Terms And Conditions

For Services And Sales Of Goods

1.0 Deposit

1.1 To secure a booking date and materials pricing, we require a deposit. This deposit covers the major materials or up to 50% of the Works estimated value, whichever is the lesser of the two. This deposit is NOT REFUNDABLE. However:-

In the event there is a need to cancel the booking, all materials remain the property of the customer and are available for pickup once received. A AU$25 administrative fee may apply.
For lower value deposits, where no materials were required to be specially ordered, it is at the Business’s sole discretion whether the deposit will be returned. A AU$25 administrative fee may apply.

1.2 The requested deposit amount is valid for 30 days from the date it was sent to you unless otherwise specified, as supplier costs can fluctuate. The price reflected in any estimate or quote is also only valid for 30 days as a result of this.

2.0 Price And Payment

2.1 Our prices and quotes do not include GST unless stated otherwise. This GST requirement will only apply to subcontracted work.

2.2 At the Business’s sole discretion, the Price shall be either: –

a) As indicated on invoices provided by the Business to the Client in respect of Works performed or Goods supplied; or –
b) The Business’s original quoted Price (subject to clause 2.3), provided that the works could be quoted rather than estimated, and is accepted by the Client, within 30 days.

2.3 The Business reserves the right to change the Price: –

a) If a variation to the Works originally scheduled (including any applicable plans or

specifications) are requested; or

b) If a variation to the Goods which are to be supplied is requested; or
c) Where additional Works are required due to the discovery of hidden or unidentifiable difficulties (including but not limited to, prerequisite work by any third party not being completed, limitations to accessing the Site, required parts not being delivered by the Client, hidden damage, etc) which are only discovered on or after commencement of the Works; or
d) In the event of increases to the Business in the cost of labour or materials that are beyond the Business’s control.

2.4 Sole discretion:

a) A deposit of not more than 50% may be required;
b) Any deposit required must be paid in full on acceptance of any quote;
c) The Business will not commence any Works or supply any Goods until the required deposit is paid in full;
d) The Price will be payable by the Client on the date/s determined by the Business, which may be: –
i) On completion of the Works; or
ii) By way of progress payments in accordance with the Business’s specified progress payment Schedule; or

iii) The date specified on any invoice or other form as being the date for payment; or

iv) Failing any notice to the contrary, the date which is 7 days following the date of any invoice given to the Client by the Business.

2.5 Payment may be made by cash, electronic transfer/online bank transfer, or by any other method as agreed to between the Client and the Business.

3.0 Site Works

3.1 Site Access: –

Where the Works are carried out onsite, the Client must ensure that the Business always has clear and free access to the Site to enable them to undertake the Works. The Business shall not be liable for any loss or damage to the Site unless due to the negligence of the Business.

3.2 Prior to the Business commencing any work, the Client must advise the Business of the precise location of all relevant services on the Site (including but not limited to air-compressor, toilets, taps, etc).

3.3 Whilst the Business will take all care to avoid damage to any services, the Client agrees to indemnify the Business in respect of all liability claims, loss, damage, costs and fines as a result of damage to services used by the Business in the process of completing scheduled Works.

4.0 Title

4.1 The Business and the Client agree that ownership of the Goods shall not pass to the Client until:

a) the Client has paid the Business all amounts owing to the Business; and
b) the Client has met all its other obligations to the Business.

4.2 Receipt by the Business 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.

5.0 Defects, Warranties And Returns

5.1 Our goods and services come with guarantees that cannot be excluded under the Australian Consumer Law. The Client is entitled to a replacement or refund in the case of a major failure. The Client is also entitled to have the goods repaired or replaced if the goods and/or services fail to be of acceptable quality and the failure does not amount to a major failure. This warranty will not apply:

to normal wear and tear;
where goods come to the end of their natural service life;
to maintenance items such as globes, wiper blades, lubricants and fluids; or
where the defect is a result of:
1. alteration, accident, misuse, abuse or neglect;
2. unsafe or inappropriate driving practices; or

where the product or services are subsequently repaired or modified by an unauthorised service agent.

We will repair, exchange or resupply (at our discretion) the product or service provided the claim falls within the conditions set out in this document.

