1. Definitions

In these Terms:
ACL means the Australian Consumer Law Schedule to the Competition and Consumer Act 2010 (Cth) and its associated regulations as amended.
Agreement means any agreement for the provision of Goods or Services by Gradys to the Customer.
Consumer is as defined in the ACL and in determining if the Customer is a consumer, the determination is made if Customer is a consumer under the Agreement.
Customer means the person, corporation or association, jointly and severally if more than one, acquiring Services from Gradys.
Delivery means delivery of the vehicle by Gradys in accordance with these Terms and as directed by the Customer.
GST has the meaning given in A New Tax System (Goods and Services Tax) Act 1999 (Cth) and its associated Regulations as amended.
Gradys means Gradys Autos Transport Pty Ltd ACN 159 652 301 and any related body corporate, successor or assign.
Purchase Order means Gradys’ order document for Services communicated to Gradys by the Customer.
Services means services supplied by Gradys to the Customer.
Terms means these Terms of Trade as varied or amended from time to timE

 

2. BASIS OF AGREEMENT
 

2.1
Unless otherwise agreed by Gradys in writing, these Terms apply exclusively to every Agreement and cannot be varied or replaced by any other terms, including the Customer’s terms and conditions of purchase (if any).
2.2
An Agreement is accepted by Gradys when Gradys accepts, in writing or by electronic means, an offer from the Customer or provides the Customer with the Services.
2.3
Gradys has absolute discretion to refuse or accept any offer.
2.4
Without limiting other ways in which the Customer may enter into these Terms with Gradys, the Customer may sign and return this document (or a copy of this document), or by giving or continuing to give Gradys instructions in which case the Customer will be deemed to have accepted these Terms.
2.5
The Customer must provide Gradys with its specific requirements, if any, in relation to the Services.
2.6
Gradys may vary or amend these Terms by written notice to the Customer at any time. Any variations or amendments will apply to orders placed after the notice date.
2.7
The entire agreement between Gradys and the Customer for the provision of Services is constituted by:
(a)
these Terms;
(b)
any other terms and conditions (including Specifications) incorporated by reference in the Purchase Order as long as the Supplier has notice of those terms and conditions;
(c)
any other terms and conditions which are imposed by law and which cannot be excluded; and
(d)
any agreed written variation.
 

3. PRICING

3.1
Unless advised in writing by Gradys, prices for Services are set out in the quote and the Customer is deemed to have read and understood the pricing.
3.2
Prices quoted for the supply of Services exclude GST and any other taxes or duties imposed on or in relation to the Goods and Services.
3.3
If the Customer requests a variation to the Services or where there is otherwise any change in the costs incurred by Gradys in relation to the Services, Gradys may vary its price to take account of any such change, by notifying the Customer.
3.4
Where there is any variation to the price of the Services, Gradys will not continue to supply the Services unless and until the Customer has expressly authorised the variation.
 

4. PROVISION OF SERVICES

4.1
Gradys is a vehicle transport and storage provider. Gradys is not a common carrier, do not accept any liability as a common carrier, and may refuse to provide Services to you or a vehicle for any reason.
4.2
The Customer warrants and represents to Gradys that:
(a)
the Customer has provided Gradys with all relevant information regarding the Services required and any information provided to Gradys by the Customer in accordance with these Terms is true, correct and complete;
(b)
it has provided all information to Gradys on the damage to the vehicle and all damage to the vehicle must be visible from a distance of 1 metre including in a photo;
(c)
Gradys relies on the details supplied by the Customer, but we do not admit their accuracy or completeness. Gradys signature on the contract or vehicle condition report is only an acknowledgement that Gradys has picked up or received the vehicle;
(d)
Gradys contracts as agent for our employees, agents, and subcontractors and any exclusions or limitations of liability apply to those employees, agents and subcontractors to the same extent as if they were parties to this Agreement;
(e)
If the vehicle is unable to be started due to a flat battery, Gradys will jump start the vehicle or replace the battery and all costs associated will be passed on to the Customer;
(f)
The vehicle has full comprehensive insurance and Gradys will not transport any vehicle that does not have full comprehensive insurance coverage.
4.3
Prior to Gradys accepting the vehicle for transport, the Customer acknowledges the condition of the vehicle by undertaking a joint survey, including photos, and accepts the vehicle condition report by:
(a) signing the vehicle condition report;
(b) or if the Customer does not sign the vehicle condition report, it is deemed accurate in all material
respects.

