1. DEFINITIONS AND INTERPRETATIONS
Mechanika Motors means Mechanika Motors Pty Ltd ACN 155 225 559.
Customer means any person to or for whom Mechanika Motors provides Services, including (where the context permits) the Owner of the Vehicle or Machinery.
Customer Instructions means the express or implied instructions from the Customer to provide Services.
Goods means all or any part of the goods supplied to the Customer (including automotive parts, tyres, oils and lubricants) as part of the Services provided.
Law means Australian Law.
Notice means a notice in writing given, in the case of Mechanika Motors, to Dean Bryant, Jessica Geale or any employee/hire employee of Mechanika Motors and in the case of the Customer or Owner, to the address provided by the Customer or Owner at or before the time of the Services.
Owner means the owner of the Vehicle or Machinery to or in respect of which Mechanika Motors provides any Services and any other person who has or may acquire any interest in the Vehicle or Machinery.
Parties mean the parties to the Contract incorporating these Terms.
Person includes individuals, partnerships, groups, companies or any other legal entity.
Price means the total price payable for or in relation to the Services, and includes (without limiting the generality of the foregoing) Taxes.
Services means services of any kind relating to the repair, maintenance, refitting, improvement, inspection, testing, storage, transport, handling or delivery of the Vehicle or Machinery and includes (without limiting the generality of the foregoing) the supply, installation and/or fitting of Goods.
Taxes means all statutory or other imposts, levies or charges on or in relation to the Services or the Goods, including (without limiting the generality of the foregoing) custom duties, levies, charges, value added taxes and goods and services taxes.
Terms means the provisions of this contract.
Vehicle or Machinery means a Vehicle of any description, including (without limiting the generality of the foregoing) motorbikes, cars, vans, utilities, trailers, plant equipment, buses, trucks and prime movers as well as all the Vehicle’s component parts.
Writing includes a telegram, letter and email.
i. Where the context requires, the singular includes the plural and vice versa.
ii. Headings are for ease of reference only and are not to be used to interpret the Terms.
iii. References to ‘$’ herein are to Australian dollars.
Any services provided by Mechanika Motors, whether gratuitous or otherwise, will be subject to these Terms unless:
i. Mechanika Motors contracts in writing with the Customer on alternative terms and conditions; or
ii. any provision in these Terms is contrary to any mandatory applicable law relating to the services undertaken by Mechanika Motors on behalf of the Customer.
If clause 1.3.i applies, the alternative terms and conditions or mandatory applicable law will be paramount and will prevail only to the extent of any inconsistency with these Terms. These Terms will otherwise continue to be of full effect.
2. MECHANIKA MOTORS – GENERAL TERMS
Mechanika Motors will undertake the tasks necessary to provide the contracted Services to the Customer within the time specified in the Customer Instructions and agreed to in writing or verbally by Mechanika Motors or, failing that, within a reasonable time. Where the time for performance and/or delivery is agreed in writing, it is only an estimate and not a guarantee and Mechanika Motors shall not be liable for any delay in that respect. Mechanika Motors may by notice to the Customer or Owner, at its sole discretion and at any time, refuse to provide any Services in relation to any Vehicle and where it does so, shall not incur any liability to the Customer, Owner or any other Person. Without limiting the generality of the foregoing, Mechanika Motors may refuse to provide any services where:
i. Customer Instructions are unclear or ambiguous.
ii. the Customer Instructions conflict with the wishes of the Owner of the Vehicle.
iii. Mechanika Motors considers it would be at risk, for whatever reason, should it perform the services.
Where Mechanika Motors refuses to provide any services in accordance with sub-clause (ii) the Customer shall be liable for all costs and outlays incurred by Mechanika Motors in relation to the Services provided up to the point of refusal.
Deviation from Customer’s Instructions
Subject to sub-clause (ii) and (iii), Mechanika Motors will take reasonable steps to perform the Customer’s Instructions. Mechanika Motors or third parties may, in their sole discretion, depart from the Customer’s Instructions in any way without prior notice to the Customer and without incurring any liability to the Customer, Owner or any other Person. Mechanika Motors or third parties may, in their sole discretion, depart from the usual or customary manner or method for providing any Service without prior notice to the Customer and without incurring any liability to the Customer, Owner or any other Person.
(2) Services in Conjunction
The provision of Services may be undertaken in conjunction with the provision of Services to other Customers or third parties, unless specifically agreed in writing prior to the commencement of the Service.
No insurance will be effected, except upon express instructions given in writing by the Customer, and where insurance is effected, it will be at the Customer’s cost and subject to the usual exceptions and conditions of the policies of the insurance company or underwriters taking the risk. Unless otherwise agreed in writing, Mechanika Motors is not under any obligation to effect separate insurance on any Vehicle but may declare it on any open or general policy held by Mechanika Motors. If Mechanika Motors agrees to arrange insurance, it will do so only as agent for the Customer.
