1. Definitions

   1. “Contract” means the terms and conditions contained herein, together with any quotation, order, invoice or other document or amendments expressed to be supplemental to this Contract. 

   2. “Kirk & Co. Auto” shall mean Hayden Horst Kirk T/A Kirk & Co. Auto, its successors and assigns or any person acting on behalf of and with the authority of Hayden Horst Kirk T/A Kirk & Co. Auto.

   3. “Client” means the person/s, entities or any person acting on behalf of and with the authority of the Client requesting Kirk & Co. Auto to provide the Services as specified in any proposal, quotation, order, invoice or other documentation, and:

      1. if there is more than one Client, is a reference to each Client jointly and severally; and

      2. if the Client is a partnership, it shall bind each partner jointly and severally; and

      3. if the Client is a part of a trust, shall be bound in their capacity as a trustee; and

      4. includes the Client’s executors, administrators, successors and permitted assigns.

   4. “Parts” means any Parts, documents, designs, drawings or materials supplied, consumed, created or deposited incidentally by Kirk & Co. Auto in the course of it conducting, or supplying to the Client, any Services.

   5. “Services” means all Services supplied by Kirk & Co. Auto to the Client at the Client’s request from time to time.

   6. "Confidential Information” means information of a confidential nature whether oral, written or in electronic form including, but not limited to, this Contract, either party’s intellectual property, operational information, know-how, trade secrets, financial and commercial affairs, contracts, client information (including but not limited to, “Personal Information” such as: name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) and pricing details.

   7. “Price” means the price payable (plus any GST where applicable) for the Services as agreed between Kirk & Co. Auto and the Client in accordance with clause 3 of this Contract.

   8. “GST” means Goods and Services Tax as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).

 

1. Acceptance

   1. The parties acknowledge and agree that:

      1. they have read and understood the terms and conditions contained in this Contract; and

      2. the parties are taken to have exclusively accepted and are immediately bound, jointly and severally, by these terms and conditions if the Client places an order for or accepts delivery of the Services.

   2. In the event of any inconsistency between the terms and conditions of this Contract and any other prior document or schedule that the parties have entered into, the terms of this Contract shall prevail.

   3. Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties. 

   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 Kirk & Co. Auto nor to withhold payment of any invoice because part of that invoice is in dispute. Once in receipt of an invoice for payment, if any part of the invoice is in dispute, then the Client must notify Kirk & Co. Auto in writing within three (3) business days, the invoice shall remain due and payable for the full amount, until such time as Kirk & Co. Auto investigates the dispute claim, no credit shall be passed for refund until the review is completed. Failure to make payment may result in Kirk & Co. Auto placing the Client’s account into default and subject to default interest in accordance with clause 8.1.

   5. In the event that the Parts and/or Services provided by Kirk & Co. Auto are the subject of an insurance claim that the Client has made, then the Client shall be responsible for the payment of any monies payable to the insurance company and agrees to honour their obligation for payment for such transactions invoiced by Kirk & Co. Auto and shall ensure payment is made by the due date irrespective of whether the insurance claim is successful.

 

1. Price and Payment

   1. Time for payment shall be seven (7) days following the date of the invoice provided by Kirk & Co. Auto to the Client upon placement of an order for the Parts/Services. 

   2. All tow and/or salvage fees by a third-party provider will be charged to the Client and will be in addition to the Price. 

   3. Interest on overdue invoices shall accrue from the date when payment becomes due daily until the date of payment at a rate of 2.5% per calendar month and shall accrue at such a rate after as well as before any judgment.

   4. Where the Client has left their vehicle with Kirk & Co. Auto for servicing/repair then the Client agrees to pay reasonable storage charges if their vehicle has not been collected within two days after the Client has been advised by Kirk & Co. Auto that servicing/repairs have been completed.

   5. Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to Kirk & Co. Auto an amount equal to any GST Kirk & Co. Auto must pay for any supply by Kirk & Co. Auto under this or any other agreement for the sale of the Parts. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition, the Client must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.

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1. Risk

   1. Kirk & Co. Auto will accept no responsibility for valuables or other items left in the Client’s vehicle. It is the Client’s responsibility to remove any valuables from the Client’s vehicle prior to servicing/repair. 

   2. Risk of damage to or loss of the Parts passes to the Client on Delivery and the Client must insure the Parts on or before Delivery.

