- Definitions and Interpretation
In these Terms and Conditions, unless the contrary intention appears:
Account means the bank account nominated by Crossing Auto to receive payment for the services bearing Account Number: 94595 0208 and BSB: 086 136
ACL means the Australian Consumer Law as contained in Schedule 2 to the Competition and Consumer Act 2010 (Cth).
Agreement means the Customer’s agreement to engage the Services of Crossing Auto as governed by these Terms and Conditions and evidenced by the Customer instructing Crossing Auto to provide Services and/or Parts.
Consequential Loss means loss of expected savings, loss of use, loss of opportunity, loss of profit, loss of revenue, increased financing costs, loss arising from delay, or any consequential, special or indirect loss or damage, whether or not the possibility or potential extent of the loss or damage was known or foreseeable, and whether arising from a claim under indemnity, contract, tort (including negligence), statute or otherwise.
Customer means any party who engages the Services of Crossing Auto.
Crossing Auto means Crossing Auto & Towing Pty Ltd (ACN 164 518 405) trading as ‘Crossing Automotive Services & Towing’, and includes its officers, employees and agents.
Service Charges means any out of pocket expenses incurred by Crossing Auto arising out of the provision of Parts and/or Services including charges for mechanical or electrical components, freight, transportation, shipping, insurance, packaging, storage or similar charges.
GST means goods and services tax payable pursuant to the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Parts means any parts and/or materials supplied by Crossing Auto in relation to the provision of the Services, including but not limited to any mechanical or electrical parts, installations, materials, components or accessories.
Party or Parties means a party or parties to these Terms and Conditions pursuant to an Agreement.
PPSA means the Personal Property Securities Act 2009 (Cth).
Quote means any written quotation or estimate provided by Crossing Auto to a Customer for carrying out any Services.
Services means the repair, maintenance and other automotive services undertaken by Crossing Auto on behalf of a Customer and includes the supply of Parts.
Terms and Conditions mean these Terms and Conditions and includes, and should be read in conjunction with, the terms of any Quote provided to a Customer by Crossing Auto, provided that should any inconsistency exist between these Terms and Conditions and a Quote, these Terms and Conditions prevail.
Upfront Payment means payment for Services that Crossing Auto requires a Customer to pay prior to undertaking any Services.
Vehicle means any vehicle that is dealt with or otherwise comes into the possession of Crossing Auto in connection with the Services, and includes (without limiting the generality of the foregoing) motor vehicles, trailers and mobile homes.
- Acceptance of Services and Acknowledgement of Agreement
Crossing Auto agrees to provide Parts and Services in accordance with the relevant Agreement. The Customer will be deemed to have accepted the Agreement by instructing Crossing Auto to provide any Parts or carry out any Services. By accepting an Agreement the Customer acknowledges that they are bound by these Terms and Conditions.
- Provision of Parts and Services
- Crossing Auto shall provide the Services within a reasonable time once a Customer has made Upfront Payment.
- Crossing Auto will not carry out any additional Services without the prior authorisation of the relevant Customer.
- Every Customer who enters into an Agreement authorises Crossing Auto to order any Parts necessary to complete any Services on behalf of the Customer and acknowledges that they will be liable for any and all costs incurred in obtaining such Parts.
- Every Customer who enters into an Agreement authorises Crossing Auto to operate any Vehicle throughout the provision of any Services for any reasonable purpose associated with such Services, including for collecting or redelivering the applicable Vehicle. Crossing Auto is not liable for any damage to or caused by any Vehicle in its possession unless such damage is a direct result of the negligent actions of Crossing Auto.
- Customer Obligations and Warranties
The Customer, by entering into an Agreement, hereby:
- Warrants that they are legally entitled and authorised to enter into an Agreement regarding the Customer’s Vehicle;
- Warrants that all Vehicles handed over to Crossing Auto have been cleared of all personal items, cash and valuables prior to such hand over;
- Acknowledges that Crossing Auto accepts no responsibility or liability in relation to any cash or personal items that comes into its possession owing to the act or omission of the Customer (such as by failing to remove such items from a Vehicle);
- Agrees to pay any reasonable additional charges whatsoever arising out of the Services that are incurred due to the action or inaction of the Customer, including where the Customer has provided mistaken, incorrect or misleading information or instructions to Crossing Auto.