(4) Vehicle at Risk of Customer upon Delivery
Whether or not Mechanika Motors is required to deliver the Vehicle to the Customer or Owner, the Vehicle shall be at the risk of the Customer or Owner, from the time the Vehicle leaves the premises of Mechanika Motors, and thereafter Mechanika Motors shall be under no liability to the Customer or Owner in damages or otherwise for any loss, damage, delay or any cause whatsoever.
(5) Special Delivery Arrangements
Except by prior written agreement or under the terms of a printed document signed by Mechanika Motors, any Customer Instructions relating to the delivery or release of Vehicles in specified circumstances are accepted by Mechanika Motors only as agent for the Customer if third Persons are engaged to effect compliance with the Customer Instructions.
Mechanika Motors accepts no liability arising from the types of arrangements referred to in sub-clause (5).
(6) Mechanika Motors – Liberties
Unless specifically agreed in writing between the Customer and Mechanika Motors prior to the commencement of the Service, Mechanika Motors may provide the Service as a principal or procure it as an agent. If Mechanika Motors acts as a principal, it will perform, or in its own name procure the performance of the Services contracted, subject to the provisions of any specific contract for Services it may issue under Clause 1.2.i, failing which these Terms in general and this Clause in particular will apply:
i. Mechanika Motors shall not be liable for any loss or damage whatsoever and however arising whether direct or indirect or consequential for Goods supplied, installed or fitted in the course of providing Services.
ii. Mechanika Motors reserves to itself the liberties as to the means and procedures to be followed in the provision of Services.
iii. Mechanika Motors will be deemed to have taken the Vehicle into its charge when the Vehicle has been received by Mechanika Motors or has been released or handed over by the Customer, or any Person acting on behalf of the Customer, to any Person acting on behalf of Mechanika Motors in accordance with any directions of Mechanika Motors for the performance of the Services.
iv. Mechanika Motors will be deemed to have delivered the Vehicle, either when it has been placed at the disposal of the Customer (or its nominee) or Notice thereof has been given to the Customer (or its nominee) at the address provided by the Customer. If Mechanika Motors acts as an agent then, without prejudice to the general applicability of these Terms.
v. The Customer expressly authorises Mechanika Motors to enter into contracts with third parties on behalf of the Customer for the Services required, unless the Customer and Mechanika Motors have specifically agreed otherwise.
vi. Mechanika Motors does not make, or purport to make, any contract with the Customer for Services, but acts solely on behalf of the Customer in establishing contracts with third-party contractors for the Services required, so that a direct contractual relationship is established between the Customer and the third-party contractor.
vii. If there is a choice of prices according to the extent or degree of the liability assumed by third-party contractors, no declaration of value will be made, except under prior written Customer Instructions accepted by Mechanika Motors; nor will Mechanika Motors be liable to the Customer by reason of having entered into any contract on behalf of the Customer whereby the extent or degree of the liability assumed by a third party contractor is in any respect excluded or limited.
3. CUSTOMER’S WARRANTIES AND INDEMNITIES
The Customer warrants that the Customer is either the Owner or has the authority of the Owner to contract with Mechanika Motors for the services.
(2) Dangerous Vehicles
The Customer warrants that, unless the Customer has provided written notice to and has obtained written agreement from Mechanika Motors, the Customer will not tender for Services any Vehicle which:
i. is of a dangerous, damaging or unsafe nature, so as to be liable to cause damage or to be a risk to property, life or health,
ii. is unregistered or fails to meet any applicable standards of the NSW Roads and Maritime Services.
(3) Vehicle Records
The Customer warrants that all books and records furnished by or on behalf of the Customer or Owner relating to the Vehicle are complete and accurate.
(4) Indemnity Against Claims by Third Persons
The Customer warrants that no claim or allegation will be made by any Person against any parent, subsidiary or associate company, director, servant, agent, Sub-Contractor or employee of Mechanika Motors (each of which will be referred to herein as an “entity”) which imposes or attempts to impose upon any such entity any liability whatsoever in connection with any Services and/or Goods (whether or not arising out of the negligence of such entity) unless Mechanika Motors is acting as an agent only and such entity is an independent contractor providing a Service to the Customer through the agency of Mechanika Motors, in which case the Customer may, upon Notice to the entity, proceed against the entity under the terms of the contract procured on its behalf from such entity by Mechanika Motors acting as agent only. If any claim or allegation is nevertheless brought, the Customer will on Notice by Mechanika Motors forthwith indemnify Mechanika Motors and the entity against all the consequences of the claim or allegation. Unless trading directly with the Customer under its own conditions through the agency of Mechanika Motors, every entity will have the benefit of every right, limitation, defence and liberty of whatever kind contained in these Terms or otherwise available to Mechanika Motors as if such provisions were expressly for the benefit of the entity. In entering into this contract, Mechanika Motors does so on its own behalf and as agent and trustee for such entities. The Customer further warrants that no claim or allegation in respect of any Services or Goods, which imposes or attempts to impose upon Mechanika Motors any liability (whether or not arising out of negligence on the part of Mechanika Motors) will be made against Mechanika Motors by any person other than in accordance with these Terms and, if any such claim or allegation is made, the Customer will upon Notice by Mechanika Motors forthwith indemnify Mechanika Motors against all the consequences of the claim or allegation.
