Terms & Conditions

Your privacy and AutoRMS

Contact us

AUTO RMS

STANDARD TERMS & CONDITIONS – OEM SUPPORT

 

BACKGROUND AND ACCEPTANCE

      1. These are the terms and conditions (“Terms”) under which we, AUTO REPAIR MANAGEMENT SOLUTIONS PTY LTD ACN 691 824 897 trading as Auto RMS, (“Auto RMS”, “we”, “us”, “our”) will provide goods and services to you in relation to our “OEM Support” service offerings. 

      2. In these Terms, a reference to “you” and “your” means in each case the vehicle OEM(s) who engage us to provide goods and services in relation to our “OEM Support” service offerings.

      3. By signing our engagement (whether physically or electronically), requesting or otherwise accepting the Services, you will be deemed to have accepted these Terms which form a legally binding agreement between you and us.

      4. These Terms (including all documents incorporated herein by reference), our Proposal, and any specific terms of a purchase order, tax invoice or other document that are either consistent with these Terms or expressly agreed upon by us in writing, constitute the entire contract between us relating to the provision of Services to you. 

      5. All our terms of use and policies, including our Privacy Policy, as published from time to time are incorporated into these Terms.

      6. In the event of a conflict, a Proposal issued by us takes precedence over these Terms, and a written contract covering the same subject matter signed by both of us takes precedence over both.

         

DEFINITIONS AND INTERPRETATION

    1. In these Terms:

Business Day means a day which is not a Saturday, Sunday or public holiday in Sydney, New South Wales.

Claim means a claim, action, demand, damage, loss, liability, cost, charge, expense (including legal costs on a full indemnity basis), outgoing, fine or payment.

Confidential Information means information of a confidential nature including information about its business, operations, strategy, formulas, inventions, know-how, technique, administration, technology, affairs, clients, customers, employees, contractors or suppliers, but does not include any information which is in the public domain other than through a breach of confidence.

Deliverables means all items specified as a deliverable in the Proposal and all items supplied by, or on behalf of, us in the course of, or relating to, the Services. 

Delivery Date means any date and time for delivery of the Services as stated in the Proposal or as otherwise advised by us from time to time.

Fees mean the amounts payable by you under these Terms for the Services, calculated in accordance with the Proposal.  

GST means a goods and services tax, or a similar value added tax, levied or imposed under the GST Law.

GST Law has the meaning given in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

Insolvency Event means the occurrence of any event of insolvency including a winding up application being made and not withdrawn within 21 days, a failure to comply with a statutory demand, the appointment of a provisional liquidator or administrator, the entering into of an arrangement with creditors, a voluntary winding up other than for the purpose of a bona fide corporate reconstruction, any inability to pay debts as and when they fall due, any admission of insolvency, any court order relating to any of the above or anything which occurs under the law of any jurisdiction which has a similar effect to any of the above.

Intellectual Property Rights means all present and future rights in relation to copyright, media, photographs, videos, fonts, trade marks, designs, formulas, know-how, strategy, patents, trade, business, company and domain names, confidential and other proprietary rights, and any other rights to registration of such rights whether created before or after the date of these Terms, and whether in Australia or otherwise.

Law means any applicable statute, regulation, by-law, ordinance, policy or subordinate legislation in force from time to time in Australia, whether made by a State, Territory, the Commonwealth or a local government, and includes the common law and equity as applicable from time to time, and any mandatory standards or industry codes of conduct.

Other Expenses means other fees, costs, expenses and charges, including travel costs, telecommunications expenses, postage, courier fees, photocopying fees and company and other search fees incurred by us in providing the Services, in addition to the Fees. 

Personnel means a party’s officers, employees,  agents, consultants, contractors and subcontractors.  

Pre-Existing Materials means all Intellectual Property Rights, things, materials, documents, information and items developed by or on behalf of you or us, respectively, independently of these Terms.

Privacy Laws means the Privacy Act 1988 (Cth) including the Australian Privacy Principles set out in the Act and any code approved by the Privacy Commissioner under the Privacy Act 1988 (Cth) which binds us or you and any laws giving rise to an actionable right of privacy.