5.2 The Client must inspect all Works upon completion (or the Goods upon delivery) and must, within 7 days of completion or delivery, notify the Business in writing of any evident defect/damage, shortage in quantity, or failure to comply with the order description or quote. The Client must notify of any other alleged defect in the Works/Goods as soon as reasonably possible after any such defect becomes evident. Upon such notification, the Client must allow the Business to review the Works or to inspect the Goods within 14 days of said notification. All warranty claims need to be made by returning the vehicle and/or product to our workshop in Elimbah, QLD. It is the customer’s responsibility to bring the vehicle and/or product back to our workshop for inspection. If this is not possible, call-out fees may apply.

5.3 Under applicable State, Territory and Commonwealth Law (including, without limitation, the Competition and Consumer Act 2010), certain statutory implied guarantees and warranties (including, without limitation, the statutory guarantees under the Act) may be implied into these terms and conditions (Non-excluded Guarantees).

5.4 The Business acknowledges that nothing in these terms and conditions purports to modify or exclude the Non- Excluded Guarantees

5.5 Except as expressly set out in these Terms and Conditions or in respect of the Non-Excluded Guarantees, the Business makes no warranties or other representations under these terms and conditions, including but not limited to the quality or suitability of the Goods/Works. The Business’s liability in respect of the warranties is limited to the fullest extent permitted by law.

5.6 If the Client is a consumer within the meaning of the Act, the Business’s liability is limited to the extent permitted by section 64 A (of Schedule 2).

5.7 If the Business is required to replace any Goods under this clause or the Act, but is unable to do so, the Business may refund any money the Client has paid for the Goods.

5.8 If the Business is required to rectify, re-supply, or pay the cost of re-supplying the Works under this clause or the Act, but is unable to do so, then the Business may refund any money the Client has paid for the Works but only to the extent that such refund shall take into account the value of Works and Goods which have been provided to the Client which were not defective.

5.9 If the Client is not a consumer within the meaning of the Act, then Business’ liability for any defect or damage in the Goods is;

a) limited to the value of any express warranty or warranty card provided to the Client by the Business at the Business’s sole discretion;
b) limited to any warranty to which the Business is entitled, if the Business did not manufacture the Goods;
c) otherwise negated absolutely

5.10 Subject to this clause (5), return of goods purchased will only be accepted provided that:

a) the Client has complied with the provisions of clause 5.1; and
b) the Business has agreed that the Goods are defective; and
c) the Goods are returned within a reasonable time at the Client’s cost (if that cost is not significant); and the Goods are returned in as close a condition to that in which they were delivered/collected as is possible.

5.11 Notwithstanding clauses 5.1-5.10, but subject to the Act, the Business shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:

a) the Client facility properly maintains or stores any Goods;
b) the Client using the Goods for any purpose other than that for which they were designed;
c) the Client continuing to use any Goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
d) interference with the Works by the Client or any third party without the Business’s prior approval;
e) the Client failing to follow any instructions or guidelines provided by the Business;
f) fair wear and tear, any accident, or act of God.

6.0 Intellectual Property

6.1 Where the Business has designed, drawn, written plans or a schedule of Works, or created any products/Goods for the Client, then the copyright in all such designs, drawings, documents, plans, schedules and products shall remain vested in the Business, and shall only be used by the Client at the Business’s discretion.

6.2 The Client warrants that all designs, specifications or instructions given to the Business will not cause the Business to infringe any patent, registered design or trademark in the execution of the Client’s order, and the Client agrees to indemnify the Business against any action taken by a third party against the Business in respect of any such infringement.

6.3 The client agrees that the Business may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings, plans or products/Goods which the Business has created.

7.0 Cancellation

7.1 The Business may cancel any contract to which these terms and conditions apply or cancel delivery of Works/Goods at any time before the Works are commenced by giving written notice to the Client. On giving such notice, the Business shall repay to the Client any sums paid in respect of the Price, less any amounts owing by the Client to the Business for Works already performed or Goods purchased. The business shall not be liable for any loss or damage whatsoever arising from such cancellation.

7.2 In the event that the Client cancels the delivery or Works, the Client shall be liable for any and all loss incurred (whether direct or indirect) by the Business as a direct result of the cancellation (including, but not limited to, any loss of profits)

7.3 Cancellation of orders for Goods/products made to the Client’s specifications will not be accepted once production has commenced.

