Terms and Conditions

1. DEFINITIONS AND INTERPRETATIONS

1.1 Definitions

In this Repair Authority agreement, the following italicised expressions shall have the following meanings:

• claim means any cost, expense, loss, damage, claim, action, proceeding or liability whatever and however arising (including legal costs on a full indemnity basis).
• Client Instructions means the express or implied instructions from the Client to provide Services.
• Client means any person or business described on the front page of the Repair Authority form as the “Client” to or for whom Finch provides Services, including (where the context permits) the Owner of the Vehicle.
• Deposit means the amount specified as the “Deposit” on the front page of the Repair Authority form to be paid by the Client on presentation of a deposit invoice by Finch. Finch will retain the Deposit until the Final Instalment Invoice to satisfy the Client’s obligations under or in connection with these Terms.
• Final Instalment Invoice means the last Finch invoice that accounts for any outstanding amounts owed by the Client to Finch under the Terms.
• Finch means Finch Motor Company Pty. Ltd., trading as Finch Restorations, ABN 48 602 085 941.
• Goods means all or any part of the goods or materials supplied to the Client including automotive parts, tyres, oils, and lubricants as part of the Services provided.
• GST means any tax imposed on the Supply under A New Tax System (Goods and Services Tax) Act 1999.
• Owner means the owner of the Vehicle to which, or in respect of which, Finch provides any Services.
• PPSA means the Personal Property Securities Act 2009.
• Services means services of any kind relating to the repair, maintenance, refitting, improvement, inspection, testing, storage, transport, handling, or delivery of the Vehicle and includes (without limiting the generality of the foregoing) the supply, installation and/or fitting of Goods as specified on the front page or such other services agreed between the Client and Finch from time to time.
• Terms means these terms and conditions being the Repair Authority agreement and includes the front page and any special conditions attached.
• variation means a change in the scope of the Services.
• Vehicle means the vehicle defined on the front page as well as all the Vehicle’s component parts.

Other italicised words are defined on the front page of the Repair Authority.

2. GENERAL TERMS

2.1 Performance

a. Finch will undertake the tasks necessary to provide the Services to the Client within a reasonable time. Where a duration for performance and/or time for delivery is provided, it is only an estimate and not a guarantee.

b. Finch shall not be liable for any delay in that respect even where the Client notifies Finch that time is of the essence.

c. Finch may by notice to the Client, 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 Client, Owner, or any other person. Without limiting the generality of the foregoing, Finch may refuse to provide any Services where:

i. Client Instructions are unclear or ambiguous.

ii. the Client Instructions conflict with the directions or instructions of the Owner of the Vehicle.

iii. Finch considers it would be at risk, for whatever reason, should it perform the Services.

d. Where Finch refuses to provide any Services in accordance with sub-clause (b) the Client shall be liable for all costs and outlays incurred by Finch in relation to the Services provided up to the point of refusal.

e. Finch may, without liability to the Client (whether in contract, tort or otherwise), suspend the performance of the Services for such period and on such terms as it decides from time to time.

2.2 Deviation from Client’s Instructions

a. Subject to sub-clause (b) and (c), Finch will take reasonable steps to perform the Client’s Instructions.

b. Finch or third parties may, in their sole discretion, depart from the Client’s Instructions in any way without prior notice to the Client and without incurring any liability to the Client, Owner or any other Person.

c. Finch 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 Client and without incurring any liability to the Client, Owner or any other Person.

2.3 Services in Conjunction

The provision of the Services by Finch may be undertaken in conjunction with the provision of Services to other clients or third parties.

2.4 Insurance

No insurance will be effected specifically in respect of the Vehicle, except upon express instructions given in writing by the Client and agreed to by Finch, and where insurance is effected, it will be at the Client’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, Finch is not under any obligation to effect separate insurance on any Vehicle but may declare it on any open or general policy held by Finch. If Finch agrees to arrange insurance, it will do so only as agent for the Client.

2.5 Vehicle at Risk of Client

While Finch will use reasonable care to protect the Vehicle from damage, theft or destruction, the Vehicle remains at the Client’s or Owner’s risk at all times. Finch shall be under no liability to the Client or Owner in damages or otherwise for any loss, damage, delay, or any cause whatsoever.