   3. If any of the Parts are damaged or destroyed following delivery but prior to ownership passing to the Client, Kirk & Co. Auto is entitled to receive all insurance proceeds payable for the Parts. The production of these terms and conditions by Kirk & Co. Auto is sufficient evidence of Kirk & Co. Auto’s rights to receive the insurance proceeds without the need for any person dealing with Kirk & Co. Auto to make further enquiries.

 

1. Title

   1. The Client acknowledges and agrees that the Client’s obligations to Kirk & Co. Auto for the provision of Services shall not cease, and ownership of the Parts shall not pass, until:

      1. the Client has paid Kirk & Co. Auto all amounts owing for the Services; and

      2. the Client has met all other obligations due by the Client to Kirk & Co. Auto in respect of all contracts between Kirk & Co. Auto and the Client.

   2. Receipt by Kirk & Co. Auto 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, and until then Kirk & Co. Auto’s rights and ownership in relation to the Parts, and this Contract, shall continue.

   3. It is further agreed that, until ownership of the Parts passes to the Client in accordance with clause 3.5:

      1. the Client is only a bailee of the Parts and must return the Parts to Kirk & Co. Auto on request; 

      2. the Client holds the benefit of the Client’s insurance of the Parts on trust for Kirk & Co. Auto and must pay to Kirk & Co. Auto the proceeds of any insurance in the event of the Parts being lost, damaged or destroyed; 

      3. the Client must not sell, dispose, or otherwise part with possession of the Parts other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Parts then the Client must hold the proceeds of any such act on trust for Kirk & Co. Auto and must pay or deliver the proceeds to Kirk & Co. Auto on demand; 

      4. the Client should not convert or process the Parts or intermix them with other Parts but if the Client does so then the Client holds the resulting product on trust for the benefit of Kirk & Co. Auto and must sell, dispose of or return the resulting product to Kirk & Co. Auto as it so directs; 

      5. the Client irrevocably authorises Kirk & Co. Auto to enter any premises where Kirk & Co. Auto believes the Parts are kept and recover possession of the Parts; and

      6. Kirk & Co. Auto may commence proceedings to recover the Price, notwithstanding that ownership of the Parts has not passed to the Client.

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1. Personal Property Securities Act 2009 (“PPSA”)

   1. In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.

   2. Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Parts that have previously been supplied and that will be supplied in the future by Kirk & Co. Auto to the Client.

   3. The Client undertakes to:

      1. promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which Kirk & Co. Auto may reasonably require to;

         1. register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register; 

         2. register any other document required to be registered by the PPSA; or

         3. correct a defect in a statement referred to in clause 6.3(a)(i) or 6.3(a)(ii).

      2. indemnify, and upon demand reimburse, Kirk & Co. Auto for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Parts charged thereby;

      3. not register a financing change statement in respect of a security interest without the prior written consent of Kirk & Co. Auto;

      4. not register, or permit to be registered, a financing statement or a financing change statement in relation to the Parts in favour of a third party without the prior written consent of Kirk & Co. Auto;

      5. immediately advise Kirk & Co. Auto of any material change in its business practices of selling the Parts which would result in a change in the nature of proceeds derived from such sales.

   4. Kirk & Co. Auto and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.

   5. The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.

   6. The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.

   7. Unless otherwise agreed to in writing by Kirk & Co. Auto, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.

   8. The Client must unconditionally ratify any actions taken by Kirk & Co. Auto under clauses 6.3 to 6.5.

   9. Subject to any express provisions to the contrary nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA. 

 

1. Security and Charge

   1. In consideration of Kirk & Co. Auto agreeing to supply the Parts and/or provide its Services, the Client grants Kirk & Co. Auto a security interest by way of a floating charge (registerable by Kirk & Co. Auto pursuant to the PPSA) over all of its present and after acquired rights, title and interest (whether joint or several) in all other assets that is now owned by the Client or owned by the Client in the future, to the extent necessary to secure the repayment of monies owed under this Contract for provision of the Goods and/or Services under this Contract and/or permit Kirk & Co. Auto to appoint a receiver to the Client in accordance with the Corporations Act 2001 (Cth).  

   2. The Client indemnifies Kirk & Co. Auto from and against all Kirk & Co. Auto’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Kirk & Co. Auto’s rights under this clause.