- Agrees to inspect any Vehicle upon redelivery and to notify Crossing Auto within 24 hours of provision of the Parts or completion of the Services of any damage or defective workmanship or Parts identified. If the Customer does not notify Crossing Auto of any damage or defect within this time Crossing Auto will be released from all liability with regard to the Vehicle. This does not restrict any rights the Customer may have under the ACL.
- Indemnifies Crossing Auto against any liability, loss, damage, costs (including legal costs on a party-party basis), and expenses arising out of or in connection with a default of this Agreement or the unlawful, reckless or negligent act or omission on the part of the Customer.
- The Customer agrees to pay Crossing Auto for all Parts and Services in the manner set out herein.
- Crossing Auto may issue the Customer a Quote prior to commencing any Services. The Customer acknowledges that Quotes are non-binding estimates of costs only and are subject to change, and therefore may not be relied upon by a Customer if there are inconsistencies between a Quote and a formal invoice issued subsequently.
- Unless expressly stated otherwise, all Quotes are exclusive of taxes (including GST) and Service Charges.
- All Quotes are based on a cursory inspection and are subject to change upon further inspection should any additional work be required.
- Quotes are valid for 30 days commencing on the date of their issue.
- On acceptance of a Quote, Crossing Auto will issue an invoice to the Customer and may at its sole discretion require Upfront Payment which must be paid prior to Crossing Auto undertaking any Services.
- On provision of Parts or completion of any Services an additional invoice may be issued to the Customer for any additional charges incurred for necessary parts, accessories, labour, freight, or for work performed outside the scope of the initial Quote or invoice.
- Unless otherwise agreed in writing by Crossing Auto an Upfront Payment for Services is required. Crossing Auto will only accept cash or credit card as payment for Services.
- If Crossing Auto in its sole discretion decides to waive the requirement for Upfront Payment, any invoices issued by Crossing Auto for Services are to be paid within 7 days of their date of issue and before the Vehicle may be collected. Any amount unpaid by their due date will incur interest charges in accordance with clause 6(a).
- Additional Charges
- Interest is payable on any outstanding amounts owed by a Customer to Crossing Auto from the date that any invoice becomes due and payable and accrues at a rate of 2% per day until such outstanding amount (plus accrued interest) is paid in full.
- Storage fees will be incurred at a rate of $30.00 per day if the Customer’s Vehicles or Parts are not collected within 5 days of Crossing Auto notifying the Customer that they are ready for collection or that the Services have been completed.
- Retention of Title and Charge
- Crossing Auto retains full legal and equitable title in and to any and all Parts supplied to the Customer in undertaking the Services, and the Customer hereby grants a fixed charge over any Vehicle owned by the Customer in favour of Crossing Auto to secure the repayment of any amounts owed by the Customer to Crossing Auto, , until payment in full for or in connection with the supply of the relevant Parts or Services has been received by Crossing Auto. Until payment in full has been received, the following terms apply:
- Crossing Auto is irrevocably entitled at any time and from time to time, to inspect and/or to recover and retake possession of any or all such Parts and Vehicles as are referred to in paragraph (a) above, and otherwise to exercise in relation to any or all such Parts and Vehicles, any and all of its legal and equitable rights whether those rights are as owner and/or unpaid seller or otherwise, and whether those rights are conferred by common law, contract, statute or in any other way. In order to exercise such rights and entitlement, Crossing Auto and its agents are irrevocably authorised by the Customer to enter into or upon any of the Customer’s premises or vehicles or those of any third party. The Customer agrees to obtain the consent of any such third party to such entry by Crossing Auto, and hereby agrees and undertakes to indemnify and keep indemnified Crossing Auto and its agents from and against any and all claims, costs, damages, losses or liability of whatsoever kind, arising or resulting in any way from any entry into or upon such third parties’ premises or vehicles. Crossing Auto and its agents agree to take all reasonable care in removing the Parts and/or Vehicles from such premises or vehicles but, to the fullest extent that this liability may be disclaimed by law, are and will not be liable for any damage or injury of any kind, caused to such premises or vehicle by the removal of the Parts or Vehicles, and the indemnity given above by the Customer shall extend equally to such removal.
