These Vehicle Services Conditions set out the terms on which Services will be provided by us to you and form part of the Services Agreement.  We will provide the Services in accordance with the Services Agreement for the term specified in the Services Agreement.

1.     General

1.1.  These terms and conditions form part of the contract (“Agreement”) between Top Care Automotive PTY LTD (ACN 677 154 755) as trustee for the Caltieri Family Trust (ABN 22 778 129 853) (“we” or “us” or “our”) and the customer (“you”) that is formed when:

(a)    you sign the form attached that describes services that we will perform (“Customer Authorisation”); or

(b)    you leave your vehicle key at reception or with an authorised team member, or you leave the key in your vehicle and advise us that you have done so, and by doing so you also authorise us to perform the agreed services (or amended services as a result of updated instructions from you) on your vehicle (also a Customer Authorisation in the alternative).

2.     Definitions

“Abandoned Goods” means vehicles which have not been accepted for delivery and remain in our possession for 28 days after the date of arrival at the delivery destination, or in the case of Vehicle storage Services, 28 days after the end of the storage term.

“Charges” means our quoted charges for the Services calculated under our rates schedule or other agreed rates, taxes, duties and government charges levied on the Services and any other amounts under clauses 4.2, 6.1, 6.2, 6.3, 7.2, 7.3 and 7.4.

“Dangerous Goods” mean any articles or substances which are, or may become a risk to health, safety, property, or the environment as defined in the Australian Dangerous Goods Code current as at the date of the Services Agreement (but excluding substances located in the fuel tank of a Vehicle, including petrol, diesel and LP gas).

“Fair, Wear and Tear” means damage or deterioration resulting from normal use and exposure, not as a result of an act or omission by us.  An initial inspection will be conducted by us prior to commencing any Services on the Vehicle.  Any obvious damage or marks will be recorded on the Service Agreement notes and/or photographed at the time.

“Force Majeure Event” means circumstances outside our reasonable control causing delays or inability, wholly or in part, to perform any obligations under this Agreement, including without limitation, fire, storm (including hail), flood, earthquake, wildlife impact, explosion, accident, road or rail closures, road works, breakdown of equipment or infrastructure, rail derailment, wharf delays, war, terrorism, sabotage, epidemic, quarantine restriction, labour dispute or shortage, act or omission of any third party, person or public authority.

“Goods” means personal items and effects.

“Hidden Defect” means a defect or fault in a Vehicle that is not visible at the time of inspection for the purpose of issuing our Vehicle Condition Report, and which is the cause of or contributes to any damage, deterioration, or wastage to a Vehicle.

“Modifications” means, including but not limited to, the fitting of bull bars, roof racks or special fittings whether or not included on the Vehicle at the time of purchase by you.

“Service Period” means the period commencing when you sign or are otherwise deemed to have accepted the Vehicle Condition Report/Service Agreement and ending on the delivery or handover of the Vehicle.

“Services” means the agreed operations and services to be performed by us.

“Services Agreement” means the agreement (inclusive of any booking confirmation, pricing schedule or schedule of particulars) between us and you in relation to the provision of the Services.

“Vehicle(s)” means the car(s), motorcycle(s), trailer(s), machinery, equipment or item(s) picked up or accepted from you or on your behalf.

“Vehicle Condition Report” has the meaning set out in clause 3.4.

“Vehicle Services Conditions” means these terms and conditions.

3.     What You Need to Know About us and Our Services

3.1.  We rely on the details and information you supply and we do not admit the accuracy or completeness of the details or information and will not liable if the Vehicle is not correctly described.

3.2.  Our provision of the Services commence when we, or our agent, pick up or accept the Vehicle and you sign or are deemed to have accepted the Vehicle Condition Report.

3.3.  You acknowledge and agree that our employees, agents and subcontractors can rely on the provisions of the Services Agreement (including any exclusions or limitations of liability we have) to the same extent as us and we hold such benefit on trust for our employees, agents and subcontractors.

3.4.  When we collect or accept the Vehicle from you, we will examine the Vehicle and may take photographs to prepare a Vehicle Condition Report.

3.5.  You acknowledge the condition of the Vehicle by undertaking a joint survey with our representative/driver at point of uplift/drop off or delivery/collection noting any damage on the Vehicle Condition Report and accept the Vehicle Condition Report by:

(a)    signing the Vehicle Condition Report; or

(b)    if you do not sign the Vehicle Condition Report, then it is deemed accurate in all material respects.

4.     Dangerous Goods

4.1.  You must not tender for Services of, and you warrant that the Vehicle does not contain any Dangerous Goods.

4.2.  If you leave any Dangerous Goods in the Vehicle we may, at your expense, dispose of or destroy them as we see fit in our absolute discretion or take such other action as we consider necessary to mitigate any risk that may be caused by the Dangerous Goods.