   3. In the event that the Client defaults or breaches any term of this Contract and as a result, the security provided in clauses 5.1, 6.2 and 7.1 as applicable, is deemed insufficient by Kirk & Co. Auto to secure the repayment of monies owed by the Client to Kirk & Co. Auto, the Client hereby grants Kirk & Co. Auto a security interest as at the date of the default, by way of a charge, that enables the right and entitlement to lodge a caveat over any real property and or land owned by the Client now, or owned by the Client in the future, to secure the performance of the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money.

 

1. Default and Consequences of Default

   1. Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at Kirk & Co. Auto’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.

   2. If the Client owes Kirk & Co. Auto any money, the Client shall indemnify Kirk & Co. Auto from and against all costs and disbursements:

      1. incurred; and/or

      2. which would be incurred and/or

      3. for which by the Client would be liable;

in regard to legal costs on a solicitor and own client basis incurred in exercising Kirk & Co. Auto’s rights under these terms and conditions, internal administration fees, Kirk & Co. Auto’s contract fees owing for breach of these terms and conditions’, including, but not limited to, contract default fees and/or recovery costs (if applicable), as well as bank dishonour fees.

1. Further to any other rights or remedies Kirk & Co. Auto may have under this Contract, if a Client has made payment to Kirk & Co. Auto, and the transaction is subsequently reversed, the Client shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by Kirk & Co. Auto under this clause 7 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this Contract.

 

1. Cancellation

   1. Without prejudice to any other remedies the parties may have, if at any time either party is in breach of any obligation (including those relating to payment) under these terms and conditions (“the Breaching Party”) the other party may suspend or terminate the supply or purchase of Parts and/or Services to the other party, with immediate effect, by providing the Breaching Party with written notice. Neither party will be liable for any loss or damage the other party suffers because one of the parties has exercised its rights under this clause.

   2. If Kirk & Co. Auto, due to reasons beyond Kirk & Co. Auto’s reasonable control, is unable to deliver any Parts and/or Services to the Client, Kirk & Co. Auto may cancel any Contract to which these terms and conditions apply or cancel Delivery of Parts and/or Services at any time before the Parts and/or Services are delivered by giving written notice to the Client. On giving such notice Kirk & Co. Auto shall repay to the Client any money paid by the Client for the Parts and/or Services. Kirk & Co. Auto shall not be liable for any loss or damage whatsoever arising from such cancellation.

   3. The Client may cancel Delivery of the Parts and/or Services by written notice served within forty-eight (48) hours of placement of the order. If the Client cancels Delivery in accordance with this clause 9.3, the Client will not be liable for the payment of any costs of Kirk & Co. Auto, except where a deposit is payable. 

   4. Cancellation of orders for Parts made to the Client’s specifications, or for non-stocklist items, will not be accepted once production has commenced, or an order has been placed.

 

1. Privacy Policy

   1. All emails, documents, images or other recorded information held or used by Kirk & Co. Auto is Personal Information, as defined and referred to in clause 10.3, and therefore considered Confidential Information. Kirk & Co. Auto acknowledges its obligation in relation to the handling, use, disclosure and processing of Personal Information pursuant to the Privacy Act 1988 (“the Act”) including the Part IIIC of the Act being Privacy Amendment (Notifiable Data Breaches) Act 2017 (NDB) and any statutory requirements, where relevant in a European Economic Area (“EEA”), under the EU Data Privacy Laws (including the General Data Protection Regulation “GDPR”) (collectively, “EU Data Privacy Laws”). Kirk & Co. Auto acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Client’s Personal Information, held by Kirk & Co. Auto that may result in serious harm to the Client, Kirk & Co. Auto will notify the Client in accordance with the Act and/or the GDPR. Any release of such Personal Information must be in accordance with the Act and the GDPR (where relevant) and must be approved by the Client by written consent, unless subject to an operation of law.

   2. Notwithstanding clause 10.1, privacy limitations will extend to Kirk & Co. Auto in respect of cookies where the Client utilises Kirk & Co. Auto’s website to make enquiries. Kirk & Co. Auto agrees to display reference to such cookies and/or similar tracking technologies, such as pixels and web beacons (if applicable), such technology allows the collection of Personal Information such as the Client’s:

      1. IP address, browser, email client type and other similar details;

      2. tracking website usage and traffic; and

      3. reports are available to Kirk & Co. Auto when Kirk & Co. Auto sends an email to the Client, so Kirk & Co. Auto may collect and review that information (“collectively Personal Information”)

If the Client consents to Kirk & Co. Auto’s use of cookies on Kirk & Co. Auto’s website and later wishes to withdraw that consent, the Client may manage and control Kirk & Co. Auto’s privacy controls via the Client’s web browser, including removing cookies by deleting them from the browser history when exiting the site. 