- This reservation of title and ownership is effective and fully enforceable, regardless of whether or not the Parts have been altered from their supplied form, or commingled with other items or goods.
- The Client acknowledges that this authorisation is necessary in order to protect Crossing Auto’s business interests, and that Crossing Auto will not be responsible for any damage incurred to Vehicles or Parts arising out of any action referred to in the preceding clause 7(b) being taken.
- Personal Property Securities Act
- Capitalised terms in this clause that are not otherwise defined elsewhere in these Terms and Conditions, have the same meaning as set out in the PPSA unless the context otherwise requires and references to sections are to sections of the PPSA.
- The retention of title arrangement described in clause 7 above, constitutes the grant of a purchase money security interest by the Customer in favour of Crossing Auto in respect of all present and after-acquired Parts supplied to the Customer by Crossing Auto.
- The Customer must immediately, if so requested by Crossing Auto, sign any and all documents, provide any and all necessary information and do anything else required by Crossing Auto to ensure that Crossing Auto’s purchase money security interest is a perfected security interest.
- The Customer will not enter into any security agreement that permits any other person to have or to register any security interest in respect of the Parts until Crossing Auto has perfected its purchase money security interest.
- The parties agree to contract out of the application of sections 125, 132(3)(d), 132(4), 135, 142, 143, 129(2) and (3), 132, 133(1)(b) (as it relates to the Security Interest of the Secured Party), 134(2), 135, 136(3), (4) and (5).
- The Customer hereby waives any rights the Customer may otherwise have to receive any notice under the PPSA (including notice of a verification statement) unless that notice is mandatory.
- The Customer acknowledges and confirms that Crossing Auto has given value for its Security Interest in the Vehicle, including by its promises under this Agreement and the provision of financial accommodation to the Customer.
Subject at all times to Crossing Auto’s reservation of title and ownership, risk in relation to any Vehicle or Parts passes to the Customer on delivery of the Vehicle or Parts. Delivery of a Vehicle or Parts will be at Crossing Auto’s premises or on collection of the same by the Customer, its employees, agent or contractors. If Crossing Auto has expressly agreed to ship any Parts, risk in and to the Parts passes immediately on delivery of the Parts to the Customer’s designated place of delivery by Crossing Auto or its agent.
- The Customer acknowledges that Crossing Auto is entitled to exercise a general lien over any Vehicle or Parts in its possession if a Customer fails to make the agreed payment for Parts and/or Services or otherwise upon completion of any Services.
- Any lien exercised will extend to all unpaid monies owed to Crossing Auto by the relevant Customer including those arising out of future charges, and shall be in force notwithstanding whether the Customer has temporarily retaken possession of the relevant Vehicle or Parts at any time.
- If the Customer fails to make payment within 14 days of the due date for payment under an Agreement, Crossing Auto may sell all or any of the Vehicle or Parts by public auction or private treaty (unless such sale is expressly prohibited by statute), and the proceeds of such sale are to be applied against any outstanding amount, with the excess (if any) to be refunded to the Customer.
- Abandonment of Vehicles or Parts
- Unless expressly prohibited by statute, any Customer’s Vehicle or any Parts left in the possession of Crossing Auto for a period of longer than 30 days after Crossing Auto has notified the Customer that such Vehicle or Parts is available for collection, will be sold by Crossing Auto and the proceeds of such sale will be applied in satisfaction of any outstanding amount owed to Crossing Auto by the Customer.
- Unless expressly prohibited by statute, any Customer’s Vehicle or any Parts left in the possession of Crossing Auto for a period of longer than 60 days after Crossing Auto has notified the Customer that such Vehicle or Parts is available for collection, will be dealt with or disposed of as Crossing Auto sees fit.