2.6 Special Delivery Arrangements

a. Except by prior written agreement, any Client Instructions relating to the delivery or release of Vehicles in specified circumstances are accepted by Finch only as agent for the Client if third persons are engaged to effect compliance with the Client Instructions.

b. Finch accepts no liability arising from the types of arrangements referred to in sub-clause (a).

2.7 Finch – Liberties

a. Unless specifically agreed in writing between the Client and Finch prior to the commencement of the Services, Finch may provide the Services as a principal or procure its agents or contractors to provide all or any part of the Services.

b. Finch 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.

c. Finch reserves its right to determine the means and procedures to be followed in the provision of Services.

d. Finch will be deemed to have delivered the Vehicle once the Client (or its nominee) takes possession of the Vehicle.

2.8 Intellectual Property

a. All intellectual property rights in and to all materials and inventions vest in Finch upon creation of the materials and inventions respectively.

b. The Client grants to Finch a royalty-free, irrevocable, world-wide, perpetual, licence in respect of any photographs taken by Finch or the Client in relation to the Vehicle, including the right to sub-licence.

2.9 Selection of Services

a. The Client agrees that  (i) the Client has selected the Services based on its own requirements and investigations as to the suitability of the Services; and (ii) Finch has not provided the Client with any advice as to the suitability of the Services. Finch gives not warranty, advice, or representation as to:

i. the suitability of the Services for the Client’s or a third parties end use, needs or requirements. This applies even if the Client informs Finch or Finch can reasonably infer the intended use of the Services; and

ii. whether the Services will comply with any law or standard including which applies to the use the Client intends to make of the Services.

b. The Client indemnifies Finch from any claims by third parties in respect of the Services (including any claims by third parties that the Services are is defective, not suitable for the intended use or because the Services does not have the characteristics required by such third parties).

3. CUSTOMER'S WARRANTIES

3.1 Ownership

The Client warrants that the Client is either the Owner or has the authority of the Owner to contract with Finch for the Services.

4. INDEMNITY

The Client irrevocably indemnifies Finch including its directors, officers and employees against all claims suffered or incurred by or brought, made, or recovered by any person (including, without limitation, the Client’s officers, employees and agents or the Owner) against, Finch in connection with:

i. the performance or purported performance of the Services (whether in contract, tort (including, without limitation, negligence) or otherwise);

ii. any breach of these Terms by the Client;

iii. any act or omission by the Client, its officers, employees, and agents (whether negligent or otherwise);

iv. any damage or destruction of property (including, without limitation, that of the Client’s officers, employees, agents, and Clients) in connection with the performance of the Services; and

v. any injury, disease, or death of persons (including, without limitation, the Client’s officers, employees, and agents) in connection with the performance of the Services.

4.2 Information Indemnity

Except under special arrangements previously made in writing, advice and information which is not related to Client Instructions accepted by Finch is provided gratuitously and without liability. Advice and information, in whatever form it is given, is provided by Finch for the Client only and the Client will upon notice by Finch forthwith indemnify Finch against any claim arising out of any person relying on such advice or information.

5. LIABILITY

5.1 Time Bar

Notice of any claim by the Client against Finch in respect of any Service must be given within three days of the date of provision of the Service. In any event, Finch will be discharged of all liability in respect of any Service provided for the Client or the Owner unless a claim is brought within nine months from the date of any event or occurrence alleged to give rise to a cause of action against Finch.

5.2 Exclusion of Liability

To the extent permitted by law, Finch 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 Client, including:

i. any loss or damage to or deterioration of the Vehicle;

ii. any delay or failure to deliver the Vehicle to the Client for any reason;

iii. the negligence, wilful act or default of Finch or any other person;

iv. the conversion or misappropriation of the Vehicle by the wilful misconduct of Finch' servants or agents,

v. any loss or damage however arising from the Goods supplied, fitted, or installed to the Vehicle in the course of providing Services.