(5) Acting on Customer’s Instructions
The Customer will indemnify Mechanika Motors and any third party against all liability, loss, damage, cost and expense which arises as a result of Mechanika Motors acting in accordance with or reliance on the Customer’s Instructions or arising from any breach by the Customer of any warranty contained in these Terms, including the warranties at sub-clauses 3.1, 3.2, 3.3, 3.4 or from the negligence of the Customer.
(6) Duties, Fines etc
The Customer is liable for and will indemnify Mechanika Motors in respect of all Taxes or other amounts of whatsoever nature for which it may be liable and for all payments, fines, costs, expenses, loss or damage however incurred or sustained by Mechanika Motors in connection with the Services, the Goods or the Vehicle.
Except under special arrangements previously made in writing, advice and information which is not related to Customer Instructions accepted by Mechanika Motors is provided gratuitously and without liability. Advice and information, in whatever form it is given, is provided by Mechanika Motors for the Customer only and the Customer will upon Notice by Mechanika Motors forthwith indemnify Mechanika Motors against any liability, claim, loss, damage, cost or expense arising out of any Person relying on such advice or information.
(1) Time Bar
Notice of any claim by the Customer against Mechanika Motors in respect of any Service must be given within 3 days of the date of provision of the Service or the date on which the Service should have been provided. In any event, Mechanika Motors will be discharged of all liability in respect of any Service provided for the Customer or the Owner unless suit or arbitration is brought and Notice given to Mechanika Motors within 9 months from the date of any event or occurrence alleged to give rise to a cause of action against Mechanika Motors. Exclusion of Liability To the extent permitted by law, Mechanika Motors will not be responsible in tort, contract or otherwise for any loss or damage, including consequential loss, loss of markets and pure economic loss, suffered by the Customer, including:
i. any loss or damage to or deterioration of the Vehicle;
ii. any delay or failure to deliver the Vehicle to the Customer for any reason;
iii. the negligence, wilful act or default of Mechanika Motors or any other Person;
iv. the conversion or misappropriation of the Vehicle by the wilful misconduct of Mechanika Motors’ servants or agents,
v. Any loss or damage however arising from the Goods supplied, fitted or installed to the Vehicle or Machinery in the course of providing Services, whether or not the loss or damage occurs in the course of performance by Mechanika Motors of this contract or in events which are in the contemplation of Mechanika Motors and/or the Customer or in events which are foreseeable by Mechanika Motors and/or the Customer or in events which would constitute a fundamental breach of this contract.
(2) Limits of Liability
To the extent that liability has not been effectively excluded by clause 4.1, Mechanika Motors’ liability (if any and whether acting as principal or agent) will not exceed:
i. in the case of claims for loss or damage to the Vehicle: $100,
or the value of the loss or damage to the Vehicle, whichever is the lesser.
ii. in the case of all other claims: $100, or the value of the Vehicle the subject of the relevant Services, whichever is the lesser.
iii. in the case of a breach of warranty under the Trade Practices Act 1974 or under the NSW Fair Trading Act 1987 (if applicable) for loss or damage caused to or suffered by the Customer:
iv. the supply of the Services again; or
v. the payment of the cost of supplying the Services again to the Customer,
at the election of the Customer by Notice to Mechanika Motors.
For the purposes of this Clause 4.2.i, the value of the Vehicle is its value at the place and time it is delivered to Mechanika Motors for the purpose of the relevant Services or at the place and time they should have been delivered.
(1) Payment of Mechanika Motors’ Invoices and Other Sums
Unless Mechanika Motors otherwise agrees, the Customer will pay to Mechanika Motors the Price in cash/by EFTPOS/cheque at or prior to collection of the Vehicle, without reduction or deferment on account of any claim, counterclaim or set off. If for whatever reason, all or any part of the Price is still unpaid 30 days after the date of the invoice, Mechanika Motors may by Notice add interest at 10%pa. If Mechanika Motors must take action to recover the Price and/or interest, the Customer shall also pay on Notice by Mechanika Motors its actual legal costs and outlays of and incidental to the recovery action on a full indemnity basis.
(2) Collection of Charges
Despite the acceptance by Mechanika Motors of the Customer’s Instructions to collect Taxes and other expenses from any other Person, the Customer remains responsible for such expenses.
