1. ACCEPTANCE
1.1 Parties: These Terms are between John Dale Motors Pty Limited as the trustee for the A and M Walters Family Trust (ABN 30 565 469 756), its successors and assignees (referred to as “we” and “us”) and you, the person, organisation or entity described in the Quote (referred to as “you”). These Terms apply to all Services provided by us to you.
1.2 Acceptance: You have requested the Services set out in the Quote. You accept these Terms by:
(a) signing and returning the Quote;
(b) confirming in writing including by email that you accept the Quote;
(c) accepting the Quote online;
(d) instructing us to proceed with the Services;
(e) making part or full payment for the Services; or
(f) agreeing to a verbal cost estimate.
1.3 You agree that these Terms form the agreement under which we will supply Services to you. Please read these Terms carefully. Please contact us if you have any questions. Purchasing Services from us indicates that you have had sufficient opportunity to read these Terms and contact us if needed, that you have read, accepted and will comply with these Terms.
1.4 Deposit: If we require a Deposit, we will not book in a time or commence performing the Services until you have paid the Deposit or the first instalment of our Fee.
2. SERVICES
2.1 We agree to perform the Services with due care and skill.
2.2 We may provide the Services to you using our employees, contractors and third party providers, and they are included in these Terms.
2.3 When you engage third parties that are neither our employees nor contractors we have directly appointed, their services or products fall under your oversight. We bear no liability for the outcomes or quality of the services or products provided by these independent third parties.
2.4 Timeframe: Any period of time allowed for completion of Services is an estimate only and is subject to change. To the extent permitted by law, we will not be liable for any delays. Both Parties must take all reasonable steps to minimise any delay to the Services.
3. PRICE, INVOICING AND PAYMENT
3.1 Estimates: If the Quote states that the Fees and Expenses are an estimate only, you acknowledge that the final Fees and Expenses may be more or less than the estimated amounts and are subject to change based on a detailed inspection of the Vehicle. We will inform you of any material variation to Fees and/or Expenses no later than 7 days after it has become apparent that there is a material variation.
3.2 You agree to pay us the amounts set out in our Quote, including any Deposit required. All amounts are stated in Australian dollars. All amounts exclude Australian GST (where applicable) unless stated otherwise. Payment may be made by way of payment methods as set out in our Quote/invoices when purchasing our Services.
3.3 You agree to pay our Fees in accordance with the payment schedule set out by us and to pay any invoices by the payment date set out on the invoice.
3.4 If you do not pay by the payment date, we may cease to provide the Services to you until we receive payment. The Fees must be paid in full before the Vehicle can leave our premises.
3.5 We may charge interest at a rate equal to the Reserve Bank of Australia’s cash rate from time to time plus 8% per annum, calculated daily and compounding monthly, on any amounts unpaid after the payment date.
3.6 If invoices are unpaid after the payment date, we have the right to engage debt collection services for the collection of unpaid and undisputed debts, and the right to commence legal proceedings for any outstanding amounts owed to us at your expense. You acknowledge and agree that you are liable for and will pay all costs including debt collection, commission, solicitor’s fees and any out-of-pocket expense, and that you will indemnify us for the full amount of our legal and debt recovery costs.
3.7 We reserve the right to report bad debts to independent credit data agencies.
4. VARIATIONS
4.1 The Fee and Services can only be varied by agreement between us, including by telephone.
4.2 We may at any time inform you of the need for us to perform a Variation.
4.3 If you request a Variation to the Services, we have discretion as to whether we make the Variation.
4.4 Variations will not invalidate these Terms or be regarded as a repudiation of these Terms by us.
4.5 If in our reasonable opinion a Variation requires additional time to perform the Services, then we will amend the term of this Agreement after consultation with you.
4.6 If we need to charge an additional fee for a Variation (Additional Fee), then we will provide a quote for the Additional Fee to you prior to commencing performance of the Variation.
If:
(a) you accept the quote for the Additional Fee then these Terms are amended to incorporate the Variation but otherwise remain the same; or
(b) you do not accept the quote for the Additional Fee where we informed you of the need for us to perform a Variation then we may in our discretion cease work and terminate these Terms immediately.
