Motomech Mobile Mechanics
Terms and Conditions
1 Interpretation
(a) In this Agreement:
Agreement means these Terms and Conditions, any Credit Application, the Orders, invoices and any other documents referred to in
these documents.
Business Day means a day that is not a Saturday, Sunday or public holiday in the place where the Goods are provided.
Credit Application means the application by the Customer to Motomech to open a trading account incorporating these Terms and
Conditions and requesting Motomech to supply to the Goods.
Customer means the company or other entity set out in the Credit Application or any other company, entity or individual placing an Order.
Goods means the goods supplied by Motomech to the Customer under the Agreement.
Motomech means Motomech Mobile Mechanics Pty Ltd ACN 611 936 040.
Order means any order for Goods and Services placed by the Customer for the supply of Goods and/or Services by Motomech.
PPSA means the Personal Property Securities Act 2009 (Cth).
Price means the price for the Goods and/or Services agreed to by the parties and specified in the relevant invoice including all other
charges as shown in the relevant invoice.
Security Interests means a mortgage, caveat, charge, lien, pledge, security, interest, title retention arrangement, preferential right, trust
arrangement, encumbrance, contractual right of set off, any security arrangement in favour of any person or any security arrangement
which is deemed to be a security interest for the purposes of the PPSA.
Services means the installation and maintenance services provided by Motomech to the Customer as specified in an Order.
(b) In this Agreement, unless the context requires otherwise:
(i) the singular includes the plural and vice versa;
(ii) headings are for reference only and do not affect the interpretation of this Agreement;
(iii) a reference to any legislation includes a reference to any proclamation, order, amendments or modification made under that legislation;
(iv) “include”, “includes” and “including” means “includes without limitation”;
(v) a reference to:
(A) a person includes that person’s legal personal representatives, successors, assigns;
(B) “$” or “dollars” is a reference to Australian currency unless otherwise agreed; and
(C) a clause is a reference to a clause of this Agreement; and
(vi) if the date on or by which any payment must be made or notice given under this Agreement is not a Business Day, it must be made or
given on or by the next Business Day.
2 Provision of Goods and Services
(a) By ordering the Goods and/or Services referred to in an Order, the Customer agrees to be bound by this Agreement.
(b) These Terms and Conditions apply in every case where Motomech supplies Goods and/or Services of any kind to the Customer.
(c) These Terms and Conditions prevail to the extent they are inconsistent with any trading terms or other communication provided by the
Customer to Motomech.
3 Inspection and acceptance
(a) The Customer must inspect the Goods and Services upon completion of the Services.
(b) If the Customer believes the Goods are damaged or do not conform with an Order or the Services were not provided in accordance with
industry standards, the Customer must notify Motomech within seven (7) days of completion of the Services.
(c) If Motomech has not received any written notice from the Customer within the seven (7) day period set out above, the Customer is deemed
to have accepted the Goods and the Services.
4 Title and risk
(a) Risk in the Goods passes to the Customer when the Goods are delivered or installed (whichever is earliest).
(b) Title in the Goods passes to the Customer upon payment of the Price.
5 Price, invoicing and payment
(a) The Customer must pay the Price on or before the due date specified in the invoice issued by Motomech for the Goods and/or Services.
(b) In addition to the Price, the Customer will pay any GST or other taxes related to, or arising out of, the supply of the Goods by Motomech
(c) The Price is fixed and will not be subject to variation for rise and fall, exchange rate variations or any other variation.
6 Liability
(a) Subject to clause 7 of these Terms and Conditions, the liability of Motomech under or arising out of the sale and supply of the Goods and
Services or for breach of any term, condition or warranty implied in or imposed upon the sale and supply of Goods or Services by law, is
limited at the option of Motomech to the replacement of the Goods or the repair of the Goods and/or rectification of the Services.
(b) The warranties provided by the Motomech to the Customer are limited to the warranties provided by the manufacturer of the Goods except
that Motomech gives no warranties and assumes no liabilities whatsoever in relation to:
(i) any parts or goods provided by the Customer to Motomech for use or installation in connection with the Services; and
(ii) any second-hand or used parts used where necessary in connection with the Services.
(c) Each party is liable for and must indemnify the other party and keep the other party indemnified from and against any liability and any loss
or damage of any kind whatsoever arising out of or in connection with any negligent act, negligent omission or breach of this Agreement
by that party.
(d) Neither party is liable to the other party for any loss of use, loss of revenue, loss of profit, loss of product or production, business
interruption, loss of business opportunity, loss of savings, loss of use of capital or loss of goodwill arising out of or in connection
with this Agreement.
(e) Each indemnity in this Agreement is a continuing obligation, separate and independent from the other obligations of the parties, and
survives termination, completion or expiration of this Agreement.
