Terms and Conditions
Mobile Truck Services Pty Ltd
Effective date: 15 December 2020
1. DEFINITION AND INTERPRETATION
1.1 In these terms and conditions, the following definitions and interpretations apply:
a) “MTS” means Mobile Truck Services Pty Ltd ACN 637 725 449.
b) The “Customer” means the individual or entity purchasing and/or receiving Goods sold and/or Services supplied by MTS.
c) “Customer Supplied Parts” means any goods, components or parts supplied by the Customer for the purposes of any work.
d) “Estimated Delivery Date” means, with regards to any Goods or Services, a date agreed between MTS and the Customer or the date stipulated by MTS of which the Goods are proposed to be delivered and/or the Services provided.
e) “Dispute” means a dispute initiated under clause 25.
f) “Goods” means the Goods supplied or to be supplied by MTS 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.
i) “Services” means Services supplied or to be supplied by MTS to the Customer including, but not limited to, panel beating, spray painting, mechanical work, electrical work, glass 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 MTS 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 severally;
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;
iv. Reference to a ‘Customer’ shall include all individuals, (including but not limited to employees or contractors of the Customer) with apparent or actual authority to represent the Customer.
2. TERMS AND CONDITIONS
2.1 MTS and the Customer agree that these terms and conditions shall apply to supply of all Goods and/or Services provided by MTS 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 MTS.
2.2 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 MTS to carry out work, whether that work is the supply of Goods and/or the performance of Services.
3. QUOTATIONS
3.1 If MTS provides or has provided any quotation to a Customer for work (“Quotation”) either verbally or in writing, then it is agreed:
a) These terms and conditions apply to the Quotation.
b) The prices provided in the Quotation shall be the price payable for the Goods and/or Services.
c) Any Quotation provided by MTS is an estimate based on an external inspection only and/or information provided by the Customer (unless the Quotation expressly provides otherwise).
d) Upon acceptance of the Quotation, MTS may require a 20% deposit to be paid.
e) If upon further investigation (including but not limited to after work has commenced), MTS 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 MTS shall carry out the required work after confirmation (in writing or verbally) from the Customer as to any additional expense.
f) In the event the Customer is not contactable after reasonable attempts have been made by MTS to contact the Customer and MTS has already commenced work and determines that additional work not contemplated by the Quotation is required to enable the Vehicle to be in working order, then MTS will carry out the necessary work and the Customer agrees to pay for the parts and labour associated with that work. The labour rates will be the rates specified in the Quotation.
g) Any Quotation will remain valid for acceptance by the Customer for the period of 30 days (subject to changes in manufacturer’s prices for motor vehicle parts) after the date of Quotation.
4. VARIATION OR CANCELLATION
4.1 Once a Customer has accepted a Quotation:
a) Subject to clause 3 regarding Quotations, there can be no change in the scope or nature of the work to be undertaken by MTS unless agreed to by both parties.
b) If the Customer decides to cancel a Quotation or Order, the Customer agrees to:
i. forfeit any deposit paid; and
ii. pay and/or compensate MTS for any loss, damage or expense incurred by MTS (to the extent this extends beyond the deposit amount referred to in clause 4.1(b)(i)) in relation to the cancellation of any Quotation, including, without limitation storage fees, or any costs relating to parts and/or materials purchased in respect of the work detailed in the Quotation.
5. CHARGES AND TAXES
5.1 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 MTS in respect of any proper charges or taxes imposed. If MTS 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.
5.2 The Customer hereby agrees to indemnify and hold harmless MTS 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.
6. AVAILABILTY OF VEHICLE
6.1 If the Customer’s vehicle is not available at the time the work by MTS was due to start, the Customer agrees to pay $55 per hour (or a pro rata amount for every part of an hour) until such time as the vehicle becomes available on that day.
6.2 If the vehicle is not made available on the same day, this will be treated as a cancellation and the Customer agrees to:
a) pay $55 per hour (or a pro rata amount for every part of an hour) from the time the work was due to start to the time MTS was informed that the vehicle would not be available;
b) forfeit any deposit paid; and
c) pay and/or compensate MTS for any loss, damage or expense incurred by MTS (to the extent this extends beyond the deposit amount referred to in clause 6.2(b)) in relation to the cancellation of any Quotation, including, without limitation storage fees, or any costs relating to parts and/or materials purchased in respect of the work detailed in the Quotation.
7. PAYMENT
7.1 The Customer must pay for the work undertaken on completion of the work or as otherwise may be agreed in writing between MTS and the Customer.
7.2 If payment is not made on the same day the work is completed, the Customer shall be liable to pay interest to MTS. The interest rate shall be 1% of the outstanding balance accrued each day the payment is late. For example, if the outstanding balance is $1,000 and the payment is 10 days late, the interest charged shall be a total of $100, being $10 per day.