Proposal means our proposal(s), quote(s) and/or pricing sheets issued to you with respect to the provision of Services by us under these Terms which are accepted by you. 

Related Entities has the meaning given to that term in s 9 of the Corporations Act 2001 (Cth). 

Services means the activities and services to be provided by us as described in the Proposal and includes the Deliverables.

Tax Invoice has the meaning given in the GST Law.

Variation Notice has the meaning given in clause 8.1.

Variation Quotation has the meaning given in clause 8.2.

  1. In these Terms, the following rules of interpretation apply unless the contrary intention appears:

    1. headings are for convenience only and do not affect the interpretation of these Terms;

    2. the singular includes the plural and vice versa;

    3. words that are gender neutral or gender specific include each gender;

    4. where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings;

    5. “includes” means without limitation;

    6. a reference to: 

      1. a person includes a natural person, partnership, joint venture, government agency, association, corporation or other body corporate;

      2. a party includes its successors and permitted assigns;

      3. a document includes all amendments or supplements to that document;

      4. a clause, term, party, schedule or attachment is a reference to a clause or term of, or party, schedule or attachment to, these Terms;

      5. these Terms include all schedules and attachments to it;

      6. an agreement other than these Terms include an undertaking, or legally enforceable arrangement or understanding, whether or not in writing; and

      7. a monetary amount is in Australian dollars;

    7. an agreement on the part of two or more persons binds them jointly and severally;

    8. when the day on which something must be done is not a Business Day, that thing must be done on the following Business Day; and

    9. no rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of these Terms or any part of it.

  • PROVISION OF SERVICES

      1. Non-Exclusive: Our engagement to provide the Services under these Terms is on a non-exclusive basis. 

      2. Times for performance: We will use all reasonable commercial efforts to complete the Services by the Delivery Date or at such times as may be agreed between you and us.

      3. Delay:  If we become aware that we will not be able to comply with a timeframe set out in the Proposal, we will notify you of the details of the possible delay, the cause of such delay and the period of any requested extension. In such circumstances, you will negotiate with us in good faith an extension to the timeframe in question. 

  • Manner of performance: We will ensure that the Services are performed in a careful, diligent, proper and efficient manner.

  • Place of work: We will provide the Services from the locations specified in the Proposal, our own premises or other facilities as agreed from time to time.

  • Equipment: Unless otherwise stated in a Proposal, we will provide, at our own expense, all equipment necessary to carry out the Services.

      1. Assistance: You will make available to us all reasonable assistance and documentation required for us to provide the Services in accordance with these Terms.

      2. Additional Services: We may from time to time agree for us to provide services in addition to the Services described in the Proposal (Additional Services). You shall pay us fees for the Additional Services in addition to the Fees calculated based on the rates notified by us from time to time. Any Additional Services will be covered by and form part of these Terms. 

PERSONNEL

      1. Our Personnel are employees or contractors of Auto RMS and are not your employees or contractors. 

      2. We reserve the right to substitute new Personnel where any assigned Personnel become unavailable (for whatever reason) or additional Personnel are required to complete the Services.  

OTHER EXPENSES 

      1. In providing the Services, we may incur Other Expenses. 

      2. We will charge you for any Other Expenses incurred by us for and on behalf of you. You must pay for the Other Expenses, including any GST, incurred by us on your behalf. 

      3. Upon our written request, you will provide us with payment in advance of us incurring an Other Expense on your behalf. 

INVOICING AND PAYMENT TERMS

      1. We will invoice you for the Fees in accordance with the payment terms stated in the Proposal, or otherwise from time to time as we see fit. 

      2. We will invoice you for any Other Expenses as incurred from time to time.

      3. We may from time to time review the Fees and will notify you in writing of any change to the Fees resulting some time review.  

      4. Subject to clause 7, unless otherwise specified in the Proposal or on the relevant invoice you will pay any invoice issued by us within 7 days from the date of that invoice.

      5. If you are late in making payment, without affecting our other rights, we may suspend delivery or cancel the provision of Services and charge you: 

        1. with respect to each outstanding invoice, a late-payment administration fee of $500 plus GST; and 

        2. interest on the amounts owing from the due date until the date paid, at the rate of 12% per annum or, if less, the maximum amount allowed by law.

