Terms and Conditions – Workshop Maintenance, Panel and Paint Services

  1. Definitions
  • “Company” means Ore Investments Pty Ltd, its trading entities, successors and assigns or any person acting on behalf of and with the authority of Ore Investments Pty Ltd.
  • “Customer” means the person/s purchasing the Works as specified in any invoice, document or order, and if there is more than one Customer is a reference to each Customer jointly and severally.
  • “Works” means all Works provided by the Company to the Customer at the Customer’s request from time to time (and where the context so permits shall include any supply of Parts as hereinafter defined).
  • “Parts” shall mean Parts supplied by the Company to the Customer either separately, or as part of the Works (and where the context so permits shall include the provision of Works as defined above).
  • “Price” means the Price payable for the Works as agreed between the Company and the Customer in accordance with clause 4
  1. Acceptance
  • The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for or accepts provision of the Works.
  • The Company (at their sole discretion) shall only provide the Works after receipt of a duly authorised purchase order from the Customer confirming their request thereof.
  • These terms and conditions may only be amended with the Company’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Customer and the Company.
  1. Change in Control
  • The Customer shall give the Company not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s name, address, contact phone or fax number/s, or business practice). The Customer shall be liable for any loss incurred by the Company as a result of the Customer’s failure to comply with this clause.
  1. Price and Payment
  • At the Company’s sole discretion the Price shall be either:
  • as indicated on any invoice provided by the Company to the Customer; or
  • the Company’s estimated Price (subject to clause 5) which shall not be deemed binding upon the Company as the actual Price can only be determined upon completion of the Works. The Company undertakes to keep the Customer informed should the actual Price look likely to exceed the original estimate; or
  • the Company’s quoted Price (subject to clause 5) which shall be binding upon the Company provided that the Customer shall accept the Company’s quotation in writing within thirty (30) days of issue; and
  • unless specifically stated otherwise in writing by the Company, any freight charges or other costs to suppliers for Parts shall not be included in the Price.
  • Time for payment for the Works being of the essence, the Price will be payable by the Customer on the date/s determined by the Company, which may be:
  • on collection of the Parts or vehicle; or
  • for approved Customer’s, due thirty (30) days following the date of any invoice given to the Customer by the Company;
  • the date specified on any invoice or other form as being the date for payment; or
  • failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Customer by the Company.
  • Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card (plus a surcharge of up to three percent (3%) of the Price for any Amex, JCB or Diners transaction), or by any other method as agreed to between the Customer and the Company.
  • Unless otherwise stated the Price does not include GST. In addition to the Price the Customer must pay to the Company an amount equal to any GST the Company must pay for any provision of Works by the Company under this or any other agreement. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition the Customer must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
  1. Additional Charges
    • The Company reserves the right to change the Price:
      • if a variation to the Works which are to be provided is requested; or
      • where additional Works are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, further faults which are found upon disassembly and/or further inspection) which are only discovered upon commencement of the Works; or
      • in the event of increases to the Company in the cost of labour or Parts which are beyond the Company’s control.
    • Where the Company is requested to store the Customer’s Parts or vehicle, or where Parts or vehicles are not collected within twenty-four (24) hours of advice to the Customer that they are ready for collection, then the Company (at its sole discretion) may charge the Customer a reasonable fee for storage.
    • For mobile Works, a minimum call-out fee (equal to one (1) hour labour, plus travel costs) shall be applicable, which shall be increased (to two (2) hours labour, plus travel costs) for any after-hours call-outs.
    • All tow and/or salvage fees will be charged to the Customer, and will be added to the Price.
    • If the Company has been requested by the Customer to diagnose a fault that requires disassembly and/or testing, all costs involved will be charged to the Customer irrespective of whether or not the repair goes ahead.
    • The Customer acknowledges and agrees that the Company shall be entitled to:
      • retain any components replaced during the provision of the Works; and
      • the right to retain all proceeds obtained from the sale of such components to any auto recycler or salvage yard.
    • Where it has been agreed to between the parties that the Customer will pay the Price by instalments, the Customer acknowledges and agrees that a handling fee and reasonable interest charges shall be applicable.
