Terms of service

1. Acceptance

1.1. Parties: These Terms are between PERFORMANCE FOUR X FOUR PTY LTD (ACN 624 215 578) as Trustee for Performance Four x Four Trust (ABN 15 837 947 404), its successors and assignees (referred to as “we” and “us”) and you, the person, organisation or entity described in the Quote (referred to as “you”). These Terms apply to all Services provided by us to you.

1.2. Acceptance: You have requested the Services set out in the Quote. You accept these Terms by:

(a) signing and returning the Quote;
(b) confirming in writing including by email that you accept the Quote;
(c) accepting the Quote online;
(d) allowing us to proceed with the Services; or
(e) making part or full payment for the Services.

1.3. You agree that these Terms form the agreement under which we will supply the Services to you. Please read these Terms carefully. Please contact us if you have any questions. Purchasing Services from us indicates that you have had sufficient opportunity to read these Terms and contact us if needed, that you have read, accepted and will comply with these Terms.

1.4. Deposit: If the Quote indicates that we require a Deposit, we will not commence performing the Services until you have paid the Deposit or the first instalment of our Fees.

1.5. Cancellation: You must provide us with at least 3 Business Days’ notice in writing of any cancellation. Failure to do so may result in part of your Deposit being forfeited proportionate to our costs incurred and time spent in providing the Services to you up to the time of cancellation. If no Deposit has been paid, this amount will be payable by you within 7 days of receipt of an invoice for that amount. To the extent permitted by law, if you cancel the Services and we have already ordered materials specific to the Services that must be returned, you will also be required to pay for any return or re-stocking costs on an indemnity basis, payable by you within 7 days of receipt of an invoice for that amount; or if we have already ordered materials specific to the Services that cannot be returned or re-used by us, you will be required to pay for the material costs on an indemnity basis, payable by you within 7 days of receipt of an invoice for that amount. You can collect the materials from us once the invoice is paid in full.

1.6. Refund: To the extent permitted by law, we do not offer refunds of any kind.

2. Services

2.1. We agree to perform the Services with due care and skill.

2.2. We reserve the right to refuse any request that we deem inappropriate, unreasonable or illegal.

2.3. We may provide the Services to you using our employees, contractors and third-party providers, and they are included in these Terms.

2.4. When you engage third parties that are neither our employees nor contractors we have directly appointed, their services or products fall under your oversight. We bear no liability for the outcomes or quality of the services or products provided by these independent third parties.

2.5. Timeframe: Any period of time allowed for completion of Services is an estimate only and is subject to change. To the extent permitted by law, we will not be liable for any delays. Both Parties must take all reasonable steps to minimise any delay to the Services.

3. Price, Invoicing and Payment

3.1. You agree to pay us the amounts set out in our Quote, including any Deposit required. All amounts are stated in Australian dollars. All amounts exclude Australian GST (where applicable). Payment may be made by way of credit card or other payment methods as set out in our Quote when purchasing our Services.

3.2. You agree to pay our invoices by the payment date set out on the invoice. If you do not pay by the payment date (including any other services we have provided to you and invoiced you for), we may cease to provide the Services to you until we receive payment.

3.3. We may charge interest at a rate equal to the Reserve Bank of Australia’s cash rate from time to time plus 8% per annum, calculated daily and compounding monthly, on any amounts unpaid after the payment date.

3.4. If invoices are unpaid after the payment date, we reserve the right to take steps to recover any outstanding professional fees and outlays owing to us. In the event of non-payment, we have the right to engage debt collection services for the collection of unpaid debts, the right to commence legal proceedings for any outstanding amounts owed to us and the right to take any other adverse action against you as we consider appropriate. If any action is required to recover amounts owing to us (including without limitation issuing and receiving any correspondence, commencing court proceedings, taking enforcement action and so on), you acknowledge and agree that you are liable for and must pay all costs including without limitation debt collection, commission, charges, costs and any out-of-pocket expenses (including all legal costs and legal fees on an indemnity basis and all fees charged by counsel). You agree to indemnify us against any costs we may incur in recovering payment of any unpaid invoices.

3.5. We reserve the right to report bad debts to independent credit data agencies.

3.6. If the Quote states that the Fees and Expenses are an estimate only, you acknowledge that the final Fees and Expenses may be more or less than the estimated amounts. We will inform you of any material variation to Fees and/or Expenses as soon as reasonably possible as it becomes apparent that there is a material variation required.

4. Variations

4.1. The Fee and Services may be varied by agreement between Parties.

4.2. We may at any time, inform you of the need for us to perform a Variation.

4.3. If you request a Variation to the Services, we have discretion as to whether we make the Variation.

4.4. Variations will not invalidate these Terms or be regarded as a repudiation of these Terms by us.

4.5. If in our reasonable opinion a Variation requires additional time to perform the Services, then we will amend the term of this Agreement after consultation with you.