7.3 If the Customer is insured for any work required, the Customer still remains primarily liable for all monies due to MTS.
7.4 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 MTS for such additional work.
7.5 Payment of interest does not limit, negate or waive any other rights and entitlements that MTS may have arising out of non-payment or late payment by the Customer.
7.6 The Customer is not entitled to deduct or set off any amounts that may be owed by MTS to the Customer or to withhold any payments due to MTS.
7.7 MTS is registered for Goods and Services tax (GST). Without limiting clause 7, the Customer is liable to reimburse MTS for any GST that may be payable by MTS on any supply made pursuant to these terms and conditions to the Customer. MTS shall provide a Tax Invoice to the Customer in respect of any monies due.
7.8 Payment can be made by cash, debit card, or credit card (AMEX and Diner’s Club cards are not accepted). Bank transfers are also accepted, but must be cleared before the vehicle is released to the Customer.
7.9 The Customer agrees to pay any additional credit card/debit card transaction fees.
8. DELIVERY AND RETURNS
8.1 MTS shall use its reasonable endeavours to deliver or perform the work on or before the stipulated Estimated Delivery Date, however:
a) 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 MTS; and
b) MTS 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.
8.2 The Customer will be liable for all costs relating to delivery.
8.3 The Customer is not entitled to return any Goods except with the express prior written approval of MTS. Any return of Goods may, at the discretion of MTS, be subject to 20% handling/restocking fee.
8.4 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
9.1 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.
9.2 Any property of the Customer in the possession or control of MTS is at the risk of the Customer.
9.3 MTS shall not be liable for any damage and/or loss incurred with respect to the property of the Customer while it is in the control or possession of MTS.
10. WARRANTIES
10.1 MTS 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.
10.2 To the extent permitted by law, all other express or implied warranties, representations, terms and conditions other than those in these terms and conditions, are expressly excluded.
10.3 Where there is a conflict between any term of these terms and conditions and any term of any Quotation the terms of these terms and conditions will prevail.
11. LIABILITY
11.1 The Customer agrees that:
a) Except to the extent prohibited by law and subject to any warranty provided by MTS the only remedy against MTS 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 MTS to undertake the work or part of the work shall be limited to MTS replacing or repairing any Goods supplied and/or re-performing the Services, at the discretion of MTS.
b) MTS will otherwise have no liability to the Customer (whether in contract, tort or pursuant to law or equity or otherwise) and without limitation, MTS 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.
c) MTS 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 MTS pursuant to these terms and conditions.
d) For clarity, if the Customer requests that MTS use any Customer Supplied Parts in any work, MTS does not provide any warranty and disclaims and does not accept any liability for any damage of loss arising out or in relation to the installation and use of Customer Supplied Parts in any work.
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
12.1 Within five (5) days after delivery of the Goods and/or provision of the Services by MTS, 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 and the Customer shall notify MTS in writing to the extent to which the Goods and/or Services do not comply with the terms and conditions.
12.2 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, if the Customer advises MTS in writing that the Goods and/or Services do not comply with the terms and conditions, until MTS has had a reasonable opportunity to inspect and test the Goods and/or Services after MTS receives such notice.
12.3 If the Customer does not comply with clauses 12.1 or 12.2 the Customer shall be taken to have unconditionally accepted the Goods and/or Services.
12.4 For clarity, clauses 12.1 to 12.3 above not apply to Customer Supplied Parts installed or used in any work.
13. DEFAULT, INSOLVENCY AND TERMINATION
13.1 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 MTS shall immediately become due and payable, without limitation to any other rights and entitlements that MTS may have.
13.2 If the Customer is in breach or default of these terms and conditions, without limitation, MTS may:
a) Immediately terminate the supply of the Goods and/or Services;
b) Refuse, suspend or withhold supply of any further Goods and/or Services;
c) 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). MTS, in that event, shall have no liability to the Customer whether in trespass, negligence, payment of damages, compensation or otherwise; or
d) Terminate any credit arrangement with a Customer.
14. LIEN
14.1 In addition to any other remedy or right that MTS may have, the Customer acknowledges that MTS 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 MTS 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.
14.2 The Customer agrees and acknowledges that MTS may, in its discretion, exercise its lien in respect of any due and unpaid amounts owing by the Customer to MTS and may retain the Customer’s vehicle and/or any items of any description in or attached to the Customer’s vehicle (including but not limited to the vehicle’s keys) until payment of all amounts outstanding by the Customer to MTS have been paid.
14.3 MTS 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 MTS, for the purposes of seeking payment of all outstanding amounts due by the Customer to MTS.