7 Consumer law
(a) If the Customer is a “consumer” under the Australian Consumer Law as set out in schedule 2 of the Competition and Consumer Act 2010
(Cth) (Consumer Law), the following notice applies:
Our goods and services come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a
replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled
to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.
(b) Any warranty provided under these Terms and Conditions is in addition to any other rights and remedies available to a consumer under the
Consumer Law.
(c) If the Consumer Law applies and the Customer has a claim, the Customer must in accordance with clause 3 of these Terms and Conditions
notify Motomech at:
Motomech Mobile Mechanics Pty Ltd
PO Box 158, Muchea WA 6501
Tel: 0431 335 119
8 Default and consequences of default
(a) If the Customer fails to make any payment when due:
(i) all other amounts owing to Motomech become immediately due and payable;
(ii) Motomech may withhold any further supply of Goods and Services and may cancel all outstanding Orders;
(iii) the Customer must pay interest on the amount of the overdue payment calculated daily at the rate of two percent (2%) per month from
the date payment is due until the date it is paid in full;
(iv) Motomech may enforce its Security Interest including in accordance with clause 10 of these Terms and Conditions;
(v) Motomech has the right (and the Customer authorises Motomech) to enter any premises where the Goods, and any goods, equipment,
vehicles or machinery into which the Goods have been installed, are located, to retake possession or remove any such Goods,
equipment, vehicles or machinery.
(vi) the Customer indemnifies Motomech, its representatives and employees against any costs, claim, action or damage arising from the
Customer’s default of this Agreement.
(b) This Agreement may be terminated at any time upon the agreement by the parties in writing.
(c) Unless expressly stated otherwise, termination of this Agreement for any reason does not affect the rights or obligations of a party which
have accrued prior to termination.
9 Dispute resolution
(a) If a party alleges a dispute has arisen between the parties (Dispute), then that party must give notice to the other party identifying and
providing details of the Dispute.
(b) Within 14 days after service of the notice of dispute, the parties must meet and, confidentially and in good faith, attempt to resolve the
Dispute.
10 Security Interest
(a) Property and ownership in any Goods remains with Motomech until all amounts owing by the Customer to Motomech have been paid in full.
(b) In this clause:
(i) accession, financing statement, purchase money security interest, proceeds and verification statement have the meanings given to them
by the PPSA; and
(ii) PPSR means the Personal Property Securities Register established under section 147 of the PPSA.
(c) To secure all of its obligations under this Agreement, the Customer grants to Motomech a Security Interest in the Goods and any goods,
equipment, vehicles or machinery into which the Goods have been installed.
(d) The Security Interest created under clause 10(c):
(i) will continue in the Goods until title passes to the Customer pursuant to this Agreement; and
(ii) attaches to the proceeds of the Goods.
(e) The Customer acknowledges that Motomech is entitled to register a financing statement on the PPSR to perfect Motomech’s Security
Interests created under these Terms and Conditions.
(f) The Customer must do all things required by Motomech to ensure that Motomech’s Security Interest is perfected, enforceable and has the
highest priority possible under the PPSA.
(g) The Customer must not:
(i) grant, allow to exist or agree to any Security Interest in the Goods other than the Security Interest created under this Agreement; or
(ii) sell, remove or otherwise deal with the Goods until title has passed to the Customer in accordance with these Terms and Conditions.
(h) Motomech may enforce its Security Interests arising under these Terms and Conditions immediately upon the occurrence of a default of the
terms of this Agreement
(i) The Customer grants to Motomech a license to enter onto any premises of the Customer for the purpose of enforcing the Security Interest.
(j) The Customer acknowledges that under the PPSA:
(i) Motomech’s Security Interest in the Goods is a purchase money security interest and automatically attaches to any proceeds of
the Goods;
(ii) Goods that are installed into any vehicles, equipment or machinery owned by the Customer are accessions for the purposes of the
PPSA and Motomech’s Security Interest continues in the Goods despite being installed in or forming part of any such vehicle,
equipment or machinery; and
(iii) if the Customer defaults under this Agreement, Motomech is entitled to remove the Goods from the Customer’s vehicle, equipment
or machinery in accordance with the PPSA.
(k) The Customer waives its right to receive any notice under the PPSA (including the right to receive a verification statement in accordance
with section 157 of the PPSA) unless the notice is required by the PPSA and the right to receive it cannot be waived by the Customer, or
otherwise excluded.
11 General
(a) This Agreement constitutes the entire agreement between the Customer and Motomech in respect of the Goods and Services.
(b) Any failure of any party to exercise any right under this Agreement does not operate as a waiver and the single or partial exercise of any
right by that party does not preclude any other exercise of that or any other right by that party.
(c) This Agreement is governed by the laws of Western Australia.
(d) No variation to this Agreement is effective unless made in writing and signed by each party.
(e) Any provision of this Agreement which is found to be invalid is invalid only to the extent of the invalidity and does not invalidate the
remainder of this Agreement.