Invoice and Repair Terms and Conditions
INVOICE AND REPAIR AGREEMENT TERMS AND CONDITIONS
“ACL” means the Australian Consumer Law 2011 as amended from time to time.
“Agreement” means this Invoice and Repair Agreement.
“Customer” means You, the person/s or entity named in the Repair Order/Job Card and Invoice and includes their personal representatives, successors, administrators and assigns.
“DCPAS” means Us, DC Power Automotive Solutions, the repairer/seller, the company named as such in the Repair Order and includes where relevant any contractor engaged by DCPAS to effect any part of the Works.
“Total Price” means the full amount payable by the Customer to the Repairer for effecting the Works calculated as specified in clause 5.
“Repair Order” means the form overleaf detailing the Works to be effected in respect of the Vehicle.
“Vehicle” means the vehicle owned or in the possession of the Customer as detailed in the Repair Order.
“Works” means the labour, parts and material to be supplied by DCPAS to effect the service or repairs to the Vehicle listed in the Repair Order.
2. Acceptance and Contract. DCPAS ACCEPTANCE OF THIS ORDER IS EXPRESSLY CONDITIONED UPON CUSTOMER’S ACCEPTANCE OF ALL TERMS AND CONDITIONS HEREOF. The terms and conditions hereof shall constitute the binding contract between DCPAS and Customer concerning the goods sold and services performed hereunder. Neither party shall claim any amendment, modification, waiver or release form any provisions hereof unless the same is in writing and signed by both Customer and DCPAS.
a. Customer’s Obligations.
i. signing the Repair Order or verbally authorising DCPAS to carry out the Works,
(a) the Customer warrants that they own the Vehicle or, if the Vehicle is under finance, that they have the sole right to possession and use of the Vehicle.
(b) If clause 2.a.i(a) does not apply to the Customer, the Customer must provide DCPAS with evidence satisfactory to DCPAS that the Customer has the owner’s authority to contract with DCPAS to carry out the Works to the Vehicle.
ii. The Customer warrants the accuracy of the service and use history of the Vehicle related to DCPAS at the time the Repair Order was signed, or the Works authorised by the Customer.
iii. The Customer will be readily available while DCPAS is effecting the Works to provide further instructions and authorisation if DCPAS determines that different or additional Works to those listed in the Repair Order will be required.
iv. The Customer will promptly pay DCPAS any amount/s DCPAS requires by way of deposit or payment on account of work-in-progress for the Works.
v. The Customer is responsible to make backup copies of all data stored in the Vehicle’s devices including, but not limited to, integrated multi-media devices, satellite navigation systems, trip computers, blue tooth settings, electronic address books, telephone numbers, radio codes and SMS. By signing the Repair Order or authorising the Works, the Customer acknowledges having been given the repair notice that appears on the Repair Order. To the full extent permitted by law, the Customer releases DCPAS from any loss or damage to stored data.
vi. If the Customer does not comply with their obligations under this Agreement, DCPAS may cancel or suspend the Works and retain possession of the Vehicle until the Customer complies with its obligations. DCPAS will not be liable for any loss or damage suffered by the Customer as a result of any such cancellation, suspension or retention.
b. Customer’s Authorisations.
i. The Customer gives DCPAS the following authorisation to enable DCPAS to effect the Works:
(a) to purchase the parts and materials it requires to effect the Works in accordance with the Repair Order;
(b) to allow DCPAS staff to operate the Vehicle anywhere and at any time for the purpose of effecting the Works;
(c) to effect the Works in accordance with the Repair Order once the Customer signs the Repair Order or verbally authorises the Works;
(d) to sublet some or all of the Works and to deliver and collect the Vehicle from the premises of any contractor to whom the Works are sublet; and
(e) where the Repair Order was compiled by DCPAS without the opportunity to fully inspect or test the Vehicle, the Customer authorises DCPAS to effect such other Works as DCPAS deems necessary once full inspection or testing is possible; this authority extends to DCPAS effecting such different or additional Works that it deems necessary to return the Vehicle to the Customer in roadworthy condition.
ii. In relation to the authorisations contained in clause 2.b.i:
(a) As regards clause 2.b.i(a), if for any reason the Customer cancels the Repair Order, the Customer will be liable to pay for any parts or materials especially ordered to effect the Works which DCPAS determines cannot readily be used for other customers’ works.
(b) In relation to clause 2.b.i(b), the Customer agrees that the Vehicle is operated by DCPAS staff as agent for and on behalf of the Customer and without being liable to the Customer or the owner of the Vehicle for any loss or damage to the Vehicle while in the possession of DCPAS or any contractor of DCPAS.
(c) In relation to clause 2.b.i(c), DCPAS will use its reasonable endeavours to complete the Works within the time estimated in the Repair Order, however DCPAS will not be liable for any loss or damage sustained by the Customer by reason of any delay beyond the reasonable control of DCPAS. If different or additional Works become necessary, then those Works will be completed within a reasonable time of the original estimate.