4.6. If we need to charge an additional fee for a Variation (Additional Fee), then we will provide a quote for the Additional Fee to you prior to commencing performance of the Variation. If:

(a) you accept the quote for the Additional Fee then these Terms are amended to incorporate the Variation but otherwise remain the same; or
(b) you do not accept the quote for the Additional Fee where we informed you of the need for us to perform a Variation then we may in our discretion terminate these Terms immediately.

4.7. If we are unable to accommodate a Variation requested by you, we may consult with you to find a feasible adjustment. Should a mutually agreeable solution not be reached, we reserve the right to invoice for Services performed to date and terminate these Terms.

5. Your Obligations and Warranties

You warrant that:

There are no legal restrictions preventing you from agreeing to these Terms;
You will cooperate with us and provide us with information that is reasonably necessary to enable us to perform the Services as requested from time to time, in a timely manner;
The information you provide to us is true, correct, and complete;
You will at all times comply with our Requirements;
You will not infringe any third-party rights in working with us and receiving the Services;
Before attempting to resolve any issues yourself or using a third party, you will inform us if you have reasonable concerns relating to our provision of Services under these Terms and allow us to inspect and assess the Vehicle, with the aim that the Parties will use all reasonable efforts to resolve your concerns;
You are responsible for obtaining any consents, licenses, and permissions from other parties necessary for the Services to be provided, at your cost, and for providing us with the necessary consents, licenses, and permissions;
You grant us permission to operate the Vehicle to enable us to provide the Services, and you warrant that you have adequate motor vehicle insurance in place, including as a minimum insurance that is compulsory under all applicable laws governing the use of motor vehicles and liability for personal injury or death and liability insurance for third-party property damage;
We have the right to impose stand-down charges and recover additional costs incurred where work is delayed by matters not within our control and where we are unable to reasonably reschedule services; and
You will not employ, canvass, solicit, entice, induce or attempt to employ our employees or contractors.

6. Confidential Information

6.1. We, including our employees and contractors, agree not to disclose your Confidential Information to any third party (other than where necessary, to third-party suppliers, or as required by law); to use all reasonable endeavors to protect your Confidential Information from unauthorized disclosure; and only to use your Confidential Information for the purpose for which it was disclosed to us, and not for any other purpose.

6.2. You, including your employees and contractors, agree not to disclose our Confidential Information to any third party; to use all reasonable endeavors to protect our Confidential Information from unauthorized disclosure; and only to use our Confidential Information for the purpose for which it was disclosed or provided by us to you, to provide better quality services to you, and not for any other purpose.

6.3. These obligations do not apply to Confidential Information that:

Is authorized to be disclosed;
Is in the public domain and/or is no longer confidential, except as a result of a breach of these Terms;
Is received from a third party, except where there has been a breach of confidence; or
Must be disclosed by law or by a regulatory authority, including under subpoena.

6.4. This clause will survive the termination of these Terms.

7. Feedback and Dispute Resolution

Your feedback is important to us. We seek to resolve your concerns quickly and effectively. If you have any feedback or questions about the Services, please contact us.
If there is a dispute between the Parties in relation to these Terms, the Parties agree to the following dispute resolution procedure:
1. The complaining Party must notify the other Party in writing of the nature of the dispute, the desired outcome, and suggested resolution actions. The Parties agree to meet in good faith to resolve the dispute at an initial meeting.
2. If the dispute cannot be resolved at the initial meeting, any Party may refer the matter to mediation. If the Parties cannot agree on a mediator, the Law Society of Queensland will appoint one. Both Parties must attend the mediation in good faith, and costs will be shared equally.
All attempts to resolve disputes under this clause are without prejudice to other legal rights or entitlements.

8. Retention of Title

Title in any goods we supply to you does not pass to you until they have been paid for in full, even if we have installed them.
If you fail to make a due payment, we may enter your premises and remove the goods without being liable for damages caused during removal.

9. Warranties

We may provide a workmanship warranty for the period specified in the Quote from the date of practical completion.
Our Warranty is valid only for Services carried out by us. Tampering, modifying, or using a third party will void the warranty.
Failure to comply with our Requirements or maintain the Vehicle according to manufacturer guidelines will void the warranty at our discretion.
Our Warranty does not cover incidental loss or damage, including towing or loss of profits.
Annual servicing by us is required for materials and fittings to maintain warranty validity.
Warranty claims must include the original invoice as proof of Services.
Warranty for products not manufactured by us will be as per the manufacturer’s warranty.
We are not responsible for materials supplied by you.
Our Warranty complies with Australian Consumer Law.