Mechanika Motors will have a general lien on any Vehicle or all Vehicles, as well as Goods and documents relating to any such Vehicles, in its possession, custody or control for all sums due and payable under sub-clause 5.1 from the Customer or the Owner, in respect of Services to any or all Vehicles under lien or of any earlier Services on other Vehicles, and will be entitled to sell or dispose of such Vehicles, Goods or documents as agent for and at the expense of the Customer and apply the proceeds in or towards the payment of the Price or other sums due and payable to Mechanika Motors under sub-clause 5.1. Upon accounting to the Customer for any balance remaining after payment of any such sum due to Mechanika Motors and the costs of sale and disposal, Mechanika Motors will be discharged from any liability whatsoever in respect of the Vehicle, Goods or documents.
(4) Retention of Title to Goods
Notwithstanding any arrangement between the Customer and Mechanika Motors regarding credit, the title to and property in Goods at any time sold by Mechanika Motors to the Customer shall not pass to the Customer until all monies owed by the Customer to Mechanika Motors have been paid in full to Mechanika Motors and the title and property in any such Goods shall remain solely with Mechanika Motors until such payment as aforesaid. Pending payment of all monies due to Mechanika Motors, the following shall apply:
i. The Customer shall hold the Goods as Trustee for Mechanika Motors;
ii. The Customer shall not mortgage or pledge the Goods to any Person;
iii. The Customer shall pay the proceeds of any sale of the Goods by it into a banking account separate from all other such accounts conducted by it if it does not cause those monies to be paid directly to Mechanika Motors;
iv. The Customer shall pay the monies received by it and arising from the sale of the Goods to Mechanika Motors immediately it receives the same notwithstanding any other arrangement between the parties as to the payment or credit and that part of such monies received by the Customer as aforesaid which is equal to the monies owing to Mechanika Motors for the Goods shall never become the property of the Customer and shall be held in trust by him for Mechanika Motors;
v. The Customer shall retain records in relation to the purchase and sale of the Goods;
vi. Mechanika Motors shall be entitled at any time to take possession, by reasonable force if necessary, of the Goods and for that purpose to enter upon any property where the Goods may be.
If a cheque is tendered in payment of the purchase monies, then payment shall not be deemed to have been made until such cheque has been paid by the Customer’s bank.
6. LAW AND JURISDICTION
The Services undertaken pursuant to and the interpretation of these Terms are governed by the law of the State of New South Wales.
(2) Place of the Contract
This contract is deemed to have been entered into in the State of New South Wales.
(3) Alternative Dispute Resolution
Should there be any dispute or claim arising out of or in relation to these Terms, the Parties shall firstly refer the dispute or claim to mediation. The mediation shall be conducted by a mediator approved by the Law Society of New South Wales, such mediator to be agreed by the Parties or failing agreement, to be appointed by the President of the Law Society of New South Wales. The Parties shall bear equally the cost of the mediator, but shall otherwise bear their own costs of the mediation. A mediation must occur within 30 days of Notice by one party to the other of a dispute or claim. The manner in which the mediation is to occur is to be agreed between the Parties or failing agreement, by the mediator. The Parties will use their best endeavours to resolve any such dispute or claim at the mediation.
Should any mediation be unsuccessful, then any legal action arising out of or in respect of the contract and/or the interpretation thereof shall be brought only in the Courts of Goulburn in the State of New South Wales and the Customer irrevocably submits himself, herself or itself to the jurisdiction of the Courts of Goulburn in the State of New South Wales.
If any provision in the Terms is unenforceable, illegal or void, then it is severed and the rest of the Terms remain in force.
No failure by Mechanika Motors to exercise and no delay in exercising any right, power or remedy under these terms will operate as a waiver. Nor will any single or partial exercise by Mechanika Motors of any right, power or remedy preclude any other or further exercise of that or any right power or remedy.
9. FORCE MAJEURE
If by reason of any fact, circumstance, matter or thing beyond the reasonable control Mechanika Motors, Mechanika Motors is unable to perform in whole or in part any obligation under these Terms, Mechanika Motors shall be relieved of that obligation under this contract to the extent and for the period that it is so unable to perform and shall not be liable to the Customer in respect of such liability.
Mechanika Motors Pty Ltd was incorporated under the Corporations Law in 2012. Its Secretary and Shareholder, Dean Bryant, has more than 20 years experience as an exceptional diesel mechanic, having previously worked for 10 years at Divalls Earthmoving and Bulk Haulage and completing an engine reconditioning apprenticeship. He has forged a reputation in the Southern Tablelands for his friendly, professional and efficient service. He strives for excellence in all he does, and is committed to ensuring your vehicles and machinery are well serviced at a competitive price.
Mechanika Motors appreciates and thanks you for your business.