5.3 Limits of Liability

a. To the extent that liability has not been effectively excluded by clause 5.2, Finch's 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 Competition and Consumer Act 2010 for loss or damage caused to or suffered by the Client:

• in the case of services, the supply of the services again or the payment of the cost of having the services supplied again; or
• in the case of Goods, (i) the replacement of the Goods or the supply of equivalent Goods or the repair of the Goods, or (ii) the payment of the cost of replacing the Goods or of acquiring equivalent Goods or of the cost of having the Goods repaired.

b. For the purposes of this clause 5.3, the value of the Vehicle is its value at the place and time it is delivered to Finch for the purpose of the relevant Services or at the place and time they should have been delivered.

6. ESTIMATES

Any estimates provided by Finch:

i. are not to be interpreted as fixed price quotations.

ii. are not to be considered as the ‘best-case’ or ‘worst-case’ bounds.

iii. are only an indication of confidence levels as used in the US Air Force Cost Risk and Uncertainty Analysis Handbook and at best be considered at a 70% confidence level on a Weibull-Rayleigh probability distribution.

iv. are only an indication of the labour component exerted by Finch employees exclusive of materials, consumables, subcontracted activities, project management, parts-sourcing, and GST. 

7. PRICING

The pricing for labour undertaken by Finch employees is to be based on time records of employee activities multiplied by the hourly rates specified on the front page of these Terms.

8. PAYMENTS

8.1 Invoicing

a. In consideration for the proper performance of the Services, on presentation of Finch invoices the Client will pay Finch a series of progress payments and a final payment.

b. Finch shall submit progress invoices to the Client that include a complete description of the Services supplied, and the work done during the period covered by the invoice.

c. Finch shall submit a Final Instalment Invoice for the final payment due prior to collection or delivery of the Vehicle.

d. Without limiting sub-clause (a), the Client will pay each invoice for the Services within seven days unless otherwise agreed in writing.

e. The Client may not withhold payment of any amount which Finch disputes is payable and can set-off from any payment to the Client any amount the Client owes Finch under this agreement or otherwise.

f. If for whatever reason, all or any part of an invoice is still unpaid 30 days after the date of the invoice, Finch may by notice add simple interest on the unpaid amount in accordance with the following formula:

SI = UA x GIC x D

where:

SI = simple interest amount;

UA = the unpaid amount;

GIC = the general interest charge rate determined under section 8AAD of the Taxation Administration Act 1953 (Cth) on the day payment is due, expressed as a decimal rate per day; and

D = the number of days from the day after payment was due up to and including the day that payment is made, where the day that payment is made means the day when payment is received and cleared in Finch’s bank account.

g. If Finch must take action to recover the payments and/or interest in subclauses (a), (b) and (c), the Client shall also pay Finch's actual legal costs and outlays of and incidental to the recovery action on a full indemnity basis.

h. In the event of rescheduling as a result of default in payment, or at the direction of the Client, then storage fees will be charged. Storage charges will commence from the date of due payment, or date of direction of the Client, and will continue until the outstanding amount is paid, upon direction of the Client to recommence work.

8.2 Collection of GST

a. Prices for the Services unless stated will be exclusive of GST.

b. The Client must pay GST on an invoice as and when the Client is required to pay the invoice.

c. If the Services are subject to any tax, duty levy or other government or statutory charge which is imposed on a portion of the Services (including import duties but excluding income and capital gains taxes) the prices will be adjusted accordingly.

8.3 Deposit

a. If specified in the front page of these Terms, the Client must pay the Deposit to Finch as a condition of Finch providing the Services.

b. Finch must use the Deposit to satisfy the Client’s obligations under or in connection with these Terms including payment of the Final Instalment Invoice.

c. No interest nor GST is payable on the Deposit. Applicable GST will be payable on the Final Instalment Invoice when the Deposit is applied as part of the consideration for the supply of the Services.

8.4 Lien

a. Finch 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 8.1 from the Client 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 Client and apply the proceeds in or towards the payments or other sums due and payable to Finch under sub-clause 8.1.

b. Upon accounting to the Client for any balance remaining after payment of any such sum due to Finch and the costs of sale and disposal, Finch will be discharged from any liability whatsoever in respect of the Vehicle, Goods or documents.

c. In the event of storage charges occurring, Finch are a Warehouseman for the purpose of the Warehouse Liens and Storage Act 1990 and for that purpose shall have the right to sell any such good by public auction or private treaty, in compliance with the provisions of that Act.