(d) In relation to clause 2.b.i(d), DCPAS will use its reasonable endeavours to contact the Customer to obtain express authority to conduct the different or additional Works however, if contact is not made for this purpose, the Customer still authorises DCPAS to carry out these Works.
3. Selling Terms. All goods sold hereunder are F.O.B. DCPAS facility unless otherwise stated herein, but DCPAS retains a security interest in the goods until payment is received. All claims for shipping loss or damage are Customer’s responsibility. Delivery dates are not guaranteed, and DCPAS has no liability for damages that may be incurred due to any delay in shipment of goods hereunder. Taxes are excluded unless otherwise stated.
4. Payment. Payment terms are cash on delivery unless credit terms are established as per DCPAS sole discretion. Customer agrees to pay DCPAS cost of collection of overdue invoices, including reasonable attorney’s fees.
5. Total Price.
a. The Customer acknowledges that the quoted price for the Works stated in the Repair Order is an estimate only and is subject to variation due to either:
i. an increase in the cost of supplying labour, parts and materials after the quoted price was given;
ii. the need to effect different or additional Works to render the repair.
b. The Customer agrees to pay for different or additional Works at DCPAS then customary rate charged for labour and for the landed invoice cost of parts and materials marked up by DCPAS customary margin.
c. The Total Price will be the amount stated in DCPAS service tax invoice being the sum of DCPAS labour, parts and materials charges, together with any applicable taxes, levies, interest on late payments and/or storage charges that may have been incurred and credit card surcharge payable under clause 5.e.ii.
d. The Customer will pay the Total Price to DCPAS as follows:
i. if a cash Customer, upon collection of the vehicle or within 2 business days after being notified that the vehicle is ready for collection.
ii. if an account Customer, within the time stated in the signed credit agreement between the parties.
e. The Customer must pay the Total Price in cleared funds, whether by cash, bank cheque or credit card.
i. if the Customer elects to pay by eftpos or direct deposit to DCPAS bank account, DCPAS is entitled to sight satisfactory evidence of the deposit of cleared funds to its bank account before releasing the Vehicle to the Customer.
ii. if the Customer pays by credit card, the Customer agrees to pay the credit card surcharge notified by DCPAS the amount of which DCPAS will determine in accordance with applicable legislation.
f. The Total Price payable will include any GST payable by DCPAS on any taxable supplies detailed in the service tax invoice.
6. DCPAS Rights. If the Customer fails to pay some or all of the Total Price in accordance with clause 5, the Customer will pay DCPAS the following additional amounts:
a. interest on the unpaid amount charged at the rate of 12% per annum from the date the service tax invoice is issued until the date of actual payment; and
b. a charge to store the Vehicle at DCPAS premises at the rate of $25.00 per day from the date DCPAS notified the Customer that the Vehicle was ready for collection to the date of actual payment.
c. The Customer agrees to the creation of a DCPAS lien over the Vehicle.
d. DCPAS has the right to retain possession of the Vehicle until all amounts owing to DCPAS by the Customer have been paid.
e. The Customer has no claim against DCPAS for any loss or damage arising from the exercise of the lien over the Vehicle by DCPAS.
f. If the Vehicle is in the possession of another contractor to whom repair work was sublet, then the Customer agrees that DCPAS lien may be effected upon the Vehicle by DCPAS contractor as if DCPAS was exercising its rights of lien direct against the Customer. DCPAS rights in clauses 4 and 5 are in addition to and do not limit the rights given to DCPAS under the Disposal of Uncollected Goods Act 1967 (Qld).
7. Security Interest
a. The Customer grants DCPAS a security interest in the Vehicle to secure payment of all amounts owing by the Customer to DCPAS in respect of the Works effected, including the Total Price stated in the tax invoice, interest, storage charges and all costs incurred by DCPAS for the recovery of any such moneys unpaid.
b. The Customer agrees that the security interest over the Vehicle gives DCPAS the right to retain and/or seize and dispose of the Vehicle if the Customer fails to pay any such amount stated in clause 5 within seven (7) days of a formal written demand for the payment of all such amounts being sent to the Customer at the address (including any email address) shown in the Repair Order.
c. The Customer as the grantor of the security created in this clause 7 waives the requirement for notices under the Personal Property Securities Act 2009 (Cth). The Customer will provide DCPAS with the names and addresses of any grantor of any existing security interest over the Vehicle.
d. The creation of the security interest over the Vehicle under this clause 7 is additional to and does not derogate from DCPAS other rights under this Agreement, including DCPAS lien.
e. Upon disposal of the Vehicle DCPAS as the right to apply the net sale proceeds in full or partial discharge of all amounts then owing to DCPAS and will account to and pay the Customer the balance of the sale proceeds (if any) within a reasonable time of disposal of the Vehicle.
f. The Customer, either as the owner of the Vehicle or as the agent of the owner of the Vehicle, consents to the registration of the security interest created in this clause 7 on the Personal Property Securities Register.
