Effective date: 14 February 2022
1 INTRODUCTION
1.1. Capital S.M.A.R.T Repairs Australia Pty Ltd (ABN 47 143 462 748) (Capital S.M.A.R.T) is a motor vehicle repairer that specialises in performing high quality repairs to driveable vehicles that have sustained low to medium collusion damage. The Terms and Conditions will be made available to you before you sign the Capital S.M.A.R.T Costs Estimate. By signing the Capital S.M.A.R.T Cost Estimate, you, as the Customer accept these Terms and Conditions.
1.2. The Customer acknowledges and agrees that it was referred to Capital S.M.A.R.T by AAI Limited or its affiliates (Suncorp) and Capital S.M.A.R.T is, or will be, undertaking repairs for the Customer in accordance with the pre-existing motor repair services agreement (MRSA) entered into with Suncorp (Suncorp Repairs). Notwithstanding, any Private Work to be undertaken by Capital S.M.A.R.T under these Terms and Conditions will be separate, and in addition, to the Suncorp Repairs and the MRSA will not apply to the provision of such Private Work.
2 ESTIMATES, PRICES AND PAYMENT
2.1. We will provide to you in writing an estimate of the cost and scope of all Private Work to be undertaken with respect to your Vehicle (Cost Estimate). The Cost Estimate will be discussed with you prior to Private Work being commenced on your Vehicle. Cost Estimates will remain valid for one (1) day. All prices will be exclusive of GST unless otherwise stated.
2.2. If you agree to proceed with the Private Work to your Vehicle, you authorise Capital S.M.A.R.T to perform the Private Work detailed in the Cost Estimate, and to supply and fit any parts required.
2.3. In the event that Capital S.M.A.R.T during the course of the repair finds that additional work is necessary, which would cause the Cost Estimate to be exceeded, we will contact you to explain the additional work required and seek your permission for the additional costs to be incurred before proceeding with the additional works to your Vehicle.
2.4. We will provide a detailed tax invoice outlining the Private Work carried out and associated costs when the Private Work is completed. Payment must be made by you in full on or before collection of the Vehicle. We accept credit cards or EFTPOS.
3 DEFAULT INTEREST
You acknowledge that if you fail to pay some or all of the total price stated in the tax invoice, you will pay us interest on the unpaid amount charged at the rate of 10% per annum from the date that the tax invoice is issued until the date of payment.
4 LIABILITY
4.1. Certain State and Commonwealth legislation, including the Competition and Consumer Act 2010 (Cth), imply warranties or conditions or impose guarantees or obligations which cannot be excluded, restricted, or modified except to a limited extent. This Agreement does not purport to exclude any statutory rights available to you and must be read subject to those statutory provisions. Other than those statutory provisions, we exclude all conditions and warranties which may be implied by law.
4.2. To the maximum extent permitted by law, our liability for breach of any implied warranty or condition which cannot be excluded is restricted, at our option to, in the case of services supplied or provided by us, either:
(a) the re-supply of those services; or
(b) the payment of the cost of having those services re-supplied
4.3. Notwithstanding the foregoing and subject to clause 8.7, Capital S.M.A.R.T will not be liable for any defects (to the maximum extent permitted by law) arising from or in connection with the Private Work, to the extent that Capital S.M.A.R.T has remedied the defects within a reasonable period of time from the date the Customer provides notice to Capital S.M.A.R.T setting out the substance of the defective Private Work .
4.4. To the maximum extent permitted by law, we will not be liable to you or any third parties for:
(a) any claim, whether that claim arises in contract, tort (including negligence) or statute;
(b) any loss (including loss of profits or special, indirect, incidental or consequential loss); or
(c) any damage, injury or death to any person or property, arising out of or relating to services performed by us except to the extent that any such claim, loss, damage, injury or death directly was caused by our fraud or wilful misconduct.
5 MATTERS OUTSIDE OUR CONTROL
We will not be liable for any delay in performing, or any failure to carry out Private Work to your Vehicle to the extent that such delay or failure results from events or circumstances outside our reasonable control.
6 PARTS
We will wherever possible endeavour to use genuine parts supplied or recommended by the manufacturer of the Vehicle, however, we will determine the parts to be used (in our sole and absolute discretion), unless specifically directed otherwise by you before the commencement of the Private Work.