  1. Provision of the Works
    • Where the Company is to provide any Works at the Customer’s nominated address, then the Customer shall be liable for all costs incurred by the Company from the time they depart from, and until they return to, their normal place of work (including, but not limited to, mileage and time calculated at the Company’s standard rates and any Parts purchased for the Works).
    • The Company may provide the Works in separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions in these terms and conditions.
    • Any time or date given by the Company to the Customer is an estimate only. The Customer must still accept provision of the Works even if late, and the Company will not be liable for any loss or damage incurred by the Customer as a result of this.
  1. Risk
    • The Customer acknowledges that the Company is only responsible for Parts that are replaced by the Company and that in the event that other components subsequently fail, the Customer agrees to indemnify the Company against any loss or damage to the vehicle, Parts, or caused by the components, or any part thereof howsoever arising.
    • The Company shall not be liable for the loss of or damage to the vehicle, its accessories or contents while being serviced or being driven in connection with the authorised Works (including in the event of a call-out: it shall be the Customer’s responsibility to remain with the vehicle to ensure security of the same), unless caused by the negligence of the Company or the Company’s employees.
    • It is the Customer’s responsibility to ensure that the vehicle is insured against all possible damage (including, but not limited to, the perils of accident, fire, theft and burglary and all other usual risks) whilst stored at the Company’s premises. The vehicle is at all times stored and repaired at the Customer’s sole risk.
  1. Title
    • The Customer acknowledges and agrees that the Customer’s obligations to the Company for the provision of Works shall not cease, and subsequent ownership of the Parts shall not pass, until:
      • the Customer has paid the Company all amounts owing for the Works; and
      • the Customer has met all other obligations due by the Customer to the Company in respect of all contracts between the Company and the Customer.
    • Receipt by the Company of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then the Company’s ownership or rights in respect of this agreement (and the Works) shall continue.
    • It is further agreed that:
      • until ownership of the Works passes to the Customer in accordance with clause 1, the Customer is only a bailee of the Parts and must return the Parts to the Company on request.
      • the Customer holds the benefit of the Customer’s insurance of the Parts on trust for the Company and must pay to the Company the proceeds of any insurance in the event of the Parts being lost, damaged or destroyed.
      • the Customer must not sell, dispose, or otherwise part with possession of the Parts other than in the ordinary course of business and for market value. If the Customer sells, disposes or parts with possession of the Parts then the Customer must hold the proceeds of any such act on trust for the Company and must pay or deliver the proceeds to the Company on demand.
      • the Customer should not convert or process the Parts or intermix them with other Parts but if the Customer does so then the Customer holds the resulting product on trust for the benefit of the Company and must sell, dispose of or return the resulting product to the Company as it so directs.
      • the Customer irrevocably authorises the Company to enter any premises where the Company believes the Parts are kept and recover possession thereof.
      • the Customer shall not charge or grant an encumbrance over the Parts nor grant nor otherwise give away any interest in the Parts while they remain the property of the Company.
      • the Company may commence proceedings to recover the Price of the Works notwithstanding that ownership of the Parts has not passed to the Customer.
  1. Personal Property Securities Act 2009 (“PPSA”)
    • In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPS
    • Upon assenting to these terms and conditions in writing the Customer acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Parts and collateral (accounts) – being a monetary obligation of the Customer to the Company for Works – previously provided, and that will be provided in the future, by the Company to the Customer.
    • The Customer undertakes to:
      • promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which the Company may reasonably require to;
        • register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
        • register any other document required to be registered by the PPSA; or
        • correct a defect in a statement referred to in clause 3(a)(i) or 9.3(a)(ii);
      • indemnify, and upon demand reimburse, the Company for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any registration made thereby;
      • not register a financing change statement in respect of a security interest without the prior written consent of the Company;
      • not register, or permit to be registered, a financing statement or a financing change statement in relation to the Parts and collateral (accounts) in favour of a third party without the prior written consent of the Company.
    • The Company and the Customer agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
    • The Customer waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
    • The Customer waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
    • Unless otherwise agreed to in writing by the Company, the Customer waives their right to receive a verification statement in accordance with section 157 of the PPSA.