8. Parts. DCPAS will wherever possible use only genuine parts supplied or recommended by the manufacturer of the Vehicle, however DCPAS will solely determine the parts to be used unless specifically directed otherwise by the Customer before the commencement of the Works. If DCPAS is directed to or elects to use any parts other than a new genuine part to effect the Works, DCPAS for the purposes of section 54(4)(b) of the ACL specifically draws to the Customer’s attention the possibility that these parts are not of acceptable quality by reason of the fact that they are used or are non-genuine parts.
9. Risks. DCPAS will effect the Works taking all necessary steps to avoid loss or damage to the Vehicle. If despite taking such steps, the Vehicle is lost or damaged while in the possession of DCPAS, the Customer releases DCPAS from all liability for such loss or damage to the Vehicle. DCPAS will not necessarily effect insurance over the Customer’s Vehicle while it is in DCPAS possession. Insuring the Vehicle for loss or damage while in the possession of DCPAS will be the sole responsibility of the Customer.
10. Returns/Cancellations. All claims relating to quantity or shipping errors shall be waived by Customer unless made in writing to DCPAS within thirty (30) days after delivery of goods to the address stated. Customer shall pre-pay freight charges for any approved returns. Customer shall be obligated to pay for the portion of the order that has been delivered to Customer or that is in-process at the time of cancellation.
11. Warranty. For goods manufactured by DCPAS, DCPAS standard limited warranty for the goods sold hereby shall apply. DCPAS obligation under such warranty, unless otherwise stated, is limited to repairing or replacing, at its factory, any parts which are returned to DCPAS within said warranty period, freight prepaid, which upon examination prove to be defective. Labour costs are excluded. THIS WARRANTY IS EXCLUSIVE AND IN LIEU OF ANY OTHER WARRANTIES, EITHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION 10, ALL SERVICES AND MATERIALS ARE PROVIDED “AS IS”. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.
12. Personal Information. The personal information provided by or for the Customer in this Repair Order / Job Card (“Information”) is collected by DCPAS to provide the Customer with products and services. The Information may be disclosed to the Vehicle’s manufacturer and third-party service providers acting on behalf of DCPAS under conditions of confidentiality specifically in relation to the provision of products and services to the Customer. The Customer agrees that DCPAS may also use the Information to send the Customer material or contact the Customer about products or services. DCPAS will take all reasonable steps to ensure that the Information is kept safe from misuse, loss, unauthorised access, modification and/or disclosure. A full copy of DCPAS privacy statement can be viewed at www.dcpowersolutions.com.au. If the Customer no longer wishes DCPAS and the other parties mentioned to have access to the private information, then the Customer must notify DCPAS of this requirement in writing. DCPAS will within a reasonable time of notification cease all access to the information.
13. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, CUSTOMER’S SOLE RECOURSE AGAINST DCPAS IS LIMITED TO THE PROVISIONS IN SECTION 9 ABOVE, AND IN NO EVENT SHALL DCPAS BE RESPONSIBLE OR LIABLE TO CUSTOMER (OR CLAIMS OF ANY THIRD PARTY AGAINST CUSTOMER) FOR SPECIAL, INDIRECT, COLLATERAL, PUNITIVE OR EXLEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES, EVEN IF DCPAS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE FULLEST EXTENT PERMITTED BY LAW, SUCH EXCLUDED DAMAGES INCLUDE, BUT ARE NOT LIMITED TO, LOSS OF GOODWILL, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF USE, INTERRUPTION OF BUSINESS, LOSS OF BUSINESS OPPORTUNITY, OR OTHER DAMAGES RESULTING FROM ANY DELAY, ACT, ERROR OR OMISSION OF DCPAS OR ANY SUBCONTRACTOR OF DCPAS HOWEVER CAUSED INCLUDING NEGLIGENCE, GROSS NEGLIGENCE AND STRICT LIABILITY.
14. Force Majeure. DCPAS shall have no liability to Customer for delay or failure to perform due to any cause beyond the reasonable control of DCPAS.
15. Indemnification. Customer shall indemnify and hold DCPAS harmless from and against any and all claims, demands, lawsuits, damages, liabilities, costs and expenses (including attorney’s fees), incurred by reason of any injury to or death of any person, or damage to any property, resulting from or arising out of any act, error, omission, negligence, or misconduct by Customer in connection with the goods sold hereunder.
16. Governing Law. This order, and the terms and conditions hereof, shall be governed by the law of Queensland and each party irrevocably and unconditionally submits to the nonexclusive jurisdiction of the courts of the State of Queensland.