5.     Your Promise

5.1.  You promise us that:

(a)    you are either the owner or the authorised agent of the owner of the Vehicle and any Goods and have authority to enter into the Services Agreement;

(b)    you have fully and accurately described the Vehicle;

(c)    all information you have provided to us is accurate and true and that you will provide us with any further information we reasonably require for the purpose of providing the Services to you;

(d)    any Goods (including without limitation accessories (other than permanently factory fitted accessories), personal items and effects) have been removed from the Vehicle;

(e)    all Goods are at your risk at all times, and we exclude all liability for any loss or damage caused to them including any loss or damage arising from our negligence;

(f)     the Vehicle:

(i)     can be safely handled and transported;

(ii)    can be moved under its own power;

(iii)   has working brakes, windows are intact and there are no loose panels; and

(iv)   has a minimum ground clearance of 15 centimetres (unless otherwise agreed in writing);

(g)    you will comply with any directions, procedures or policies advised or notified by us or our associates to you or your associates with respect to packing, loading or unloading of the Vehicle or entry into, use of or egress from a site; and

(h)    you will ensure that any Goods in the Vehicle comply with these Vehicle Services Conditions (including without limitation clause 4).

5.2.  To the maximum extent permitted by law and except to the extent caused or contributed to by our negligent act or omission, you are liable and indemnify us and hold us, our agents, employees and subcontractors harmless from and against all claims (including any legal costs on a full indemnity basis) resulting directly or indirectly from:

(a)    a breach by you or your associates of any term of the Services Agreement;

(b)    damage to any real and personal property and any injury to or death of any person, caused by a negligent act or omission of you or your associates arising out of or in connection with our the Services Agreement; or

(c)    any other liability suffered or incurred by us arising out of or in connection with our provision of the Services under the Services Agreement,

including any damages for indirect loss, delay, loss of profit or business opportunity, relating to any amount payable under the Services Agreement or arising out of or in any way connected with any actual or alleged breach of any promise, obligation or warranty under the Services Agreement or any breach of Law.

6.     What We Can Do

6.1.  We may at your risk and expense refuse to provide some or all of the Services or provide them in a manner other than that previously agreed if we are required to do so by law or consider it necessary in the interest of safety.  If this is the case, we will promptly notify you and we will specify a reasonable period of time by which the Vehicle must be collected by you.

6.2.  If you fail to collect the Vehicle from us within 2 days of the agreed collection date or within 2 days after we notify you the Vehicle is available for collection, whichever is the later, we are entitled to charge for the storage of the Vehicle and we may remove the Vehicle to a storage facility, return the Vehicle to you or your associate or treat the Vehicle and any Goods as abandoned goods at your risk and expense.

6.3.  We may set-off or deduct from any payment due to you, any Charges you owe us.

6.4.  We can conduct a physical search or inspection of the Vehicle or any Goods, remove or reposition any Goods and refuse to accept your Vehicle if we consider that the Vehicle or any Goods do not comply with the Services Agreement or are otherwise dangerous.

7.     What We Can Do

7.1.  You must pay our Charges in accordance with the Services Agreement.

7.2.  You agree to pay us in full for all Services rendered and products supplied before removing your Vehicle from our premises, unless otherwise agreed.  You further agree that payment of all amounts for work contemplated by the Customer Authorisation (or as amended as a result of updated instructions from you), and (in the absence of manifest error) all amounts set out in the relevant invoice, become due upon completion of the work and must be paid by close of business on the day of completion of the work, unless we have agreed otherwise.

7.3.  You must pay interest at the rate under the Penalty Interest Rates Act 1983 (Vic) if any Charges are not paid on the due date.

7.4.  Unless otherwise expressly stated, all Charges payable under the Services Agreement are exclusive of GST.  If GST is payable, on any supply made under the Services Agreement, the recipient will pay to the supplier an amount equal to the GST payable on the supply.  The recipient must pay this amount in addition to and at the same time that the consideration for the supply is to be provided under the Services Agreement.

8.     Limitations and Exclusions on Our Liability to You

8.1.  Subject to this clause 8, Vehicles and any Goods are at your risk at all times and we exclude all liability for any loss or damage arising from the performance or non-performance of the Services other than any physical loss or damage to the Vehicle cause by our negligent act or omission, in which case our liability will be limited to (at our election):

(a)    the repair of the Vehicle or the payment of the cost of having the goods repaired;

(b)    in the case of Services, the resupply of the Services to the cost of having the Services resupplied.

For the avoidance of doubt, we will not be liable for any loss or damage to the Vehicle or any Goods arising for any reason including our negligent act or omission.

8.2.  Before we assume or accept any liability under clause 8.1, we may appoint an independent loss adjuster to determine the quantum of any loss or liability and you agree to accept any such determination or finding.