    • The Customer must unconditionally ratify any actions taken by the Company under clauses 3 to 9.5.
    • Subject to any express provisions to the contrary nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
  1. Security and Charge
    • In consideration of the Company agreeing to provide the Works, the Customer charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Customer either now or in the future, to secure the performance by the Customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
    • The Customer indemnifies the Company from and against all the Company’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising the Company’s rights under this clause.
    • The Customer irrevocably appoints the Company and each director of the Company as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 10 including, but not limited to, signing any document on the Customer’s behalf.
  1. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
    • The Customer must inspect the Works on provision and shall within twenty-four (24) hours of such time (being of the essence) notify the Company in writing of any evident defect/damage, error or omission, shortage in quantity, or failure to comply with the description or quote. The Customer must notify any other alleged defect in the Works as soon as reasonably possible after any such defect becomes evident. Upon such notification the Customer must allow the Company to inspect/review the Works.
    • Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (Non-Excluded Guarantees). The Company acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees. Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, the Company makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Works. The Company’s liability in respect of these warranties is limited to the fullest extent permitted by law. If the Customer is a consumer within the meaning of the CCA, the Company’s liability is limited to the extent permitted by section 64A of Schedule 2. If the Company is required to rectify, re-provide, or pay the cost of re-providing the Works under this clause or the CCA, but is unable to do so, then the Company may refund any money the Customer has paid for the Works but only to the extent that such refund shall take into account the value of Works and/or Parts which have been provided to the Customer which were not defective.
    • If the Customer is not a consumer within the meaning of the CCA, the Company’s liability for any defect or damage in the Works is:
      • limited to the value of any express warranty or warranty card provided to the Customer by the Company at the Company’s sole discretion;
      • limited to any warranty to which the Company is entitled, if the Company did not manufacture the Parts;
      • otherwise negated absolutely.
    • Notwithstanding clauses 1 to 11.3 but subject to the CCA, the Company shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
      • the Customer failing to properly maintain or store the vehicle;
      • the Customer using the vehicle for any purpose other than that for which they were designed;
      • the Customer continuing the use of the vehicle after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
      • the Customer failing to follow any instructions or guidelines provided by the Company;
      • fair wear and tear, any accident, or act of God.
    • Notwithstanding anything contained in this clause if the Company is required by a law to accept a return then the Company will only accept a return on the conditions imposed by that law.
    • The Customer acknowledges and agrees that:
      • warranty repairs exclude fluids, belts, gaskets, or other consumables unless expressly covered by warranty.
      • if a vehicle or component is submitted for repair under a warranty or insurance claim, and the claim is declined or payment delayed, the Customer is liable for payment and agrees to pay for any such repair.
  1. Default and Consequences of Default
    • Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at the Company’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
    • If the Customer owes the Company any money the Customer shall indemnify the Company from and against all costs and disbursements incurred by the Company in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, the Company’s contract default fee, and bank dishonour fees).
    • Without prejudice to any other remedies the Company may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions the Company may suspend or terminate the provision of Works to the Customer. The Company will not be liable to the Customer for any loss or damage the Customer suffers because the Company has exercised its rights under this clause.
    • Without prejudice to the Company’s other remedies at law the Company shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to the Company shall, whether or not due for payment, become immediately payable if:
      • any money payable to the Company becomes overdue, or in the Company’s opinion the Customer will be unable to make a payment when it falls due;
      • the Customer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
      • a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
  1. Cancellation
    • The Company may cancel any contract to which these terms and conditions apply or cancel provision of the Works at any time before the Works have commenced (or Parts delivered) by giving written notice to the Customer. On giving such notice the Company shall repay to the Customer any money paid by the Customer for the Works. The Company shall not be liable for any loss or damage whatsoever arising from such cancellation.
    • In the event that the Customer cancels provision of the Works, the Customer shall be liable for any and all loss incurred (whether direct or indirect) by the Company as a direct result of the cancellation (including, but not limited to, any loss of profits).
    • Cancellation of orders for Parts made, modified or sourced by the Company to the Customer’s specifications, or for non-stocklist items, will definitely not be accepted once an order has been placed.