DISPUTED INVOICES

      1. Any dispute raised by you in relation to our Services, the Fees or any invoice issued by us under these Terms must be referred to the dispute resolution procedure specified in clause 15. 

      2. We may elect at our absolute discretion to withhold performing any further Services in the event of a disputed invoice until such time as the disputed invoice is resolved.

      3. You must:

        1. pay any non-disputed amounts in accordance with this clause 7; and

        2. promptly pay any disputed amounts that are subsequently found to be correctly payable.

VARIATIONS

    1. You may by written notice to us request us to vary the scope of the Services to be supplied under these Terms, but only to the extent of a request to perform additional services or increase the frequency and/or duration of performance of all or any part of the Services (Variation Notice).

    2. Within 10 Business Days of receiving a Variation Notice, we will provide to you a written quotation (Variation Quotation) which details:

      1. the variation as requested by the Variation Notice;

      2. a variation to the Fees and payment terms; and

      3. all relevant specifications, time frames and operational requirements relating to the varied Services additional to but not inconsistent with those in the Variation Notice.

    3. You may by written notice to us:

      1. accept the Variation Quotation within 5 Business Days of it being sent; or

      2. reject the Variation Quotation within 5 Business Days of it being sent if that Variation Quotation has not already been accepted. 

    4. If you fail to accept or reject the Variation Quotation within 5 Business Days of it being sent by us, the Variation Quotation will be deemed to be accepted by you. 

    5. For the avoidance of doubt, you may request to vary the Services so as to:

      1. omit or reduce the scope of any part of the Services; or

      2. decrease the frequency and/or duration of performance of all or any part of the Services, 

however, we may accept or reject such a request at any time at our absolute discretion and clauses 8.1 to 8.4 will not apply to such a request. A failure by us to respond to such a request under this clause 8.5 within 10 Business Days of the request being made will be deemed a rejection of such a request.  

GST

      1. In this clause 9 terms used in this clause which are not defined in these Terms, but which are defined in the GST Law, have the meanings given in the GST Law.

  • Unless otherwise stated in these Terms, amounts payable, and consideration to be provided, under any provision of these Terms exclude GST.

  • If GST is payable on a supply made in connection with these Terms, the recipient must pay the person making the supply (Supplier) an amount equal to the GST payable on that supply at the time the recipient pays or provides any part of the consideration for the supply. The Supplier must provide a Tax Invoice to the recipient.

  • If an adjustment event arises in connection with a supply made in connection with these Terms:

        1. the Supplier must recalculate the GST payable to reflect the adjustment event;

        2. the Supplier must give the recipient an adjustment note as soon as reasonably practicable after the Supplier becomes aware of the adjustment event; and

        3. the adjustment amount must be paid without delay either by the recipient to the Supplier or by the Supplier to the recipient as the case requires.

  • Where a party (first party) must pay to another party (other party) an outgoing of the other party, the amount payable is the sum of:

        1. the amount of the outgoing less any input tax credit in respect of it to which the other party, or its GST group representative member, is entitled; and

        2. if the amount payable is subject to GST, an amount equal to that GST.

  • The provisions of this clause 9 do not merge on Completion.

INTELLECTUAL PROPERTY

      1. No change in ownership of the Intellectual Property Rights or Pre-Existing Materials of a party occurs as a consequence of these Terms or the provision of Services to you.

      2. You acknowledge and agree that: 

        1. we own, and shall at all times retain, all right, title and interest in the Intellectual Property Rights comprising the Services, including without limitation all Deliverables provided during the delivery of the Services, and all information contained therein; 

        2. you have no right, title or interest in any of our Intellectual Property Rights comprising the Services, except to use such Intellectual Property Rights for the sole purpose of benefiting from the Services provided in accordance with these Terms; and

        3. you will not, and you will not permit any person to, record, copy, reproduce or otherwise store and disseminate any of our Pre-Existing Materials or the Deliverables to any third-party without our prior written consent which may be withheld at our discretion.   