10. Term and Termination

For remediable breaches, written notice must be given. If unresolved, the dispute resolution process in clause 7.2 will be followed.
We may terminate immediately for:
1. Non-remediable breaches;
2. Failure to provide clear or timely instructions;
3. Breakdown of working relationship, including loss of trust;
4. External factors affecting service delivery;
5. Non-payment of invoices.
You may terminate immediately for:
1. Non-remediable breaches by us;
2. Breakdown of working relationship, including loss of trust.
On termination:
1. Deposits/payments for completed Services are non-refundable.
2. Confidential Information and Intellectual Property must be returned or destroyed.
3. We will retain documents as required by law.

11. Insolvency

11.1. If either Party:

being a person, becomes bankrupt or makes an assignment of its estate for the benefit of its creditors; or
being a company, becomes insolvent, has a liquidator, provisional liquidator, administrator or receiver appointed or takes or has taken or instituted against it any action which may result in the liquidation of the company or if it enters into any Subcontract with its creditors,

the other Party may, without issuing a notice to show cause, terminate the Agreement by written notice.

12. Consumer Law, Limitation of Liability and Disclaimers

12.1. Service Standard: We will provide the Services with due care and skill, the Services will be fit for the purpose that we advertise, and we will supply the Services within a reasonable time.

12.2. ACL: To the extent that you are considered a ‘consumer’ under the ACL, certain legislation including the Australian Consumer Law (ACL) in the Competition and Consumer Act 2010 (Cth) and similar consumer protection laws and regulations may confer you with rights, warranties, guarantees and remedies relating to the provision of Services by us to you which cannot be excluded, restricted or modified (Statutory Rights).

12.3. Statutory Rights: Nothing in these Terms excludes your Statutory Rights as a consumer under the ACL. You agree that our liability for the Services is governed solely by the ACL and these Terms.

12.4. Warranties: Except for your Statutory Rights (and Our Warranty), we exclude all express and implied warranties representations and guarantees and all material and work is provided to you without warranties, representations and guarantees of any kind.

12.5. Delay: Where the provision of Services depends on your information or response, we have no liability for a failure to perform the Services, where it is affected by your delay in response or supply of incomplete or incorrect information.

12.6. Referrals: We may provide you with contact details of third-party specialists. This is not a recommendation by us for you to seek their advice or to use their services. We make no representation or warranty about the third-party advice or provision of services, and we disclaim all responsibility and liability for the third-party advice or provision of services, or their failure to advise or provide services.

12.7. Availability: To the extent permitted by law, we exclude liability for:

the Services being unavailable; and
any Claims for loss of profits, revenue, production, opportunity, access to markets, goodwill, reputation or any loss or damage relating to business interruption or otherwise, suffered by you or made against you, arising out of or in connection with your inability to access or use the Services or the late supply of Services, even if we were expressly advised of the likelihood of such loss or damage.

12.8. Disclaimers: To the extent permitted by law we disclaim all responsibility and liability for:

products you purchase from a third party;
damage caused to your property other than due to our negligent act or omission;
subject to clause 4, any additional fees that arise unexpectedly as part of the job, that were not identified initially;
any damage to paint work other than due to our negligent act or omission;
any pre-existing defects to your property;
where the defect is a result of alteration, accident, misuse, abuse or neglect, or unsafe or inappropriate driving practices;
incorrect or contaminated fuels, additives, lubricants or coolants have been used, or if the Vehicle has been used in any motor sport competition or trial;
loss of data stored in your Vehicle (such as music or phone numbers) during Services;
damage to parts not directly worked on by us during the Services;
damage to the Vehicle, your property or any person or persons caused by your use of the Vehicle and the property;
personal injury caused to you or any third party other than due to our negligent act or omission;
faults in work performed by us that has been tampered with, serviced or worked on by a third party (voiding Our Warranty);
variations in materials from any samples or online representations;
inaccuracies due to incorrect measurements or plans provided to us;
delays caused by circumstances outside our control, including but not limited to inclement weather, material supply delays, and shortages;
damage due to exposure to the elements, e.g., salt, wind, water, weather conditions, flash flooding, etc.; and
naturally occurring damage, ageing, and discolouration.

12.9. Limitation: To the extent permitted by law, our total liability arising out of or in connection with the Services, however arising, is limited to us re-supplying the Services to you, or, at our option, us refunding to you the amount you have paid us for the Services to which your claim relates. Our total liability to you for all damages in connection with the Services will not exceed the price paid by you under these Terms for the 12-month period prior to the act which gave rise to the liability, or one hundred dollars (AUD$100) if no such payments have been made.

This clause will survive the termination of these Terms.

13. Indemnity

13.1. You are liable for and agree to indemnify, defend and hold us harmless for and against any and all Claims, liabilities, suits, actions and expenses, including costs of litigation and reasonable legal costs, resulting directly or indirectly from:

any information provided by you to us that was not accurate, up to date or complete or was misleading or a misrepresentation;
your breach of these Terms;
any misuse of the Services by you, your employees, contractors or agents; and
your breach of any law or third-party rights.

