Services.
- To the fullest extent permissible at law, the Carrier 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 Carriage Services, or otherwise arising out of the provision of the Carriage Services, whether based on terms and conditions, negligence, strict liability or otherwise, even if the Carrier has been advised of the possibility of damages.
- The Consignor acknowledges that the Goods or Carriage Services are not for personal, domestic or household purposes.
- The Australian Consumer Law may give to the Consignor certain guarantees. Where liability for breach of any such guarantee can be limited, the Carrier’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 Carriage Services to the supply of Carriage Services again or cost of re-supplying the Carriage Services again.
- The Consignor indemnifies and keeps indemnified the Carrier, its servants and agents in respect of any claim or demand made or action commenced by any person (including, but not limited to, the Consignor) against the Carrier or, for which the Carrier is liable, in connection with any loss arising from or incidental to the provision of Carriage Services, any order or the subject matter of these terms and conditions including, but not limited to any legal costs incurred by the Carrier in relation to meeting any claim or demand or any party/party legal costs for which the Carrier is liable in connection with any such claim or demand. This provision remains in force after the termination of these terms and conditions.
- If circumstances beyond the Carrier’s control prevent or hinder its provision of the Carriage Services, the Carrier is free from any obligation to provide the Carriage Services while those circumstances continue. The Carrier may elect to terminate this agreement or keep the agreement on foot until such circumstances have ceased.
- Circumstances beyond the Carrier’s control include, but are not limited to, unavailability of materials or components, strikes, lockouts, riots, natural disasters, fire, war, acts of God, Government decrees, proclamations or orders, transport difficulties and failures or malfunctions of computers or other information technology systems.
- If a dispute arises between the Consignor and the Carrier, the following procedure applies:
(a) 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.
(b) 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 clause.
(c) a party must not oppose any application for a stay of any legal proceedings that may be issued in respect of a dispute pending the completion or termination of the procedure set out in this clause.
- If a dispute is notified, the dispute must immediately be referred to the parties’ respective senior management. Those representatives must endeavour to resolve the dispute as soon as possible and in any event within 5 business days (or other period as agreed).
- 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 Disputes Centre (ADC) before having recourse to arbitration or litigation. The mediation must be conducted in accordance with the ADC Guidelines for Commercial Mediation which are operating at the time the matter is referred to ADC. 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 and conditions. This clause survives termination of these terms and conditions.
- 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 and conditions.
- 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.
- These terms and conditions are governed by the laws of the state where the Carrier’s registered office is situated and each party irrevocably submits to the non-exclusive jurisdiction of the courts of such state.
- These terms and conditions and any schedule of fees and charges and written variations agreed to in writing by the Carrier represent the whole agreement between the parties relating to the subject matter of these terms.
- These terms and conditions supersede all oral and written negotiations and communications by and on behalf of either of the parties.
- In entering into these terms and conditions, the Consignor has not relied on any warranty, representation or statement, whether oral or written, made by the Carrier or any of its employees or agents relating to or in connection with the subject matter of these terms and conditions.
- If any provision of these terms and conditions at any time is or becomes void, voidable or unenforceable, the remaining provisions will continue to have full force and effect.
- A party’s failure or delay to exercise a power or right does not operate as a waiver of that power or right.
- 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 the estimate (or as varied) and delivered personally or sent by pre-paid mail to the address of the addressee specified in the relevant estimate or sent by e-mail to the e-mail address of the addressee specified in the relevant estimate.
- 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 e-mail before 4pm 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.
- 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.
In these terms and conditions:
Additional charge means:
(a) fees or charges for additional work performed at the Consignor’s request or reasonably required as a result of the Consignor’s conduct, calculated in accordance with the Carrier’s then current prices; and/or
(b) expenses incurred by the Carrier, at the Consignor’s request or reasonably required as a result of the Consignor’s conduct.
Business day means a day that is not a Saturday, Sunday or public holiday in the place where the Carriage Services are principally being carried out.
Carriage Services means the Carriage Services undertaken by the Carrier or on behalf of the Carrier in respect of the Goods, including, loading, unloading and storage of Goods.
Carrier means Brady’s Trucks and Automotive (ABN 84 002 495 298) and includes the Carrier’s agents and permitted assigns.
Consignor means the person identified on a schedule of fees and charges or order as the Consignor and includes the Consignor’s agents and permitted assigns.