4.7 If we are unable to accommodate a Variation requested by you, we may consult with you to find a feasible adjustment. Should a mutually agreeable solution not be reached, we reserve the right to invoice for Services performed to date and terminate these Terms.
5. WARRANTY
5.1 We may provide you with a 1 year or 20,000km, whichever is sooner, warranty for our workmanship from the date of practical completion (Our Warranty).
5.2 Our Warranty shall only be valid on the Services as carried out by us. Using a third party or tampering/modifying our work will void all warranty.
5.3 Failure to use and properly maintain the Vehicle normally for its intended purpose and in accordance with manufacturer’s guidelines will void Our Warranty in our sole discretion.
5.4 Our Warranty does not cover any incidental loss or damage, including towing or loss of profits.
5.5 If you claim on Our Warranty you must provide the original invoice for proof of Services.
5.6 All materials and associated fittings, as well as any specified items installed by us, must be serviced annually by us. Failure to do so shall void Our Warranty. It is your sole responsibility to arrange appointments.
5.7 We can assess any failure of components within Our Warranty period to determine whether the failure has occurred due to misuse or wear and tear. In such circumstances where misuse occurs, all warranties on that failed component will be voided.
5.8 For products not manufactured by us, the warranty shall be the current warranty provided by the manufacturer. We shall be under no liability whatsoever, except for the express conditions as detailed and stipulated in the manufacturer’s warranty in respect of products not manufactured by us. You will be liable for our labour costs to replace the part/s.
5.9 We take no responsibility for materials supplied by you.
5.10 Our Services come with guarantees that cannot be excluded under Australian Consumer Law. For major failures with the Services, you are entitled to:
(a) cancel these Terms with us, and
(b) a refund for the unused portion, or reimbursement for its reduced value.
5.11 You are also entitled to be reimbursed for any other reasonably foreseeable loss or damage.
5.12 If the failure does not amount to a major failure, you are entitled to have problems with the Services rectified in a reasonable time and, if this is not done, to cancel the Terms and obtain a refund for the unused portion of the Terms.
5.13 Warranty limitations apply to all non-standard applications or partial repairs.
5.14 Our Warranty is not transferrable.
6. INSURANCE
6.1 We will provide insurance cover on any and all property whilst in our possession, including but not limited to driving the Vehicle for the purposes of providing the Services. We will not drive the Vehicle for personal use. A copy of our insurance policy will be provided upon request to you.
6.2 To the extent permitted by law, upon collection of the Vehicle, we accept no responsibility for any damage to the Vehicle and/or your property once the Vehicle has left our possession, other than due to our negligent act or omission.
7. YOUR OBLIGATIONS AND WARRANTIES
7.1 You warrant that:
(a) you own the Vehicle and are entitled to engage us to provide the Services;
(b) you authorise us to operate the Vehicle while in our possession;
(c) there are no legal restrictions preventing you from agreeing to these Terms;
(d) you will cooperate with us, and provide us with information that is reasonably necessary to enable us to perform the Services as requested from time to time, in a timely manner;
(e) the information you provide to us is true, correct and complete, including but not limited to all Vehicle books and records;
(f) you will not infringe any third party rights in working with us and receiving the Services;
(g) you will inform us if you have reasonable concerns relating to our provision of Services under these Terms, with the aim that the Parties will use all reasonable efforts to resolve your concerns;
(h) where we must cease/suspend the Services due to any overdue invoices or where you fail to collect the Vehicle within a reasonable time once we have provided you with a notice of completion, we may charge an additional Storage Fee. This will be invoiced to you and payable prior to collection of the Vehicle;
(i) you are responsible for obtaining any consents, licences and permissions from other parties necessary for the Services to be provided, at your cost, and for providing us with the necessary consents, licences and permissions;
(j) You accept that we have the right to impose stand down charges and recover additional costs incurred where work is delayed by reason not in our control and where are unable to reasonably reschedule services; and
(k) you will not employ, canvass, solicit, entice, induce or attempt to employ our employees or contractors.