8.5 Retention of Title to Goods

Notwithstanding any arrangement between the Client and Finch regarding credit, the title to and property in Goods at any time sold by Finch to the Client shall not pass to the Client until all monies owed by the Client to Finch have been paid in full to Finch and the title and property in any such Goods shall remain solely with Finch until such payment as aforesaid. Pending payment of all monies due to Finch, the following shall apply:

i. The Client shall hold the Goods as trustee for Finch;

ii. The Client shall not mortgage or pledge the Goods to any person;

iii. The Client 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 Finch;

iv. The Client shall pay the monies received by it and arising from the sale of the Goods to Finch 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 Client as aforesaid which is equal to the monies owing to Finch for the Goods shall never become the property of the Client and shall be held in trust by him for Finch;

v. The Client shall retain records in relation to the purchase and sale of the Goods;

vi. Finch 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.

8.6 Security Interest

a. The Client grants Finch a security interest in the Goods, the Vehicle and any proceeds of sale of the same as security for the Client’s obligation to make payments for Goods and Services supplied to the Client but which are not fully paid for. The Client agrees to do anything (such as obtaining consents, signing, and producing documents, getting documents completed and signed and supplying information) which Finch asks and considers necessary for the purposes of:

i. ensuring that the security interest is enforceable, perfected and otherwise effective including as a purchase money security interest as that term is defined in PPSA;

ii. enabling Finch to apply for any registration, or give any notification, in connection with the security interest so that the security interest has the priority required by Finch; and

iii. enabling Finch to exercise its rights in connection with the security interest.

b. Where possible, the Client agrees to waive its rights with respect to receipt of any notices under the PPSA including the right to receive a verification statement under section 157 of the PPSA.

8.7 Cheques

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 Client's bank.

9. LAW AND JURISDICTION

9.1 Law

The Services undertaken pursuant to and the interpretation of these Terms are governed by the law of the State of South Australia.

9.2 Alternative Dispute Resolution

a. 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 agreed by the parties or approved by the Motor Trades Association of South Australia or, failing agreement, appointed by the President of the Law Society of South Australia.

b. The Parties shall bear equally the cost of the mediator but shall otherwise bear their own costs of the mediation.

c. 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.

d. The Parties will use their best endeavours to resolve any such dispute or claim at the mediation.

9.3 Jurisdiction

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 Adelaide in the State of South Australia and the Client irrevocably submits himself, herself, or itself to the jurisdiction of the Courts in the State of South Australia.

9.4 Contra Proferentem

This agreement is not to be interpreted against Finch merely because it was prepared by Finch.

10. SEVERANCE

If any provision in the Terms is unenforceable, illegal, or void, then it is severed, and the rest of the Terms remain in force.

11. WAIVER

No failure by Finch 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 Finch of any right, power or remedy preclude any other or further exercise of that or any right power or remedy.

12. FORCE MAJEURE

If by reason of any fact, circumstance, matter, or thing beyond the reasonable control of Finch including labour disputes, obtaining labour, materials or goods, destruction or damage to the premises of Finch or a relevant work site, Finch is unable to perform in whole or in part any obligation under these Terms, Finch shall be relieved of that obligation to the extent and for the period that it is so unable to perform and shall not be liable to the Client in respect of such liability.

13. TERMINATION

a. Finch may terminate this agreement immediately if the Client breaches it and may recover any loss or damage resulting from the Client’s breach including all costs and expenses incurred by Finch to complete the Services.

b. Finch may terminate if the Client is a natural person and commits an act of bankruptcy under the Bankruptcy Act 1966 or becomes an insolvent under administration within the meaning of section 9 of the Corporations Act 2001 (as amended or replaced from time to time) or there is, in Finch's opinion, a material adverse change in the Client's financial position that gives Finch reasonable grounds for believing that the Client may be unable to fully and promptly perform its obligations under the Terms.

c. Finch may terminate this agreement at any time by five days’ notice to the Client, even if the Client is not in breach.

d. Termination does not affect any of Finch’s rights or remedies existing before termination or arising from termination.

14. ASSIGNMENT

The Client may not assign its rights under these Terms without Finch’s prior written consent.

15. SPECIAL CONDITIONS

Special conditions set out on the second page of this Repair Authority form part of this agreement and prevail over the balance of this agreement to the extent of any inconsistency.