15. AUTHORITY IN RESPECT OF THE VEHICLE
15.1 The Customer authorises MTS to do every act matter and thing that MTS considers desirable or necessary to undertake the works in respect of the Customer’s vehicle including, but not limited to:-
a) Entering the Customer’s vehicle;
b) Test driving the Customer’s vehicle (including the driving the Customer’s vehicle to location/s outside the premises controlled by MTS); and
c) Undertaking any diagnostic testing as MTS considers appropriate.
15.2 The Customer authorises and agrees that MTS may sub-contract any part of the work required pursuant to these terms and conditions.
15.3 MTS 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 MTS.
15.4 MTS 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 MTS or otherwise.
16. INSPECTION OF VEHICLE
16.1 When the Customer leaves a motor vehicle with MTS, MTS 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.
17. REGISTRATION OF VEHICLE
17.1 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.
17.2 It is the Customer’s responsibility to ensure that all vehicles repaired by MTS 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 MTS. 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.
17.3 If the Customer’s vehicle is driven by an employee or agent of or other person authorised by MTS or a contractor engaged by MTS, MTS shall require that any such person has a current, valid and applicable driver’s licence.
17.4 Without limiting any other provision of these terms and conditions, the Customer releases and indemnifies MTS (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 MTS (or any of its employees, agents, contractors and other persons authorised by it) due to or arising out of any act or omission of MTS (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.
18. HEAVY VEHICLES
18.1 If the Customer’s vehicle is a Heavy Vehicle, if any wheels on the Heavy Vehicle are removed for the purposes of undertaking work, MTS requires the Customer to monitor the wheels removed after any works have been performed. MTS recommends that the Customer check the tension of any wheel nuts removed after travelling approximately 50 kilometres.
19. PARTS REMOVED AND “DASH CAM”
19.1 If any parts are removed from the Customer’s vehicle, those parts will, upon such removal, become the property of MTS and MTS are entitled to retain possession of those parts.
19.2 If the Customer’s vehicle has a “dash cam”, MTS requires that such camera be turned off before any works are undertaken.
20. CUSTOMER SUPPLIED PARTS
20.1 The Customer may request that MTS use any Customer Supplied Parts in any work. If the Customer so requests, it is agreed:
a) MTS does not offer any warranty for using Customer Supplied Parts in any work;
b) MTS shall, so far as it is able, ascertain whether the Customer Supplied Parts is fit for the mechanical purposes of any work. MTS may request information and details from the Customer about the Customer Supplied Parts and the Customer, must, in good faith, provide all reasonable details requested by MTS. MTS will rely upon the information and details provided by the Customer in respect of the Customer Supplied Parts in its decision whether the Customer Supplied Parts are suitable to be installed or used in any work.
c) If the Customer Supplied Parts is, in the opinion of MTS, suitable, install or use the Customer Supplied Parts in any work for the Customer;
d) If the Customer Supplied Parts is, in the opinion of MTS, not suitable for installation or use in any work, inform the Customer of that view. If the Customer insists that the Customer Supplied Parts be installed or used in any work, MTS expressly disclaims any lability for loss or damage arising out of installing or using the Customer Supplied Parts.
21. FORCE MAJEURE
21.1 If, for any reason beyond the reasonable control of MTS, 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, MTS 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.
21.2 If a delay or failure by MTS to perform its obligations due a force majeure event exceeds seven (7) days, MTS may immediately terminate the agreed arrangements or such part or parts as remain unperformed by giving notice to the Customer.
21.3 In the event of such termination under clause 21.2, the Customer must pay MTS all fees and charges incurred prior to the effective date of termination for the work performed.
22. GOVERNING LAWS
22.1 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.
23. GENERAL
23.1 MTS 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 MTS 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 MTS agrees to such waiver in writing.
23.2 If MTS exercises a partial right or entitlement, that does not preclude any further or whole exercise of that right or entitlement.
23.3 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.
24. NOTICES
24.1 Any notice required to be given by the Customer to MTS pursuant to these terms and conditions may be emailed to info@mobiletruckservices.com.au (or such other address as MTS may, from time to time, nominate).
24.2 Notices will be deemed to be delivered when received by MTS.
24.3 Any notice required to be given by MTS 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 email 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 MTS sending the email to the email address provided by the Customer).
25. DISPUTE RESOLUTION
25.1 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.
25.2 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).
25.3 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.
25.4 If the Parties do not agree within seven (7) days of receipt of the Notice (or any further period agreed by them) as to:
a) the dispute resolution technique and the procedures to be adopted;
b) the timetable for all steps in those procedures; and
c) the selection and compensation of the independent person required for such technique,
then the Parties must mediate the Dispute.