Dangerous Goods means Goods that are or may become noxious, dangerous, flammable or damaging or that are or may become liable to damage any property whatsoever.
Estimate means a written description of the Carriage Services to be provided and the Carrier’s charges for the performance of the required work.
Goods means the property accepted by the Carrier and includes any container, packaging, pallets or storing device supplied to the Carrier.
Insolvency Event in relation to a person means:
- a receiver, liquidator, provisional liquidator or administrator is appointed to that person’s undertakings or assets;
- if that person is not solvent, within the meaning of s.95A of the Corporations Act 2001;
- if that person enters into a scheme of arrangement (other than for the purpose of restructuring); and
- any of those things occur in relation to a related body corporate within the meaning of the Corporations Act 2001 of that person.
Loss includes, but is not limited to, costs (including, but not limited to, party to party legal costs and the Carrier’s legal costs), expenses, lost profits, award of damages, personal injury and property damage.
Security Interest has the same meaning as under the Personal Property Securities Act 2009.
In these terms and conditions, unless the context otherwise requires:
(a) a reference to writing includes email and other communication established through the Carrier’s website (if any);
(b) the singular includes the plural and vice versa;
(c) a reference to a clause is a reference to a clause of these terms and conditions;
(d) a reference to a party to these terms and conditions 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 and conditions;
(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.
Repair Agreement Terms and Conditions
Brady’s Truck and Automotive. ABN 84 002 495 298
- DEFINITION AND INTERPRETATION In these terms and conditions, the following definitions and interpretations apply:- a. “Brady’s Truck and Automotive” means JL & MN Brady ABN 84 002 495 298 trading at Brady’s Truck and Automotive. b. The “Customer” means the individual or entity purchasing and/or receiving Goods sold and/or Services supplied by Brady’s Truck and Automotive. c. “Customer’s Land” means the Customer’s right, title or interest in any real estate (whether presently held or in the future which may be held and wherever located) and whether owned by the Customer legally or beneficially or held by the Customer as a trustee of any trust. d. Estimated Delivery Date” means, with regards to any Goods or Services, a date agreed between Brady’s Truck and Automotive and the Customer or the date stipulated by Brady’s Truck and Automotive of which the Goods are proposed to be delivered and/or the Services provided. e. “Dispute” means a dispute initiated under clause 28. f. “Goods” means the Goods supplied or to be supplied by Brady’s Truck and Automotive to the Customer including Goods manufactured at the Customer’s request. g. “GST” means the Goods and Services Tax mandated by the A New Tax System (Goods and Services Tax) Act 1999 (Commonwealth) and words defined in that Act have the same means where used in these terms and conditions. h. “Heavy Vehicle” means a vehicle over 4.5GVM or such other figure as may be advised by National heavy vehicle association The National Heavy Vehicle Regulator (NHVR) , Services (or such other body as may replace or perform the same or similar functions as NHVRs). i. “Services” means Services supplied or to be supplied by Brady’s Truck and Automotive to the Customer including but not limited to panel beating, spray painting, mechanical work, electrical work, windscreen repair and/or replacement, the transportation of the Customer’s vehicle or vehicles at the Customer’s request or any other work carried out as requested by the Customer. j. “monies” means monies now or in the future actually or potentially owing by the Customer to Brady’s Truck and Automotive and includes any part of those monies and includes all interest accruals and costs expenses and disbursements. k. “work” means the provision of any Goods and/or Services. l. In the interpretation of this Agreement- (i) if a Customer is comprised of more than one person or entity then “Customer” means each of those persons or entities collectively and individually and the provisions of these terms and conditions binds each of those persons jointly and severely; (ii) A reference to the singular includes the plural and vice versa; (iii) A reference to a gender denotes any other gender and a person denotes an individual, corporation or other entity, as is applicable, and for clarity, includes a trust. 