8. CONFIDENTIAL INFORMATION
8.1 We, including our employees and contractors, agree not to disclose your Confidential Information to any third party (other than where necessary, to third party suppliers, or as required by law); to use all reasonable endeavours to protect your Confidential Information from any unauthorised disclosure; and only to use your Confidential Information for the purpose for which it was disclosed by you, and not for any other purpose.
8.2 This clause will survive the termination of these Terms.
9. FEEDBACK AND DISPUTE RESOLUTION
9.1 If there is a dispute between the Parties in relation to these Terms, the Parties agree to the following dispute resolution procedure:
(a) The complainant must tell the respondent in writing, the nature of the dispute, what outcome the complainant wants and what action the complainant thinks will settle the dispute. The Parties agree to meet in good faith to seek to resolve the dispute by agreement between them at an initial meeting.
(b) If the Parties cannot agree how to resolve the dispute at that initial meeting, any Party may refer the matter to a mediator. If the Parties cannot agree on who the mediator should be, the complainant will ask the Law Society of New South Wales to appoint a mediator. The mediator will decide the time and place for mediation. The Parties must attend the mediation in good faith, to seek to resolve the dispute and will be equally responsible for the costs of the mediator.
9.2 Any attempts made by the Parties to resolve a dispute pursuant to this clause are without prejudice to other rights or entitlements of the Parties under these Terms, by law or in equity.
10. RETENTION OF TITLE
10.1 Title in any goods we supply to you does not pass to you until they have been paid for in full, even if we have installed them.
10.2 To the extent allowed by law, if fail to make a due payment, we may take reasonable action to remove the goods without us being liable to you for damage to the premises or the goods caused by such removal.
11. TERM AND TERMINATION
11.1 If either Party commits a remediable breach of these Terms and does not remedy the breach at its cost within a reasonable time after receiving written notice of the breach from the other Party, then the Parties agree to engage in the dispute resolution process set out in clause 9.2 in the first instance. If the dispute is not resolved after following that process, then either Party may terminate these Terms at any time upon written notice to the other Party.
11.2 We may terminate these Terms immediately upon written notice to you, if:
(a) you commit a non-remediable breach of these Terms;
(b) you fail to provide us with clear or timely instructions to enable us to provide the Services;
(c) we, acting reasonably, consider that our working relationship has broken down including a loss of confidence and trust;
(d) for any other reason outside our control which has the effect of compromising our ability to perform the Services within the required timeframe; or
(e) you fail to pay an invoice by the due date.
11.3 You may terminate these Terms immediately upon written notice to us if:
(a) we commit a non-remediable breach of these Terms; or
(b) you, acting reasonably, consider that our working relationship has broken down including a loss of confidence or trust.
11.4 On termination of these Terms in accordance with clause 11.2 or clause 11.3 you agree that any Deposit or payments made are not refundable to you to the extent of all Services provided prior to termination, including Services which have been performed and have not yet been invoiced to you.
11.5 On termination of these Terms, you agree to promptly return (where possible), or delete or destroy (where not possible to return), our Confidential Information and Intellectual Property, and/or documents containing or relating to our Confidential Information and/or Intellectual Property.
11.6 On termination of these Terms, we agree to promptly return (where possible), or delete or destroy (where not possible to return), your Confidential Information and Intellectual Property, and/or documents containing or relating to your Confidential Information and/or Intellectual Property.
11.7 On completion of the Services, we will retain your documents related to the provision of the Services to you (including copies) as required by law or regulatory requirements. Your express or implied agreement to these Terms constitutes your authority for us to retain or destroy documents in accordance with the statutory periods, or on termination of these Terms.
11.8 The accrued rights, obligations and remedies of the Parties are not affected by the termination of these Terms.
12. LIMITATION OF LIABILITY AND DISCLAIMERS
12.1 Service Standard: We will provide the Services with due care and skill, the Services will be fit for the purpose that we advertise, and we will supply the Services within a reasonable time.