      3. All third-party subscriptions and licences for services, plug ins, software and/or media (including photos, videos and fonts) provided through the delivery of the Services are held by us (unless otherwise notified or stated in the Proposal). You shall not reuse or distribute the benefit of such subscriptions, plug ins, software and/or media (including photos, videos and fonts) unless approved by us in writing.

      4. Unless you give us written notice to the contrary, you herby authorise and consent to us displaying your trading name and/or trade marks and logo on our marketing materials, website and social media platforms for the purposes of marketing our business. 

CONFIDENTIALITY

      1. You must keep confidential, and not disclose, any of our Confidential Information except:

        1. as permitted under these Terms;

        2. with our prior written consent;

        3. to your officers, professional advisers, auditors, employees, contractors, sub-contractors and insurers, but only in the event those persons are subject to equivalent obligations of confidentiality with respect to such disclosed Confidential Information; or

        4. where you are compelled to do so by Law, provided that you give us written notice prior to disclosure.

      2. You must only use our Confidential Information for the purpose for which it was disclosed in connection with these Terms.

      3. You must:

        1. maintain effective security measures to protect all Confidential Information in your possession or control from unauthorised access, use, copying or disclosure; 

        2. notify us immediately in writing if you become aware of any anticipated, suspected or actual breach of this clause 11and take all reasonable steps required to prevent or stop that breach, at your expense; and

        3. reasonably assist us in connection with any action or investigation by us regarding any anticipated, suspected or actual unauthorised disclosure or misuse of the Confidential Information by you.

      4. Upon request from us, you must procure that your Personnel that are in direct or indirect connection with the performance of these Terms to execute a confidentiality undertaking, agreement or deed in the form acceptable to us.

PRIVACY 

      1. You must, and must ensure that your Personnel, comply with all Privacy Laws and not do or omit to do anything that you know, or have reasonable grounds to suspect or believe, would cause us or our Personnel to breach any Privacy Law.

      2. If and to the extent that you become aware of a breach of the Privacy Law by you or us in connection with the performance of the Terms, you will promptly and without undue delay notify us of such breach and its reasons for believing such breach has occurred.

THIRD PARTIES 

Our Services may, from time to time, contain links or directions to and from websites or software platforms which are owned or operated by third parties (Third Party Platforms). Third Party Platforms do not constitute sponsorship, approval or endorsement of the content, policies, practices or services offered by those parties unless expressly stated by us in writing. Third Party Platforms are governed by their own terms and conditions and privacy policies and we recommend that you make your own enquiries as to their terms.  We do not accept any liability for any information on, or the privacy practices of, any Third Party Platforms.

DISCLAIMER OF WARRANTY 

      1. We provide the Services and Deliverables on an “as is” basis. 

      2. To the extent permitted by law, we do not make any representation or warranty as to the accuracy, completeness, currency or reliability of the Services or the Deliverables.  Because some jurisdictions do not allow the exclusion of implied warranties, the above exclusion of implied warranties may not apply to you.

      3. Without limiting the above sub-clauses, the statements and conclusions contained in any report or certification delivered by us in course of providing the Services (Statements) constitutes our professional opinion only and to the extent permitted by law we do not warrant or make any representation as to the accuracy, completeness, currency or reliability of such Statements. 

      4. For the avoidance of doubt, and without limiting our rights under these Terms, you acknowledge and agree that any Statements cannot and will not be relied upon by you in the event of any warranty claim dispute arising between you and any third party.

PRODUCT WARRANTY CLAIMS

      1. To the maximum extent permitted by law, Auto RMS does not give any warranty, representation or undertaking to you or any third party in relation to any vehicles, goods, equipment, parts, materials or other products manufactured or supplied by you or a third party (OEM Products), whether or not such OEM Products are installed, commissioned, used, applied or referred to in connection with the Services.

      2. Any warranty claim, defect claim, recall claim, failure claim or other claim relating to the performance, quality, condition, merchantability, fitness for purpose, compliance or durability of any such OEM Products arising at any time must be made solely against the relevant OEM or third party supplier, and not against Auto RMS.