- Exclusion of implied terms
The Customer may have the benefit of consumer guarantees under the ACL. Otherwise, to the maximum extent permitted by law, all terms, conditions or warranties that would be implied into these Terms and Conditions or in connection with the supply of the Services by Crossing Auto under law or statute or custom or international convention, are hereby fully and expressly excluded.
- Limitation of Liability
- Crossing Auto is not liable under any circumstances for any Consequential Loss;
- Crossing Auto is not liable for any damage to and Vehicle or Parts, and need not replace or repair any damaged Vehicle or Parts which:
- Arises from conditions or matters outside of Crossing Auto’s knowledge when the Quote was provided;
- Arose from causes which are outside of Crossing Auto’s control;
- If the value of damaged Vehicles or Parts cannot be agreed between Crossing Auto and the Customer, the value shall be assessed, at the cost of the Customer, by an independent valuer according to the age and condition of the item (not its replacement value).
- Limitation of liability and Australian Consumer Law Guarantees
To the extent that any Vehicle or any Parts supplied by Crossing Auto are not goods of a kind ordinarily acquired for personal, domestic or household use and the Customer is deemed to be a consumer for the purposes of section 64A of the Australian Consumer Law, the Customer agrees that Crossing Auto’s liability for a failure to comply with a consumer guarantee that the Customer may have the benefit of, under the Australian Consumer Law (other than a guarantee under ss 51 (title), 52 (undisturbed possession) and 53 (undisclosed securities)), is limited, at the option of Crossing Auto, to one or more of the following:
(a) Replacement of the Vehicle or Parts or the supply of equivalent Parts; or
(b) The repair of any damaged Vehicle or Parts; or
(c) The payment of the cost of replacing the Vehicle or Parts or of acquiring equivalent Parts; or
(d) Equivalent Parts; or
(e) The payment of the cost of having any damaged Vehicle or Parts repaired.
To the extent that Services supplied by Crossing Auto are services other than services of a kind ordinarily acquired for personal, domestic or household use or consumption, Crossing Auto’s liability for failure to comply with a consumer guarantee that the Customer may have the benefit of is limited, at the option of Crossing Auto to:
- the supply of the Services again; or
- the payment of the cost of having the Services supplied again.
If a Customer instructs Crossing Auto to discontinue or otherwise cancels any agreed Services they will be liable for any loss, damage or expense incurred by Crossing Auto in relation to any Services already provided or otherwise arising out of the cancellation, including the cost of any Parts ordered or installed and Service Charges if applicable.
If any Customer:
- Is in breach or default of these Terms and Conditions; or
- Becomes insolvent, commits an act of bankruptcy or insolvency, or has any action brought against it for bankruptcy or insolvency, then all monies owing by the Customer to Crossing Auto shall immediately become due and payable, without limitation to any other rights and entitlements that may be available to Crossing Auto.
- On the occurrence of either of the events referred to in clause 16(a – b), Crossing Auto will be entitled to:
- Terminate any Agreement; and
- Refuse, suspend or withhold supply of any Vehicle, any Parts and/or any Services.
- Force Majeure
Crossing Auto is not obliged to perform any obligation pursuant to these Terms and Conditions and will not be liable for any breach of such obligations that may arise to the extent and for the period that, by reason of any fact, circumstance, matter or thing beyond Crossing Auto’s reasonable control, Crossing Auto is unable to perform, in whole or in part, that obligation.
- Governing Law
Any Agreement is to be governed by the law of the State of Western Australia, and where relevant, the Commonwealth of Australia.
- Joint and Several Liability
If the Customer comprises 2 or more persons or parties these Terms and Conditions bind each of them separately and any 2 or more of them jointly.
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.
The Customer hereby indemnifies Crossing Auto and its officers, employees and agents against any liability, loss, damage, costs (including the cost of any legal costs and expenses on a solicitor and own client basis), and expenses arising out of or in connection with a default or unlawful or negligent act or omission on the part of the Customer, its officers, employees or agents.