2. TERMS AND CONDITIONS Brady’s Truck and Automotive and the Customer agree that these terms and conditions shall apply to supply of all Goods and/or Services provided by Brady’s Truck and Automotive to the Customer and that these terms and conditions supersede any prior arrangements, prior offer, dealings or trade usages or any other terms previously used or communicated to the Customer by Brady’s Truck and Automotive. The Customer agrees and acknowledges that the Customer is bound by these terms and conditions (notwithstanding that the Customer may not have signed these terms and conditions) when the Customer authorises or approves Brady’s Truck and Automotive to carry out work, whether that work is the supply of Goods and/or the performance of Services. Brady’s Truck and Automotive is bound by the Motor Vehicle Insurance and Repair Industry Code of Conduct (VIC). Any estimate of cost or price may be based upon E-MTA and / or NTAR guidelines and times (at the option of Brady’s Truck and Automotive or any other guidelines and times as Brady’s Truck and Automotive may, from time to time use). If a Customer, insurer or assessor wants to use any other methodology that needs to be approved and agreed by Brady’s Truck and Automotive. 3. QUOTATIONS If Brady’s Truck and Automotive provides or has provided any quotation to a Customer for work (“Quotation”) then it is agreed: a. These terms and conditions apply to the Quotation. b. The prices detailed in the Quotation shall be Brady’s Truck and Automotive current prices as at the date of the Quotation and the price payable for the Goods and/or Services. c. Any Quotation provided by Brady’s Truck and Automotive is an estimate based on an external inspection only (unless the Quotation expressly provides otherwise). d. If Brady’s Truck and Automotive, upon further investigation, ascertain there is additional damage or work required or the Customer requests any additional work, then the Customer will be notified in respect of any additional costs and expense for supplying any additional Goods and/or Services required and Brady’s Truck and Automotive shall carry out the required work after confirmation (in writing or verbally) from the Customer as to any additional expense. Brady’s Truck and Automotive will provide a revised Quotation, which upon acceptance shall become the Quotation. Such acceptance can be in writing or verbally by the Customer. The Customer will be required to sign the revised Quotation prior to collection of the vehicle. e. A Quotation will detail any charges for delivery of the Goods and/or Services. f. Any Quotation will remain valid for acceptance by the Customer for the period of 30 days or 1 calendar month (subject to changes in manufacturer’s prices for motor vehicle parts) after the date of Quotation. 4. ORDERS If the Customer requests Brady’s Truck and Automotive to provide or undertake any work without a Quotation (“Order”) then: a. The Order is subject to acceptance in writing by Brady’s Truck and Automotive. b. The price payable for the work required for any Order shall be Brady’s Truck and Automotive current price as at the date of Brady’s Truck and Automotive accepting the Order. c. Brady’s Truck and Automotive may require a deposit to be paid by the Customer at the time an Order is made. The deposit amount is the amount notified by Brady’s Truck and Automotive to the Customer (in writing or verbally). d. Brady’s Truck and Automotive reserves the right to cancel any Order if any payment required is not made at the time of the Order by the Customer. 5. VARIATION OR CANCELLATION Once a Customer has accepted a Quotation or Brady’s Truck and Automotive has accepted an Order from the Customer:- a. Subject to clause 3 regarding Quotations, there can be no change in the scope or nature of the work to be undertaken by Brady’s Truck and Automotive unless agreed to by both parties in writing. b. If the Customer decides to cancel a Quotation or Order, the Customer agrees to pay and/or compensate Brady’s Truck and Automotive for any loss, damage or expense incurred by Brady’s Truck and Automotive in relation to the cancellation of any Quotation or Order, including, without limitation storage fees, salvage and towing fees (if applicable). 6. CHARGES AND TAXES a. Unless otherwise explicitly stated, the price of any work excludes all freight, transportation, shipping, insurance, packaging, crating or casing, storage handling, demurrage, delivery, export or similar charges and any tax or impost that may be payable or chargeable in respect of the undertaking of any work. The Customer agrees to pay and indemnify Brady’s Truck and Automotive in respect of any proper charges or taxes imposed. If Brady’s Truck and Automotive agrees in writing that the price includes any applicable charges or taxes, the price is subject to adjustment for mandated increases in any of those charges or taxes after the date of the Quotation or acceptance of any Order. b. The Customer hereby agrees to indemnify and hold harmless Brady’s Truck and Automotive in respect of any liability for any taxes, levies, duties and assessments that may be payable in respect of the work undertaken. For clarity, the price for undertaking the work excludes the cost of installation, commissioning or any training requested by the Customer . 