13.2. We are liable for and agree to indemnify, defend and hold harmless for and against any and all Claims, liabilities, suits, actions and expenses, including costs of litigation and reasonable legal costs, resulting directly or indirectly from:

any information provided to you by us that was not accurate, up to date or complete or was misleading;
our breach of these Terms;
any defect or omission in the Services from or by us, our employees, contractors or agents; and
our breach of any law or third-party rights in connection with our provision of the Services to you.

This clause will survive the termination of these Terms.

14. GENERAL

14.1. Privacy: We agree to comply with the legal requirements of the Australian Privacy Principles as set out in the Privacy Act 1988 (Cth) and any other applicable legislation or privacy guidelines.

14.2. Publicity: You consent to us stating that we provided Services to you, including but not limited to taking photographs/videos of our work and mentioning you on our website, social media platforms, and in our promotional material, unless you give us written notice that you withdraw your consent in this regard.

14.3. GST: If and when applicable, GST payable on the Fee for the Services will be set out on our invoices. You agree to pay the GST amount at the same time as you pay the Fee.

14.4. Relationship of Parties: These Terms are not intended to create a relationship between the Parties of partnership, joint venture, or employer-employee.

14.5. Assignment: These Terms are personal to the Parties. A Party must not assign or deal with the whole or any part of its rights or obligations under these Terms without the prior written consent of the other Party (such consent not to be unreasonably withheld).

14.6. Severance: To the extent permitted by law, if any provision (or part of it) under these Terms is held to be unenforceable or invalid in any jurisdiction, then it will be interpreted as narrowly as necessary to allow it to be enforceable or valid. If a provision (or part of it) under these Terms cannot be interpreted as narrowly as necessary to allow it to be enforceable or valid, then the provision (or part of it) must be severed from these Terms and the remaining provisions (and remaining part of the provision) of these Terms are valid and enforceable.

14.7. Force Majeure: Neither Party will be liable for any delay or failure to perform its obligations under these Terms if such delay is due to any circumstance beyond their reasonable control.

14.8. Jurisdiction & Applicable Law: These terms are governed by the laws of Queensland and the Commonwealth of Australia. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in Queensland.

14.9. Entire Agreement: These Terms and any document expressly referred to in them represent the entire agreement between the Parties and supersede any prior agreement, understanding, or arrangement between the Parties, whether oral or in writing.

14.10. Special Conditions: The Special Conditions will prevail to the extent of any inconsistency with these Terms.

15. DEFINITIONS

15.1. Business Day means a day which is not a Saturday, Sunday or bank or public holiday in Queensland, Australia.

15.2. Claim/Claims includes a claim, notice, demand, right, entitlement, action, proceeding, litigation, prosecution, arbitration, investigation, judgment, award, damage, loss, cost, expense or liability however arising, whether present, unascertained, immediate, future or contingent, whether based in contract, tort or statute, whether indirect, incidental, special, consequential and/or incidental, and whether involving a third party or a Party to the Terms or otherwise.

15.3. Confidential Information includes confidential information about you, your credit card or payment details, and the business, structure, programs, processes, methods, operating procedures, activities, products and services, trade secrets, know-how, financial, accounting, marketing and technical information, customer and supplier lists (including prospective customer and supplier information), ideas, concepts, technology, and other information of either Party whether or not such information is reduced to a tangible form or marked in writing as "confidential".

15.4. Deposit (if any) set out in the Quote.

15.5. Expenses (if any) are set out in the Quote.

15.6. Fees are set out in the Quote.

15.7. GST means GST as defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) as amended from time to time or any replacement or other relevant legislation and regulations.

15.8. Intellectual Property includes any and all present and future rights to intellectual and industrial property throughout the world, and includes all copyright and analogous rights, all rights in relation to inventions (including patent rights), patents, improvements, registered and unregistered trademarks, designs, any corresponding property rights under the laws of any jurisdiction, discoveries, circuit layouts, trade names, trade secrets, secret processes, know-how, concepts, ideas, information, processes, data or formulae, business names, company names or internet domain names, and any Confidential Information.

15.9. Party and Parties means a party or parties to these Terms.

15.10. Quote means the Quote to which these Terms are attached.

15.11. Requirements means any instructions, directions, care guidelines or other instructional information provided to you by us.

15.12. Services are set out in the Quote.

15.13. Special Conditions means the special conditions, if any, detailed in the Quote.

15.14. Terms means these terms and conditions.

15.15. Vehicle means the vehicle in which we performed Services on.

15.16. Variation means:

when advised by us to you, necessary amended or additional services, including but not limited to changes to the Quote, Services, Fees or Expenses; or
amended or additional services as requested by you.