  1. Privacy Act 1988
    • The Customer agrees for the Company to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, previous credit applications, credit history) about the Customer in relation to credit provided by the Company.
    • The Customer agrees that the Company may exchange information about the Customer with those credit providers and with related body corporates for the following purposes:
      • to assess an application by the Customer; and/or
      • to notify other credit providers of a default by the Customer; and/or
      • to exchange information with other credit providers as to the status of this credit account, where the Customer is in default with other credit providers; and/or
      • to assess the creditworthiness of the Customer including the Customer’s repayment history in the preceding two years.
    • The Customer consents to the Company being given a consumer credit report to collect overdue payment on commercial
    • The Customer agrees that personal credit information provided may be used and retained by the Company for the following purposes (and for other agreed purposes or required by):
      • the provision of Works; and/or
      • analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to the provision of Works; and/or
      • processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Customer; and/or
      • enabling the collection of amounts outstanding in relation to the Works.
    • The Company may give information about the Customer to a CRB for the following purposes:
      • to obtain a consumer credit report;
      • allow the CRB to create or maintain a credit information file about the Customer including credit history.
    • The information given to the CRB may include:
      • personal information as outlined in 1 above;
      • name of the credit provider and that the Company is a current credit provider to the Customer;
      • whether the credit provider is a licensee;
      • type of consumer credit;
      • details concerning the Customer’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);
      • advice of consumer credit defaults, overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Customer no longer has any overdue accounts and the Company has been paid or otherwise discharged and all details surrounding that discharge(e.g. dates of payments);
      • information that, in the opinion of the Company, the Customer has committed a serious credit infringement;
      • advice that the amount of the Customer’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
    • The Customer shall have the right to request (by e-mail) from the Company:
      • a copy of the information about the Customer retained by the Company and the right to request that the Company correct any incorrect information; and
      • that the Company does not disclose any personal information about the Customer for the purpose of direct marketing.
    • The Company will destroy personal information upon the Customer’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this agreement or is required to be maintained and/or stored in accordance with the law.
    • The Customer can make a privacy complaint by contacting the Company via e-mail. The Company will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Customer is not satisfied with the resolution provided, the Customer can make a complaint to the Information Commissioner at www.oaic.gov.au.
  1. Unpaid Seller’s Rights
    • Where the Customer has left any item with the Company for repair, modification, exchange or for the Company to perform any other service in relation to the item and the Company has not received or been tendered the whole of any moneys owing to it by the Customer, the Company shall have, until all moneys owing to the Company are paid:
      • a lien on the item; and
      • the right to retain or sell the item, such sale to be undertaken in accordance with any legislation applicable to the sale or disposal of uncollected goods.
    • The lien of the Company shall continue despite the commencement of proceedings, or judgment for any moneys owing to the Company having been obtained against the Customer.
  1. General
    • The failure by the Company to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect the Company’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
    • These terms and conditions and any contract to which they apply shall be governed by the laws of Western Australia, the state in which the Company has its principal place of business, and are subject to the jurisdiction of the Kalgoorlie Court in that state.
    • Subject to clause 11, the Company shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by the Company of these terms and conditions (alternatively the Company’s liability shall be limited to damages which under no circumstances shall exceed the Price).
    • The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by the Company nor to withhold payment of any invoice because part of that invoice is in dispute.
    • The Company may license or sub-contract all or any part of its rights and obligations without the Customer’s consent, and:
      • the Company does not warrant the accuracy or quality of the sub-contractor’s work or warrant that any recommendations of the sub-contractor are appropriate or adequate or are fit for their purpose or that they are not given negligently; and
      • the Customer shall not make any demand on the Company or commence any legal proceedings against the Company, and the Company shall have no liability, whether in negligence or otherwise, to the Customer in relation to any work performed by the sub-contractor.
    • The Customer agrees that the Company may amend these terms and conditions at any time. If the Company makes a change to these terms and conditions, then that change will take effect from the date on which the Company notifies the Customer of such change. The Customer will be taken to have accepted such changes if the Customer makes a further request for the Company to provide Works to the Customer.
    • Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
    • The Customer warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it.