 

5. PAYMENT

5.1
Unless otherwise agreed in writing:
(a)
Gradys may, at its sole discretion, require the payment of a deposit by the Customer;
(b)
subject to clause 5.1(c), full payment must be made within 30 days of the date of Gradys’ invoice; and
(c)
Gradys reserves the right to require payment in full prior to or on Delivery and/or the supply of Services.
5.2
Gradys, by reason of providing the Services, has a lien over the vehicle to the extent of the price and any other monies payable to Gradys by the Customer. In accordance with clause 11.3, the Customer agrees that Gradys will be entitled to its repairer's lien and charge market related storage costs for the vehicle until all amounts owing to Gradys by the Customer have been paid in full.
5.3
Payment by cheque is not deemed made until the proceeds of the cheque have cleared.
5.4
Payment terms may be revoked or amended at Gradys’ sole discretion immediately upon giving the Customer written notice.
5.5
The time for payment is of the essence.
 

6. PAYMENT DEFAULT

6.1
If the Customer defaults in payment by the due date of any amount payable to Gradys, then all money which would become payable by the Customer to Gradys at a later date on any account, becomes immediately due and payable without the requirement of any notice to the Customer, and Gradys may, without prejudice to any of its other accrued or contingent right:
(a)
charge the Customer interest on any sum due at the prevailing rate pursuant to the schedule 2 of the Court Procedures Rules ACT 2006 plus 2% for the period from the due date until the date of payment in full;
(b)
charge the Customer for, and the Customer must indemnify Gradys from, all costs and expenses (including without limitation all bank charges and legal costs and expenses) incurred by it resulting from the default or in taking action to enforce compliance with the Agreement or to recover outstanding payments for Services;
(c)
cease or suspend supply of any further Services to the Customer;
(d)
by written notice to the Customer, terminate any uncompleted Agreement or other contract with the Customer.
6.2
Clauses 6.1(c) and 6.1(d) may also be relied upon, at Gradys’s option:
(a)
where the Customer is a natural person and becomes bankrupt or enters into any scheme of arrangement or any assignment or composition with or for the benefit of his or her creditors or any class of his or her creditors generally; or
(b)
where the Customer is a corporation and, it enters into any scheme of arrangement or any assignment or composition with or for the benefit of its creditors or any class of its creditors generally, or has a liquidator, administrator, receiver or manager or similar
functionary appointed in respect of its assets, or any action is taken for, or with the view to, the liquidation (including provisional liquidation), winding up or dissolution without winding up of the Customer.
 

7. RISK AND INSURANCE

7.1
The risk in the vehicle and all insurance responsibility for theft, damage or otherwise will pass to the Customer immediately on Delivery.
7.2
The Services are provided to the Customer on the basis that the Customer has obtained all necessary licences or permits under all relevant laws and regulations in relation to the Services.
7.3
The Customer assumes all risk and liability for loss, damage or injury to persons or to property of the Customer or third parties arising out of the use or possession of any vehicle transported by Gradys, unless recoverable from Gradys on the failure of any statutory guarantee under the ACL.
 

8. PERFORMANCE OF AGREEMENT

 

8.1
Any period or date for of the Services stated by Gradys is an estimate only and not a contractual commitment.
8.2
Gradys will use its reasonable endeavours to meet any estimated dates performance of the Services but will not be liable for any loss or damage suffered by the Customer or any third party for failure to meet any estimated date.
 

9. COLLECTION AND DELIVERY

9.1
Where Gradys cannot safely access the location of the vehicle, the Customer agrees that Gradys may drive the vehicle for up to 30 kilometres to enable it to be collected and loaded onto Gradys’ truck.
9.2
Gradys will arrange for the Delivery to the Customer.
9.3
The Customer indemnifies Gradys against any loss or damage suffered by GRADYS, its sub-contractors or employees as a result of Delivery, except where the Customer is a consumer and Gradys has not used due care and skill.
9.4
If Delivery is attempted and is unable to be completed, the Customer is deemed to have taken Delivery. The Customer is liable for storage charges payable monthly on demand.