7 RISK
7.1 We will conduct the Private Work taking all necessary steps to avoid loss or damage to the Vehicle.
7.2 If despite taking such steps, the Vehicle is lost or damaged while in our possession, you release us from all liability for such loss or damage to the Vehicle.
8 WARRANTIES
8.1. The Capital S.M.A.R.T provides a warranty for parts and paints used in the repair service for the period of the manufacturer’s or supplier’s warranty.
8.2. The warranty in clause 8.6 shall be for a period of 3 years from the date on which Capital S.M.A.R.T provides its tax invoice for the Private Work in accordance with clause 2.4.
8.3. Capital S.M.A.R.T uses high quality parts that meet or exceed the manufacturer’s specifications for the Vehicle.
8.4. If a new or re-conditioned part is not available for your Vehicle, Capital S.M.A.R.T can fit a second-hand part.
8.5. If carrying out this Private Work requires Capital S.M.A.R.T to purchase additional parts or provide labour not covered by the part’s manufacturer’s guarantee, there may be an additional charge and you will be notified of this before the Private Work commences.
8.6. Subject to clause 8.7, the Capital S.M.A.R.T warranty covers the following:
If any component of the Private Work is defective or is incorrectly fitted by Capital S.M.A.R.T, or found to be defective during the relevant warranty period, we will rectify the defective Private Work at no charge. This is subject to the fact that parts fitted under the Capital S.M.A.R.T warranty will only be covered for the remainder of the original warranty period as stated in clause 8.2, which commences from the date of the initial invoice under clause 2.4.
8.7. The Capital S.M.A.R.T warranty does not cover any of the following:
(a) if you remove the part or parts originally fitted by Capital S.M.A.R.T to the Vehicle.
(b) if the part or parts are damaged by misuse or accident, in particular by engine backfire or malfunction;
(c) if warranty work is performed elsewhere, unless the work has been authorised in writing by Capital S.M.A.R.T in advance of any work being undertaken; and
(d) Customer supplied parts will not be covered by the warranty.
8.8. Capital S.M.A.R.T will not reimburse you for any costs that you may incur claiming the warranty.
9 GENERAL
9.1. This Agreement contains the entire agreement between the parties.
9.2. This Agreement is governed by the law of Victoria and the parties submit to the non-exclusive jurisdiction of the Victorian courts.
9.3. A right under this Agreement may only be waived in writing. Failure to, delay in or partial exercise of a right does not constitute a waiver.
9.4. A waiver of a breach of a provision of this Agreement is not a waiver of any other breach of that provision, or a waiver of any breach of another provision.
9.5. A provision of this Agreement that is wholly or partly invalid or unenforceable will be treated as removed from this Agreement. Any removal of a provision will not affect the validity or enforceability of the remaining provisions.
9.6. Neither party may assign any contract made under this Agreement without the other’s prior written consent.
10 PRIVACY
You agree to be bound by Capital S.M.A.R.T Privacy Policy available at https://www.capitalsmart.com.au/privacy-policy/.
11 INTERPRETATION
Unless otherwise indicated by context:
(a) words importing the singular include the plural and vice versa;
(b) headings are for convenience only and do not affect the interpretation of this Agreement;
(c) where any word or phrase is given a definite meaning in this Agreement, any part or speech or other grammatical form of that word or phrase has a corresponding meaning;
(d) an expression importing a natural person includes a body corporate, partnership, joint venture, association or other legal entity;
(e) a reference to a statute, statutory provision or regulation includes all amendments, consolidations or replacements thereof;
(f) a reference to a party to a document includes that party’s successors and permitted assigns; and
(g) a covenant or agreement on the part of two or more persons binds them severally.
12 DEFINITIONS
Agreement means these Terms and Conditions.
Cost Estimate has the meaning given in clause 2.1.
Customer means the person/s or entity named in the Cost Estimate and includes their personal representatives, successors and administrators.
Repairer means Capital S.M.A.R.T and includes where relevant any contractor engaged by Capital S.M.A.R.T to effect any part of the Private Work.
Vehicle means the vehicle owned or in the possession of the Customer as detailed in the Cost Estimate.
Private Work means the labour, parts and materials to be supplied by the Repairer to effect the repairs to the Vehicle as contemplated by clause 1.2, but specifically excludes the Suncorp Repairs.