12.2 ACL: Certain legislation including the Australian Consumer Law (ACL) in the Competition and Consumer Act 2010 (Cth) and similar consumer protection laws and regulations may confer you with rights, warranties, guarantees and remedies relating to the provision of Services by us to you which cannot be excluded, restricted or modified (Statutory Rights).
12.3 Statutory Rights: Nothing in these Terms excludes your Statutory Rights as a consumer under the ACL. You agree that our liability for the Services is governed solely by the ACL and these Terms.
12.4 Warranties: Except where otherwise mentioned in these Terms and expect for your Statutory Rights, we exclude all express and implied warranties representations and guarantees and all material and work is provided to you without warranties, representations and guarantees of any kind.
12.5 Delay: Where the provision of Services depends on your information or response, we have no liability for a failure to perform the Services, where it is affected by your delay in response or supply of incomplete or incorrect information.
12.6 Referrals: We may provide you with contact details of third-party specialists. This is not a recommendation by us for you to seek their advice or to use their services. We make no representation or warranty about the third-party advice or provision of services, and we disclaim all responsibility and liability for the third party advice or provision of services, or their failure to advise or provide services.
12.7 Availability: To the extent permitted by law, we exclude liability for:
(a) the Services being unavailable; and
(b) any Claims for loss of profits, revenue, production, opportunity, access to markets, goodwill, reputation or any loss or damage relating to business interruption or otherwise, suffered by you or made against you, arising out of or in connection with your inability to access or use the Services or the late supply of Services, even if we were expressly advised of the likelihood of such loss or damage.
12.8 Disclaimers: To the extent permitted by law we disclaim all responsibility and liability for:
(a) products or services you purchase from a third party;
(b) damage caused to your property other than due to our negligent act or omission;
(c) any damage to paint work other than due to our negligent act or omission;
(d) any pre-existing defects to your property;
(e) where the defect is a result of alteration, accident, misuse, abuse or neglect, or unsafe or inappropriate driving practices;
(f) the successful outcome of any car detailing where your property is beyond repair;
(g) driveline failure on vehicles that have engine performance modifications;
(h) any Additional Fees incurred from the original quoted amount. Fees and Expenses are an estimate only and are subject to change;
(i) incorrect or contaminated fuels, additives, lubricants or coolants have been used, or if the vehicle has been used in any motor sport competition or trial;
(j) if you store data in your vehicle (such as music or phone numbers), during the process of repair some or all of your stored data may be lost. Please ensure that you have saved this data elsewhere prior to repair;
(k) 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;
(l) we will only be responsible for damage to parts that we have worked on, installed or touched during the Services, (e.g. If we only worked on the front end and something was damaged on the backend after we worked on the Vehicle, we take no responsibility);
(m) any damage to the Vehicle, your property or any person or persons caused by your use of the Vehicle and the property.
12.9 Limitation: To the extent permitted by law, our total liability arising out of or in connection with the Services, however arising, including under contract, tort including negligence, in equity, under statute or otherwise, is limited to us re-supplying the Services to you, or, at our option, us refunding to you the amount you have paid us for the Services to which your claim relates. Our total liability to you for all damages in connection with the Services will not exceed the price paid by you under these Terms and pursuant to the Quote for the 12 month period prior to the act which gave rise to the liability, or one hundred dollars (AUD$100) if no such payments have been made.
12.10 This clause will survive the termination of these Terms.
13. INDEMNITY
13.1 You are liable for and agree to indemnify, defend and hold us harmless for and against any and all Claims, liabilities, suits, actions and expenses, including costs of litigation and reasonable legal costs, resulting directly or indirectly from:
(a) any information provided by you to us that was not accurate, up to date or complete or was misleading or a misrepresentation;
(b) your breach of these Terms;
(c) any misuse of the Services by you, your employees, contractors or agents; and
(d) your breach of any law or third party rights.