7. PAYMENT a. The Customer must pay for the work undertaken prior to the collection of the Goods or vehicle or as otherwise may be agreed in writing between Brady’s Truck and Automotive and the Customer. b. If the Customer is insured for any work required, the Customer still remains primarily liable for all monies due to Brady’s Truck and Automotive. c. If the Customer requires additional work to be undertaken (over and above what may be approved by the Customer’s insurer or by the Customer previously) then the Customer is liable to pay all monies due to Brady’s Truck and Automotive for such additional work. d. If payment is not made when required, the Customer shall be liable to pay interest to Brady’s Truck and Automotive. The interest rate shall be the interest rate chargeable by the bankers for Brady’s Truck and Automotive on overdrafts less than $50,000.00 (and if more than one rate the highest rate). A certificate from the bankers for Brady’s Truck and Automotive in respect of any such interest rate shall be conclusive evidence. Payment of interest does not limit, negate or waive any other rights and entitlements that Brady’s Truck and Automotive may have arising out of non-payment or late payment by the Customer. e. The Customer is not entitled to deduct or set off any amounts that may be owed by Brady’s Truck and Automotive to the Customer or to withhold any payments due to Brady’s Truck and Automotive. f. Brady’s Truck and Automotive is registered for Goods and Services tax (GST). Without limiting clause 6, the Customer is liable to reimburse Brady’s Truck and Automotive for any GST that may be payable by Brady’s Truck and Automotive on any supply made pursuant to these terms and conditions to the Customer. Brady’s Truck and Automotive shall provide a Tax Invoice to the Customer in respect of any monies due. g. Payment can be made by cash, debit card, bank cheque (not personal cheques) or credit card (AMEX and Diner’s Club cards are not accepted). If using a credit card, there will be a 2% transaction fee (or such other fee as may be legally authorised). Bank transfers are also accepted, but must be cleared before the vehicle is released to the Customer. 8. DELIVERY AND RETURNS a. Brady’s Truck and Automotive shall use its reasonable endeavours to deliver or perform the work on or before the stipulated Estimated Delivery Date, however: (i) Any Estimated Delivery Date is subject to extension due to any delay caused by strikes, lockouts, wharf breakdowns, accidents, delays in transport, fire, force majeure, the nature and extent of the damage or the work required being more extensive than envisaged or any other cause beyond the reasonable control of Brady’s Truck and Automotive ; and (ii) Brady’s Truck and Automotive shall not be liable for any loss, damage or other liability (whether in contract, tort and whether in law or in equity or otherwise) directly or indirectly arising from the work not being undertaken or delivered by the Estimated Delivery Date, for any reason. b. The Customer will be liable for all costs relating to delivery. c. Brady’s Truck and Automotive, may with the agreement of the Customer, undertake and deliver the work to the Customer in instalments or periodically. In that event, Brady’s Truck and Automotive may separately invoice the Customer for payment of each delivery instalment. d. The Customer is not entitled to return any Goods and/or Services except with the express prior written approval of Brady’s Truck and Automotive. Any return of Goods and/or Services may, at the discretion of Brady’s Truck and Automotive, be subject to 20% handling/restocking fee. e. Any Goods which have been manufactured at the request of the Customer, or altered specifically by the Customer, cannot be returned on the ground that the Customer has changed their mind in respect of the Goods. 9. PROPERTY RISK a. The Goods are at the risk (including for loss, damage or deterioration) of the Customer from the time of delivery of the Goods. For these purposes, the carrier shall be deemed to be the agent of the Customer. b. Any property of the Customer in the possession or control of Brady’s Truck and Automotive is at the risk of the Customer. 10. WARRANTIES a. Brady’s Truck and Automotive warrants the work will be undertaken with all due care and skill and in a professional and workmanlike manner and according to generally acceptable industry standards and practices. b. To the extent permitted by law, all other express or implied warranties, representations, terms and conditions other than those expressly contained in the Quotation, Order and/or and these terms and conditions, are expressly excluded. c. Where there is a conflict between any term of these terms and conditions and any term of any Quotation or Order the terms of these terms and conditions will prevail. 