      3. Auto RMS has no liability for any loss, damage, cost or expense arising out of or in connection with any defect in, or failure of, any such OEM Products, except to the extent that such liability cannot lawfully be excluded or limited, or to the extent directly caused by our failure to perform the Services with due care and skill.

      4. Any warranty provided by you or a third party supplier in respect of the OEM Products is separate from, and does not form part of, any contract with Auto RMS for the Services.

INDEMNITY

      1. You agree to release and indemnify us and our Related Entities, officers, employees and agents (Indemnified Parties) from and against any Claim which any of the Indemnified Parties pays, suffers, incurs or is liable for arising out of or in connection with:

        1. any breach of these Terms by you;

        2. loss of, or damage to, any property to the extent caused or contributed to by any act or omission of you, your Personnel or any third party acting on your instructions;

        3. death or injury of any person to the extent caused or contributed to by any act or omission of you, your Personnel or any third party acting on your instructions; 

        4. any breach of Law by you, your Personnel or any third party acting on your instructions;

        5. any infringement, or alleged infringement, of a third party’s rights (including Intellectual Property Rights); 

        6. any act or omission of fraud, dishonesty, reckless or wilful misconduct or misrepresentation by you or your Personnel; and

        7. any third-party Claims we suffer or incur in relation to the Services, including third-party warranty claims in relation to OEM Products. 

LIMITATION OF LIABILITY 

      1. To the maximum extent permitted by law, we, nor any of our Personnel or Related Entities, will be liable for any loss, damage or injury whatsoever (including for negligence, death, injury or illness and special, indirect or consequential loss or damage such as loss of profits, loss of revenue, loss of goodwill, loss of opportunity, unavailability of systems or loss of data), whether in contract, tort or otherwise, arising from or in connection with:

        1. any act, omission or negligence or the use of, or reliance on, information, comments or opinions contained obtained through or in our Services or Deliverables;

        2. any Deliverables supplied by us; 

        3. the conduct or determinations of third-parties including in relation to third-party warranties claimed or relied upon by you or your Personnel in connection with the Services or the OEM Products; or

        4. these Terms or any breach of these Terms.

      2. You understand and agree that you are responsible for your own acts, omissions and negligence and if there are any consequences to your acts, omissions or negligence or through your use of the Services, that you will be responsible for those consequences.

      3. Because some countries, states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such countries, states or jurisdictions, Our liability shall be limited to the extent such limitation is permitted by law in the relevant country, state or jurisdiction. 

      4. We recognise that in some jurisdictions, you might have legal rights as a consumer. If you are using the Services for a personal purpose, then nothing in these Terms limits any consumer legal rights which may not be waived by contract.

INSURANCE

      1. During the Term, you and your Personnel must have sufficient policies of insurance in place (at your own cost) including:

        1. public and product liability insurance for no less than $20 million per occurrence and unlimited in the aggregate; 

        2. Workers Compensation insurance, as required under the relevant State and/or Territory laws; and

        3. any other insurances relevant to the Services which we consider appropriate (acting reasonably). 

DISPUTE RESOLUTION

      1. Neither you or we will commence court proceedings or action against the other under or in connection with these Terms (Dispute) (other than where urgent interlocutory relief is required) unless you or we have first attempted to resolve the Dispute in accordance with this clause 15.

  • You and we will attempt to resolve any Dispute as follows:

        1. either you or we may notify the other in writing of the occurrence of a Dispute and you and we must meet within 5 Business Days or such other time as agreed to discuss and attempt to resolve the Dispute;

        2. failing resolution of the Dispute within 10 Business Days after the first meeting between you and us in accordance with 15.2.1, you and us may agree to refer the Dispute for mediation to be conducted in accordance with the Australian Commercial Disputes Centre (ACDC) Mediation Guidelines and with a mediator as agreed by you and us or, failing agreement, as appointed by the CEO of the ACDC.  If you and we do not agree to do so, either party may commence legal proceedings.

      2. We may at our absolute discretion elect to withhold performing any further Services in the event of a Dispute. Nothing in this clause 15 will prevent you from complying with your obligation to pay any outstanding invoiced Fees for the Services. 