13.2 We are liable for and agree to indemnify, defend and hold harmless for and against any and all Claims, liabilities, suits, actions and expenses, including costs of litigation and reasonable legal costs, resulting directly or indirectly from:
(a) any information provided to you by us that was not accurate, up to date or complete or was misleading or a representation;
(b) our breach of these Terms;
(c) any defect or omission in the Services from or by us, our employees, contractors or agents;
(d) our breach of any law or third party rights in connection with our provision of the Services to you.
13.3 The Parties agree to co-operate with each other (at their own expense) in the handling of disputes, complaints, investigations or litigation that arises as a result of these Terms.
13.4 This clause will survive the termination of these Terms.
14. GENERAL
14.1 Privacy: We agree to comply with the legal requirements of the Australian Privacy Principles as set out in the Privacy Act 1988 (Cth) and any other applicable legislation or privacy guidelines.
14.2 GST: If and when applicable, GST payable on the Fee for the Services will be set out on our invoices. You agree to pay the GST amount at the same time as you pay the Fee.
14.3 Severance: To the extent permitted by law, if any provision (or part of it) under these Terms is held to be unenforceable or invalid in any jurisdiction, then it will be interpreted as narrowly as necessary to allow it to be enforceable or valid. If a provision (or part of it) under these Terms cannot be interpreted as narrowly as necessary to allow it to be enforceable or valid, then the provision (or part of it) must be severed from these Terms and the remaining provisions (and remaining part of the provision) of these Terms are valid and enforceable.
14.4 Force Majeure: We will not be liable for any delay or failure to perform our obligations under these Terms if such delay is due to any circumstance beyond our reasonable control, including but not limited to restrictions caused by a global pandemic.
14.5 Jurisdiction & Applicable Law: These terms are governed by the laws of New South Wales and the Commonwealth of Australia. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in New South Wales.
14.6 Entire Agreement: These Terms and any document expressly referred to in them represent the entire agreement between the Parties and supersede any prior agreement, understanding or arrangement between the Parties, whether oral or in writing.
14.7 Special Conditions: The Special Conditions will prevail to the extent of any inconsistency with these Terms.
15. DEFINITIONSJOHN DALE MOTORS TERMS AND CONDITIONS
15.1 Business Day means a day which is not a Saturday, Sunday or bank or public holiday in New South Wales, Australia.
15.2 Claim/Claims includes a claim, notice, demand, right, entitlement, action, proceeding, litigation, prosecution, arbitration, investigation, judgment, award, damage, loss, cost, expense or liability however arising, whether present, unascertained, immediate, future or contingent, whether based in contract, tort or statute, whether indirect, incidental, special, consequential and/or incidental, and whether involving a third party or a Party to the Terms or otherwise.
15.3 Confidential Information includes confidential information about you, your credit card or payment details, and the business, structure, programs, processes, methods, operating procedures, activities, products and services, trade secrets, know how, financial, accounting, marketing and technical information, customer and supplier lists (including prospective customer and supplier information), ideas concepts, technology, and other information of either Party whether or not such information is reduced to a tangible form or marked in writing as "confidential".
15.4 Deposit (if any) set out in the Quote.
15.5 Expenses (if any) are set out in the Quote.
15.6 Fees are as notified to you or as set out in the Quote.
15.7 GST means GST as defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) as amended from time to time or any replacement or other relevant legislation and regulations.
15.8 Party and Parties means a party or parties to these Terms.
15.9 Quote means the quote or estimate to which these Terms are attached or form part of, any verbal quote or estimate provided by us to you for Services, or where no quote has been provided to you this will be based off our Schedule Of Fees.
15.10 Schedule Of Fees means the schedule of fees set out online or as otherwise provided to you and as amended from time to time.
15.11 Services are set out in the Quote.
15.12 Special Conditions means the special conditions, if any, detailed in the Quote.
15.13 Storage Fee means a flat rate of $35 per day for the storage of any vehicle after we have notified you to collect the Vehicle.
15.14 Terms means these terms and conditions.
15.15 Variation means amended or additional services, including but not limited to changes to the Quote, Services, or Fees.
17.16 Vehicle means the vehicle detailed in the Quote and/or service form.