11. LIABILITY The Customer agrees that: a. The Customer must satisfy themselves as to the truth or accuracy of and may not rely upon any technical or other advised information provided by on behalf of Brady’s Truck and Automotive in connection with the work to be undertaken. b. Except to the extent prohibited by law and subject to any warranty provided by Brady’s Truck and Automotive the only remedy against Brady’s Truck and Automotive for any loss, damage or liability (whether in contract, tort or pursuant to law or equity or otherwise) in connection with these terms and conditions and/or undertaking the work and/or the failure by Brady’s Truck and Automotive to undertake the work or part of the work shall be limited to Brady’s Truck and Automotive replacing or repairing any Goods supplied and/or re-performing the Services, in the discretion of Brady’s Truck and Automotive . c. Brady’s Truck and Automotive will otherwise have no liability to the Customer (whether in contract, tort or pursuant to law or equity or otherwise) and without limitation, Brady’s Truck and Automotive specifically excludes any liability to the Customer or to any third party for loss of profit or any other consequential, indirect, incidental or special loss, damages, costs or expenses. d. Brady’s Truck and Automotive is not liable for any damage or loss due to user generated data being lost, changed or altered arising out of any action taken by or work undertaken by Brady’s Truck and Automotive pursuant to these terms and conditions. e. Nothing in these terms and conditions will operate to exclude, restrict or modify the application of any provision of the Competition and Consumer Act 2010 or the Consumer Law, which cannot be excluded, restricted or modified. 12. DEFECTIVE GOODS AND SERVICES a. Within ten (10) days after delivery of the Goods and/or provision of the Services by Brady’s Truck and Automotive, the Customer shall complete any inspection or testing it deems necessary to confirm the Goods and/or the Services comply with these terms and conditions or any Order and the Customer shall notify Brady’s Truck and Automotive in writing to the extent to which the Goods and/or Services do not comply with the terms and conditions or any Order. b. The Customer must not use the Goods and/or Services (other than to the extent reasonably necessary for inspection and testing) before the Customer completes any inspection and testing and satisfies itself that the Goods and/or Services comply with these terms and conditions or any Order or, if the Customer advises Brady’s Truck and Automotive in writing that the Goods and/or Services do not comply with the terms and conditions or any Order, until Brady’s Truck and Automotive has had a reasonably opportunity to inspect and test the Goods and/or Services after Brady’s Truck and Automotive receives such notice. c. If the Customer does not comply with clauses 12 a. or b. the Customer shall be taken to have unconditionally accepted the Goods and/or Services. 13. CHARGING CLAUSE a. For the purposes of securing payment of all monies which are or may become payable by the Customer to Brady’s Truck and Automotive, the Customer hereby charges, as legal and/or beneficial owner or as trustee of any trust, in favour of Brady’s Truck and Automotive all the Customer’s right title and interest in land (whether presently or in the future held) with the payment of all monies due to Brady’s Truck and Automotive. The Customer acknowledges that Brady’s Truck and Automotive may register a caveat or caveats over the Customer’s land in respect of the charge granted. b. If the Customer is a trustee of any trust or becomes a trustee of a trust then: (i) The Customer is bound by these terms and conditions in the Customer’s personal capacity as well as in the Customer’s capacity as trustee and charges the land held in the name of the Customer as trustee.
(ii) Warrants to Brady’s Truck and Automotive that the Customer has all authority and power under the relevant trust instrument to enter into the contractual arrangements with Brady’s Truck and Automotive and to charge any land held by the Customer as trustee in accordance with these terms and conditions. c. Upon demand by Brady’s Truck and Automotive, the Customer agrees to immediately execute a mortgage or other instrument in terms satisfactory to Brady’s Truck and Automotive to secure all indebtedness owed by the Customer to Brady’s Truck and Automotive. 14. DEFAULT, INSOLVENCY AND TERMINATION If the Customer: a. Is in breach or default in respect of these terms and conditions including, without limitation, an unreasonable refusal to accept any Goods and/or Services or failing to pay for any work in accordance with these terms and conditions; or b. Becomes insolvent, commits an act of bankruptcy or insolvency, has a bankruptcy petition presented against it, becomes bankrupt, becomes subject to or bound by any arrangement assignment, composition or moratorium of debts with its creditors, comes under official management, receivership, liquidation, administration, a winding up order is made or become subject of other external administration, then all monies owing by the Customer to Brady’s Truck and Automotive shall immediately become due and payable, without limitation to any other rights and entitlements that Brady’s Truck and Automotive may have. c. If the Customer is in breach or default of these terms and conditions, without limitation, Brady’s Truck and Automotive may:- (i) Immediately terminate the supply of the Goods and/or Services; (ii) Refuse, suspend or withhold supply of any further Goods and/or Services; (iii) Enter upon any land or premises (personally, by its employees agents or other authorised persons) in the possession or control of the Customer and use reasonable force for the purposes of retaking possession of any Goods (title to which has not passed to the Customer). Brady’s Truck and Automotive, in that event, shall have no liability to the Customer whether in trespass, negligence, payment of damages, compensation or otherwise; or (iv) Terminate any credit arrangement with a Customer. 