TERMINATION

      1. We may terminate these Terms and the provision of Services without cause by giving you at least 30 days prior written notice.

      2. We may terminate these Terms immediately upon written notice to you, if:

        1. you breach any obligation under these Terms which are capable of remedy, and do not remedy that breach within 10 Business Days of receipt of a notice from us specifying the breach and requiring it to be remedied; 

        2. you commit a breach of these Terms which are incapable of remedy;

        3. you do anything that materially damages or is likely to materially damage our brand or reputation;

        4. you or any of your Personnel commit any act of fraud or dishonesty in relation to these Terms; or

        5. an Insolvency Event occurs in relation to you.

      3. You may terminate these Terms immediately upon written notice to us if:

        1. we commit a material breach of an obligation of these Terms and do not remedy that breach within 10 Business Days of receipt of a notice from you specifying the breach and requiring the breach to be remedied; or

        2. an Insolvency Event occurs in relation to us.

CONSEQUENCES OF TERMINATION

      1. As soon as practicable after expiry or termination of these Terms, both you and us must:

        1. return to the other all equipment, records, documents and materials provided by you or us (respectively) for the purposes of these Terms; and

        2. return to the other all copies of all Confidential Information in your or our possession or control.

      2. If these Terms are terminated by either you or us under clause 19, you must on such date of termination pay to us all outstanding Fees due and payable as at the date of termination. 

      3. Clauses 6, 9, 10, 11, 12, 13, 14, 15, 16, 17, 21, 13 and 24 continue after termination or expiry of these Terms.

SUBCONTRACTING

      1. We may subcontract any of our rights or obligations under these Terms without giving notice to you.   

NOTICES

      1. Any notice given in connection with these Terms must be in writing and must be addressed to you or us (respectively) and either:

        1. hand delivered to, or sent by post to, the party’s address as described in the Proposal, the registered office, principal place of business or any other address the party notifies for the service of notices; or

        2. sent by email to the email address of each respective contact as described in the Proposal or any email address the party notifies for the service of notices. 

      2.  A notice is taken to have been given:

        1.  in the case of being hand delivered, on the date on which it is delivered;

        2. in the case of being sent by post, on the third (seventh if sent to an address in another country) day after the date of posting; and

        3. in the case of delivery by email, at the time sent unless the sender is notified, by a system or person involved in the delivery of the email, that the email was not successfully sent.

GENERAL

    1. Assignment 

You may not assign or novate any of your rights or obligations under these Terms without our prior written consent.  

  1. Relationship

Nothing in these Terms give rise to any relationship of agency, partnership, employment or otherwise between you and us.  

  1. Entire agreement

These Terms and the Proposal constitute the entire agreement between you and us in connection with their respective subject matter and supersedes all previous agreements or understandings between you and us in connection with the relevant subject matter.

  1. Further assurance

Each of you and us must promptly do whatever the other reasonably requires of it to give effect to these Terms and to perform its obligations under these Terms.

  1. Inconsistency

In the event of any inconsistency between:

  1. the Proposal;

  2. these Terms;

  3. any attachments, 

the document listed first in this clause 21.5 will prevail to the extent of the inconsistency.

  1. Waiver

No waiver of a right or remedy under these Terms are effective unless it is in writing and signed by the party granting it.

  1. Variation

No variation of these Terms are effective unless made in writing and signed by each of you and us.

  1. Governing law

These Terms are governed by the laws of New South Wales and each party submits to the exclusive jurisdiction of the courts of New South Wales.

  1. Counterparts

This document may consist of a number of counterparts and, if so, the counterparts taken together constitute one document. These Terms may be signed and / or accepted electronically. 

  1. Reading Down 

If part or all of any clause of these Terms is illegal, invalid or unenforceable:

  1. it will be read down to the extent necessary to ensure that it is not illegal, invalid or unenforceable, including but not limited to; but if that is not possible; 

  2. it will be severed from these Terms and the remaining provisions of these Terms will continue to have full force and effect, and the parties will attempt to replace that severed part with a legally acceptable alternative clause that meets the parties’ original intention in relation to the subject matter severed.

Back to home

Privacy Preference Center

Privacy Preferences