8.0 Unpaid Seller’s Rights

8.1 Where the Client has left any item with the Business for repair, modification, exchange or for the Business to perform any other service in relation to the item and the Business has not received or been tendered the whole of any monies owing to it by the Client, the Business shall have, until all monies owing to the Business are paid:

a) a lien on the item( under general law or equity) over all products the Business’s possession belonging to the Client, including vehicles and all goods in or attached to the vehicle (“Lien”), to secure payment of any or all amounts outstanding; and
b) the right to retain or sell the item after six months from completion. Such a sale is to be undertaken in accordance with The Disposal of Uncollected Goods Act 1967, for the sale or disposal of uncollected goods. In the event that a vehicle and/or goods are sold, the Business will apply the proceeds in the first instance to the satisfaction of the amounts outstanding by the Client, and costs, including but not limited to the costs of arranging and exercising the right of sale.

8.2 The lien of the Business shall continue despite the commencement of proceedings, or judgment for any monies owing to the Business having been obtained against the Client.

9.0 Liabilities

9.1 The Business will not be liable to the Client or any third party in respect of any claim for injury, death, loss or damage to any person or property caused or arising out of any services performed by the Business, or out of the use of products sold by the Business, except to the extent that liability is imposed upon the Business or implied into a transaction by this agreement or by any statutory provisions that cannot be excluded by this agreement.

9.2 The Business has no authority to accept any goods for safe custody and will not be liable in any case for loss of, or damage to, any articles alleged to have been left with the Business or alleged to have been left in your vehicle, however such loss or damage was caused.

9.3 In the event that the Client’s vehicle is stolen or damaged whilst in the Business’s care and custody, the Business’s public liability insurance will only cover loss/damage where the Business is determined to be at fault. If it is determined that the Business took all due care to prevent the loss/damage, the Client’s own vehicle insurance will carry all liability.

9.4 In the event that the Client’s vehicle is not registered, the Client agrees to inform the Business that the vehicle is not registered and should not be test-driven. The Business will not be liable to the Client or any third party in respect of any claim for breaches of the relevant road, traffic or other authority.

9.5 In the event that the Client’s vehicle is damaged or stolen whilst in the Business’s custody and control, the Business’s drivers’ risk insurance will only cover loss/damage where the Business is determined to be at fault. If it is determined that the Business took all due care to prevent the loss/damage, the at-fault driver’s insurance will carry all liability.

9.6 Every exemption from liability and every right, defence and immunity applicable to the Business is available to, and extends to protect every employee or agent of the Business (including any independent contractor employed by the Business) acting in the course of or in connection with their employment or engagement.

10.0 Dispute Resolution

10.1 If a dispute arises between the parties to this contract, then either party shall send to the other party a notice of dispute in writing adequately identifying and providing details of the dispute. The parties shall confer at least once within 14 days after service of a notice of dispute to attempt to resolve the dispute. At any such conference, each party shall be represented by a person having the authority to agree to a resolution

11.0 General

11.1 The failure by the Business to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect the Business’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.

11.2 These terms and conditions and any contract to which they apply shall be governed by the law of the State of Queensland, and the parties agree to submit to the exclusive jurisdiction of the courts of that State.

11.3 Subject to clause 5, the Business shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client (alternatively the Business’s Liability shall be limited to damages which under no circumstances shall exceed the Price of the Works).

11.4 The Client shall not be entitled to set-off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by the Business, nor to withhold payment of any invoice other than the part of that invoice/s is in dispute.

11.5 The Business may license or subcontract all or any part of its rights and obligations without the consent of the Client.

11.6 The Client agrees that the Business may amend these terms and conditions at any time. If the Business makes a change to these terms and conditions, then that change will take effect from the date on which the Business notifies the Client of such change. The Client will be taken to have accepted such changes if the Client makes a further request for the Business to provide any Goods and/or Works to the Client.

11.7 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lockout, industrial action, fire, flood, storm or any other cause beyond the reasonable control of either party.

11.8 The Client 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.

Definitions

“Business” Means High Society Kustom Garage (ABN 86367397397) and its successors and assigns or any person acting on behalf of and with the authority of the Business.

“Client” means the person/s ordering the Works as specified in any estimate, invoice, document or order, and if there is more than one, “Client” is a reference to each Client jointly and severally.

“Goods” means all goods, items, equipment and plant mentioned in the order, written or verbal, placed by the Client and issued to the Business or on an invoice issued by the Business.

“Price” means the Price payable for the Works as agreed between the Business and the Client.

“Site” means the address where Works may be carried out, as agreed between the Business and the Client.

“The Act” means the Competition and Consumer Act 2010

“Works” means all work performed by the Business at the Clients request.