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10. WARRANTY AND LIABILITY
 

10.1
Except as otherwise required by law or as specifically stated in these Terms or any express warranty provided in relation to the Services, the Agreement does not include by implication any other term, condition or warranty in respect of the quality, merchantability, acceptability, fitness for purpose, condition, description, assembly, manufacture, design or performance of the Services or any contractual remedy for their failure.
10.2
If the Customer is a consumer nothing in these Terms restricts, limits or modifies the Customer's rights or remedies against Gradys for failure of a statutory guarantee under the ACL.
10.3
The Customer confirms the vehicle will be inspected upon Delivery by Gradys and that, should the Customer take Delivery, the Customer is deemed to be satisfied that the Services conform in all respects with Agreement and were rendered to the Customer's satisfaction.
10.4
Except as otherwise provided by law, Gradys’
maximum liability to the Customer is the refund of the price of the Services or the resupply of the Services, at Gradys’ sole discretion.
10.5
Gradys is not liable for any indirect or consequential losses or expenses suffered by the Customer or any third party, howsoever caused, including but not limited to loss of turnover, profits, business or goodwill or any liability to any other party, except to the extent of any liability imposed by the ACL.
10.6
Gradys does not accept any liability for the vehicles that are over the age of 30 years.
10.7
Gradys accept no liability for any accessories fitted to the vehicle which includes, without limitation, wind deflectors, aerials, spoilers.
10.8
The Customer acknowledges and warrants that:
(a)
it has not relied on any service involving skill and judgement, or on any advice, recommendation, information or assistance provided by Gradys in relation to the Services or their use or application.
(b)
it has not made known, either expressly or by implication, to Gradys any purpose for which it requires the Services and it has the sole responsibility of satisfying itself that the Services are suitable for the use of the Customer;
(c)
Gradys is not responsible for the cleanliness of the vehicle;
(d)
there will be no dangerous goods in the vehicle including any goods, articles or substances that which are or may become a risk to, health, safety, property, or the environment (but not goods inherently part of a vehicle like petrol in the tank or LP gas connected to the vehicle);
(e)
The vehicle can be moved under its own power, has working brakes, and windows are intact; and
(f)
The vehicle has a minimum ground clearance of 200mm all around.
10.9
Nothing in the Terms is to be interpreted as excluding, restricting or modifying or having the effect of excluding, restricting or modifying the application of any State or Federal legislation applicable to the sale of Services which cannot be excluded, restricted or modified.
 

 

11. GENERAL WARRANTIES

11.1
The Customer must comply, at the Customer’s own expense, with any recommendations and guidelines provided by Gradys with respect to the Services.
11.2
The Customer must promptly inform Gradys of any errors or faults in the operation of any aspect of the provision of the Services.
11.3
The Customer represents and warrants to Gradys that there is no agreement or security interest in relation to the Customer’s goods which prohibits the establishment of a lien by Gradys.
11.4
The Customer warrants and acknowledges that if the vehicle suffers any mechanical fault while in transit, all repairs will be at the Customer’s cost and Gradys accepts no liability for any mechanical fault.
 

12. CANCELLATION

 

12.1
If Gradys is unable to supply the Services, then it may cancel the Customer's order (even if it has been
accepted) by written notice to the Customer.
12.2
No purported cancellation or suspension of an order or any part of it by the Customer is binding on Gradys once the order has been accepted.
12.3
In the event that Gradys accepts the Customer’s request to cancel the supply of Services, the Customer will be liable to Gradys for the costs of the Services to the extent that they have been provided, including any components which have been purchased to render the Services and any related costs as well as a non-refundable administration fee of $55 (inclusive of GST).
12.4
In the event that the vehicle is not ready for collection at the time nominated or is not driveable, a fee of $125 (plus GST) will be charged to the Customer.
12.5
In the event that the Customer fails to collect a vehicle held in storage within 5 days of the agreed collection date, a storage fee of $25 per day will be charged.
 