15. LIEN a. In addition to any other remedy or right that Brady’s Truck and Automotive may have, the Customer acknowledges that Brady’s Truck and Automotive has the right to a lien (under general law and/or equity or pursuant to statute) over all property of the Customer in the control or in the possession of Brady’s Truck and Automotive including, without limitation, the Customer’s vehicle and/or all items of any description in or attached to the Customer’s vehicle, to secure payment of any or all amounts outstanding. b. The Customer agrees and acknowledges that Brady’s Truck and Automotive may, in its discretion, exercise its lien in respect of any due and unpaid amounts owing by the Customer to Brady’s Truck and Automotive and may retain the Customer’s vehicle and/or any items of any description in or attached to the Customer’s vehicle until payment of all amounts outstanding by the Customer to Brady’s Truck and Automotive have been paid. c. Brady’s Truck and Automotive may exercise all and any rights that it has (under the general law and/or equity or pursuant to statute) in respect of any property of the Customer in the control or in the possession of Brady’s Truck and Automotive, for the purposes of seeking payment of all outstanding amounts due by the Customer to Brady’s Truck and Automotive. 16. STORAGE AND SALVAGE CHARGES a. If the Customer’s vehicle is not collected by the Customer within seven (7) days of the work being completed, Brady’s Truck and Automotive is entitled to charge a storage fee. The storage fee charged is the fee notified by Brady’s Truck and Automotive , from time to time, and may be displayed on the website of Brady’s Truck and Automotive , displayed in the office area of the premises of Brady’s Truck and Automotive or advised to the Customer either in writing or verbally. b. Any storage fee is payable when the vehicle is collected by the Customer. c. Salvage and towing fees may also be payable. Any salvage or towing fee/s charged is the fee notified by Brady’s Truck and Automotive , from time to time, and may be displayed on the website of Brady’s Truck and Automotive , displayed in the office area of the premises of Brady’s Truck and Automotive or advised to the Customer either in writing or verbally. 17. ABANDONMNET a. If any amounts due by the Customer to Brady’s Truck and Automotive have not been paid within six (6) calendar months of the due date then Brady’s Truck and Automotive may, subject to any requirements of the general law and/or equity or pursuant to statute, sell any property in the control or possession of Brady’s Truck and Automotive, including the Customer’s vehicle and/or any items of any description in or attached to the Customer’s vehicle therein. Brady’s Truck and Automotive shall undertake reasonable attempts to contact the Customer in respect of the amounts outstanding. Any sale by Brady’s Truck and Automotive shall comply with applicable legislation in respect of the disposal of uncollected or abandoned goods and vehicles. b. In the event that Brady’s Truck and Automotive sells the Customer’s property, Brady’s Truck and Automotive will apply the proceeds, in the first instance to the satisfaction of the amounts outstanding by the Customer and the costs of exercising the right of sale with any balance of the proceeds of sale to be returned, where possible, to the Customer. 18. AUTHORITY IN RESPECT OF THE VEHICLE a. The Customer authorises Brady’s Truck and Automotive to do every act matter and thing that Brady’s Truck and Automotive considers desirable or necessary to undertake the works in respect of the Customer’s vehicle including, but not limited to:- (i) Entering the Customer’s vehicle. (ii) Test driving the Customer’s vehicle (including the driving the Customer’s vehicle to location/s outside the premises controlled by Brady’s Truck and Automotive). (iii) Undertaking any diagnostic testing as Brady’s Truck and Automotive considers appropriate. b. The Customer authorises and agrees that Brady’s Truck and Automotive may sub-contract any part of the work required pursuant to these terms and conditions. c. Brady’s Truck and Automotive accepts no liability for damage that occurs or is sustained to the Customer’s property including any motor vehicle and/or goods of the Customer when in the possession of any sub-contractor engaged by Brady’s Truck and Automotive. d. Brady’s Truck and Automotive accepts no liability or responsibility for property of the Customer or contents of any motor vehicle that is left in the Customer’s vehicle while the vehicle is in the possession or control of Brady’s Truck and Automotive or otherwise. 