1. The Client agrees for Kirk & Co. Auto to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) about the Client in relation to credit provided by Kirk & Co. Auto. 

2. The Client agrees that Kirk & Co. Auto may exchange information about the Client with those credit providers and with related body corporates for the following purposes:

   1. to assess an application by the Client; and/or

   2. to notify other credit providers of a default by the Client; and/or

   3. to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or

   4. to assess the creditworthiness of the Client including the Client’s repayment history in the preceding two years.

3. The Client consents to Kirk & Co. Auto being given a consumer credit report to collect personal credit information relating to any overdue payment on commercial credit.

4. The Client agrees that personal credit information provided may be used and retained by Kirk & Co. Auto for the following purposes (and for other agreed purposes or required by):

   1. the provision of Parts; and/or

   2. analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Parts; and/or

   3. processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or

   4. enabling the collection of amounts outstanding in relation to the Parts.

5. Kirk & Co. Auto may give information about the Client to a CRB for the following purposes:

   1. to obtain a consumer credit report; 

   2. allow the CRB to create or maintain a credit information file about the Client including credit history.

6. The information given to the CRB may include:

   1. Personal Information as outlined in 10.3 above;

   2. name of the credit provider and that Kirk & Co. Auto is a current credit provider to the Client;

   3. whether the credit provider is a licensee;

   4. type of consumer credit;

   5. details concerning the Client’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);

   6. advice of consumer credit defaults (provided Kirk & Co. Auto is a member of an approved OAIC External Disputes Resolution Scheme),overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Client no longer has any overdue accounts and Kirk & Co. Auto has been paid or otherwise discharged and all details surrounding that discharge(e.g. dates of payments);

   7. information that, in the opinion of Kirk & Co. Auto, the Client has committed a serious credit infringement;

   8. advice that the amount of the Client’s overdue payment is equal to or more than one hundred and fifty dollars ($150).

7. The Client shall have the right to request (by e-mail) from Kirk & Co. Auto:

   1. a copy of the Personal Information about the Client retained by Kirk & Co. Auto and the right to request that Kirk & Co. Auto correct any incorrect Personal Information; and

   2. that Kirk & Co. Auto does not disclose any Personal Information about the Client for the purpose of direct marketing.

8. Kirk & Co. Auto will destroy Personal Information upon the Client’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this Contract or is required to be maintained and/or stored in accordance with the law. 

9. The Client can make a privacy complaint by contacting Kirk & Co. Auto via e-mail. Kirk & Co. Auto will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Client is not satisfied with the resolution provided, the Client can make a complaint to the Information Commissioner at www.oaic.gov.au. 

 

1. Unpaid Seller’s Rights

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

      1. a lien on the item; and

      2. the right to retain or sell the item, such sale to be undertaken in accordance with any legislation applicable to the sale or disposal of uncollected goods.

   2. The lien of Kirk & Co. Auto shall continue despite the commencement of proceedings, or judgment for any monies owing to Kirk & Co. Auto having been obtained against the Client.

 

1. General

   1. The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable, that provision shall be severed from this Contract, and the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.

   2. These terms and conditions and any contract to which they apply shall be governed by the laws of New South Wales and are subject to the jurisdiction of the courts in that state. These terms prevail over all terms and conditions of the Client (even if they form part of the Client’s purchase order).

   3. Where applicable, nothing in this Contract is intended to have the effect of contracting out of the Competition and Consumer Act 2010 (CCA). 

   4. Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm, national or global pandemics and/or the implementation of regulation, directions, rules or measures being enforced by Governments or embargo, including but not limited to, any Government imposed border lockdowns (including, worldwide destination ports), etc, (“Force Majeure”) or other event beyond the reasonable control of either party. This clause does not apply to a failure by the Client to make a payment to Kirk & Co. Auto, once the parties agree that the Force Majeure event has ceased.

   5. Both parties warrant that they have the power to enter into this Contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this Contract creates binding and valid legal obligations on them. 

   6. The rights and obligations of the parties will not merge on completion of any transaction under this Contract, and they will survive the execution and delivery of any assignment or other document entered, for the purpose of, implementing any transaction under this Contract.

   7. If part or all of any term of this Contract is or becomes invalid, illegal or unenforceable, it shall be severed from this Contract and shall not affect the validity and enforceability of the remaining terms of this Contract.