13. TERMINATION

13.1
Gradys may immediately terminate these Terms or any Contract in whole or in part by giving written notice to the Customer if:
(a)
the Customer fails or refuses to comply with any lawful directions given by Gradys;
(b)
the Customer commits a serious or persistent breach of any of the provisions of these Terms;
(c)
the Customer or any member of the board of directors or business partners of the Customer is convicted of any offence involving fraud or dishonesty or any other offence which is punishable by imprisonment (whether that person is imprisoned or not);
(d)
the Customer has a receiver, receiver and manager, administrator, liquidator or similar functionary appointed or if a petition or application is presented for the appointment of such a person;
(e)
the Customer is unable to pay its debts as they fall due or compounds with its creditors or assigns any of its assets for the benefit of creditors; or
(f)
the Customer’s business, or part of its business, is sold or is about to be sold to a third party, or the control of the Customer changes to the extent that the owner of the Customer at the time these Terms are entered into loses control or is about to lose control.
13.2
Gradys may terminate the unexecuted portion of a Agreement in whole or in part by written notice at any time for reasons other than those listed in clause 13.1.

 

14. SHORTAGES AND EXCHANGES

14.1
Except as otherwise provided by law and subject to clauses 14.2 and 14.3, Gradys will not be liable for any shortages, damage or non-compliance with the specifications in the Agreement unless the Customer notifies Gradys with full details and description within 10 days of Delivery otherwise the Customer is deemed to have accepted the Services.
14.2
When any shortages, claim for non-compliance with the Agreement specifications is accepted by Gradys, Gradys may, at its option, resupply the Services, or refund the price of the Services.
14.3
If the Customer is a consumer, nothing in this
clause 14 limits any remedy available for a failure of any of the consumer guarantees under the ACL.
 

15. FORCE MAJEURE

15.1
Gradys is not liable in any way howsoever arising under the Agreement to the extent that it is prevented from acting by events beyond its reasonable control including, without limitation, industrial disputes, strikes, lockouts, accident, breakdown, import or export restrictions, acts of God, acts or threats of terrorism or war. If an event of force majeure occurs, Gradys may suspend or terminate the Agreement by written notice to the Customer.

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16. GUARANTEE

16.1
In consideration of Gradys offering this Agreement to the Customer, where the Customer is a corporation, each director of the Customer (“Guarantor”) agrees to guarantee the payment of the fees for Services in respect of this Agreement on the terms set out in this clause.
16.2
When the Customer, as a corporation enters this Agreement, the directors are deemed to have accepted the terms of this clause unless notified otherwise to Gradys.
16.3
The Guarantor/s agrees to guarantee the payment of the fees for Services in respect of this Agreement and indemnify Gradys for the fees and any costs incurred by Gradys to recover the fees not paid.
16.4
The Guarantor/s agree and acknowledge that Gradys does not have to exhaust any remedy available to Gradys against the Customer before calling on this guarantee.
16.5
The Guarantor/s agree that the guarantee applies to every Agreement for Services between Gradys and the Customer.

 

17. NOTICES
 

All notices provided under this Contract:

17.1
must be in writing and signed by the sending Party or its Representative;
17.2
must be directed to the attention of the person and at the address notified by the receiving party from time to time, and will be effective in the following manner:
(a)
in the case of delivery in person, when delivered;
(b)
where posted, two Business Days after the date of posting; and
(c)
where sent by facsimile or email transmission, at the time recorded on the sent message receipt,
however if the notice is received after 5:00pm on a day that is not a Business Day, notice will be taken to be received at 9:00am on the following Business Day.
17.3
A notice must be in writing and handed personally or sent by email, facsimile or prepaid mail to the last known address of the addressee. Notices sent by pre-paid post are deemed to be received upon posting. Notices sent by facsimile or email are deemed received on confirmation of successful transmission.
 

18. MISCELLANEOUS

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18.1
The law of the Australian Capital Territory applies from time to time governs these Terms. The parties agree to the non-exclusive jurisdiction of the courts of Australian Capital Territory, the Federal Court of Australia, and of courts entitled to hear appeals from
those Courts.
18.2
Gradys’s failure to enforce any of these Terms shall not be construed as a waiver of any of Gradys’s rights.
18.3
If a clause is unenforceable it must be read down to be enforceable or, if it cannot be read down, the term must be severed from these Terms, without affecting the enforceability of the remaining terms.

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