19. INSPECTION OF VEHICLE When the Customer leaves a motor vehicle with Brady’s Truck and Automotive, Brady’s Truck and Automotive will prepare a diagrammatic depiction of the vehicle identifying the areas of damage, both to the interior and exterior. Such depiction shall be agreed to by the Customer prior to any work being undertaken. 20. REGISTRATION OF VEHICLE a. The Customer’s vehicle may be driven on public roads as part of any required test drive, specialised repairs or for the purposes of the required work being undertaken. b. It is the Customer’s responsibility to ensure that all vehicles repaired by Brady’s Truck and Automotive are currently registered with the relevant registration authority and have the applicable third party insurance cover and that such registration and insurance cover will subsist during the time the vehicle is in the possession or control of Brady’s Truck and Automotive . If the Customer’s vehicle is found to be or becomes unregistered and/or uninsured, the Customer will be notified and work may not be carried out or ceased on the vehicle until such registration and/or third party insurance cover is current. c. If the Customer’s vehicle is driven by an employee or agent of or other person authorised by Brady’s Truck and Automotive or a contractor engaged by Brady’s Truck and Automotive , Brady’s Truck and Automotive shall require that any such person has a current, valid and applicable driver’s licence. d. Without limiting any other provision of these terms and conditions, the Customer releases and indemnifies Brady’s Truck and Automotive (and its employees, agents, contractors and other persons authorised by it) from all and any claims (including legal expenses), demands, actions and proceedings that may be brought by the Customer (or any other person) against Brady’s Truck and Automotive (or any of its employees, agents, contractors and other persons authorised by it) due to or arising out of any act or omission of Brady’s Truck and Automotive (or any of its employees, agents, contractors and other persons authorised by it) causing loss or damage due to or arising from the use or driving of the Customer’s vehicle on any public road or from natural disasters or due to the Customer’s vehicle not being registered or not having third party insurance cover. 21. HEAVY VEHICLES & TRAILERS,HORSE FLOATS, (A)If the Customer’s vehicle is a Heavy Vehicle, if any wheels on the Heavy Vehicle are removed for the purposes of undertaking work, Brady’s Truck and Automotive requires the Customer to monitor the wheels removed after any works have been performed. The wheels removed will be marked on the attached document headed “Truck Wheel Nut Information”. Brady’s Truck and Automotive recommends that the Customer check the tension of any wheel nuts removed after travelling approximately 50 kilometres.
(B) If the Trailer, horse float or any other Towable vehicle are uncoupled/disconnected for the purposes of undertaking work by Brady’s truck and Automotive , the Customer is fully responsible for the correct and safe re- connection of the trailer, towable vehicle to the towing vehicle including all hitches and necessary air couplings ,lighting plugs , landing legs ,jockey wheels etc. before moving the vehicle 22. PARTS REMOVED AND “DASH CAM” a. If any parts are removed from the Customer’s vehicle, those parts will, upon such removal, become the property of Brady’s Truck and Automotive and Brady’s Truck and Automotive are entitled to retain possession of those parts. b. If the Customer’s vehicle has a “dash cam”, Brady’s Truck and Automotive requires that such camera be turned off before any works are undertaken. 23. CHILD SEATS & RESTRAINTS a. If a Customer presents a vehicle to Brady’s Truck and Automotive that includes a child seat or a restraint, if Brady’s Truck and Automotive removes that child seat or restraint for any reason in performing any work pursuant to these terms and conditions, Brady’s Truck and Automotive is not obligated to re-install the child seat and restraint for the Customer. It is the Customer’s responsibility to have that child seat and restraint re-installed, as the Customer sees fit. b. Brady’s Truck and Automotive bears no responsibility or liability for removing a child seat and restraint from the Customer’s motor vehicle. c. Brady’s Truck and Automotive will not be liable for the cost of having the child seat and any restraint re-installed in the Customer’s motor vehicle. 24. FORCE MAJEURE a. If, for any reason beyond the reasonable control of Brady’s Truck and Automotive, it is unable to perform, in whole or in part, any of the work agreed to or any other obligation under these terms and conditions, Brady’s Truck and Automotive will be relieved of its obligations to the extent and for the period that it is unable to so perform, and will not be liable to the Customer in respect of any such inability in any way whatsoever. b. If a delay or failure by Brady’s Truck and Automotive to perform its obligations due a force majeure event exceeds seven (7) days, Brady’s Truck and Automotive may immediately terminate the agreed arrangements or such part or parts as remain unperformed by giving notice to the Customer.
- In the event of such termination under clause 24.b., the Customer must pay Brady’s Truck and Automotive all fees and charges incurred prior to the effective date of termination for the work performed.
- GOVERNING LAWS The laws of Victoria shall apply to the terms and conditions and the Customer submits to the exclusive jurisdiction of the courts of Victoria and all courts of appeal therefrom. 26. GENERAL a. Brady’s Truck and Automotive may, in its discretion, exercise or not exercise any right or entitlement pursuant to these terms and conditions or may insist or not insist upon strict performance of any provisions of these terms and conditions. Failure by Brady’s Truck and Automotive to exercise any right or entitlement or to insist upon strict performance does not operate as a waiver of any particular term and conditions, unless Brady’s Truck and Automotive agrees to such waiver in writing. b. If Brady’s Truck and Automotive exercises a partial right or entitlement, that does not preclude any further or whole exercise of that right or entitlement. c. If any part of these terms and conditions or any related document is or becomes void or enforceable, it is agreed that part is severed so that the remaining parts which are not void or enforceable remain in full force and effect. 27. NOTICES a. Any notice required to be given by the Customer to Brady’s Truck and Automotive pursuant to these terms and conditions may be delivered to Brady’s Truck and Automotive personally, to the current address at 11 Dawson Street, Sale, Victoria 3850or sent by post to Brady’s Truck and Automotive at the postal address 11 Dawson Street, Sale, Victoria 3850(or such other address as Brady’s Truck and Automotive may, from time to time, nominate. b. Notices will be deemed to be delivered when received by Brady’s Truck and Automotive. c. Any notice required to be given by Brady’s Truck and Automotive to the Customer pursuant to these terms and conditions may be delivered by post to the Customer’s last known address (to which the postal service will apply) or by facsimile to the Customer’s last known facsimile number and will be taken to be received when a successful facsimile transmission is notified to the facsimile machine sending the transmission or by email to the last known email address of the Customer (which will be taken to be received within 24 hours of Brady’s Truck and Automotive sending the email to the email address provided by the Customer). 28. DISPUTE RESOLUTION a. A Party must not commence any court or arbitration proceedings relating to a Dispute unless it first complies with this clause except where a Party seeks urgent interlocutory relief. a. A Party claiming that a Dispute has arisen under these terms and conditions must give written notice to the other Party giving reasonable details of the nature of the Dispute (Notice). b. On receipt of that Notice by the other Party, the Parties must endeavour in good faith and within seven (7) days to resolve the Dispute. c. If the Parties do not agree within seven (7) days of receipt of the Notice (or any further period agreed by them) as to: (i) the dispute resolution technique and the procedures to be adopted; (ii) the timetable for all steps in those procedures; and (iii) the selection and compensation of the independent person required for such technique, then the Parties must mediate the Dispute in accordance with the Mediation Rules of the Law Society of Victoria. The Parties must request the President of the Motor Trader’s Association of Victoria (or if that position and/or association no longer exits, the chief executive officer of any body or association that has replaced the Motor Trader’s Association of Victoria or performs the same or similar functions) or the President’s nominee (or as appropriate) to select the Mediator and determine the Mediator’s remuneration. AUSTRALIAN CONSUMER LAW – REPAIR NOTICES WARNING ADVICE FOR USER GENERATED DATA Please ensure that ALL USER GENERATED OR PERSONAL INFORMATION stored on any vehicle device capable of storage has been backed up or copied to avoid any loss of information due to vehicle repairs. Such user generated data may include music stored in on-board media systems, files stored in on-board computers, GPS/mapping settings, telephone contacts and pre-set numbers, driver pre-recorded settings for seats, mirror, and steering wheels etc. REFURBISHED GOODS OR PARTS Goods presented for repair may be replaced by Refurbished Goods of the same type rather than being repaired. Refurbished parts may be used to repair the Goods. Any refurbished Goods used by Brady’s Truck and Automotive will be identified in any Quotation or Order and described as one of the following (exchange, used, reconditioned). Your acceptance of any Quotation or Order will act as notification and authority to use any such refurbished Goods. Insurers must notify their Customers if any refurbished Goods are to be used in the repair process. MANDATORY REPORTING Individual supplies are responsible for reporting incidents where consumer Goods have been associated with a death or serious injury or illness to any person. Broadly there are two triggers to the reporting requirements for supplies, both of which must be present before a supplier is required to report (see relevant sections of Australia Consumer Law).