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CTO Industries Services Agreement
1. Definitions
The following rules of interpretation apply unless the context requires otherwise:
(a) headings are for convenience only and do not affect interpretation;
(b) the singular includes the plural and vice versa;
(c) a reference to a person includes a body corporate, an unincorporated body, or other entity;
(d) where examples of a thing or set of things are given by reference to the word “including,” the meaning of references to the thing or set of things is not limited by the examples.
2. Parties
(a) These Terms of Service form part of the contract (Agreement) between CTO Industries Pty Ltd (ABN 41 632 800 630) (CTO) and the customer (you) that is established when you accept the quote issued to you and upon your acceptance of that quote.
(b) Subject to any other CTO Agreement you have entered, you acknowledge that these Terms of Service embody the complete Agreement between CTO and you.
3. Goods & Services
(a) By signing this Agreement, you authorise CTO to provide goods & services (Goods & Services) and any additional services per the terms of this Agreement, and you agree to pay CTO’s rates and prices for all labour, parts, and materials.
(b) Any additional Goods & Services will be treated as part of the Goods & Services for this Agreement.
(c) CTO reserves the right to provide you with a quote for additional services if your vehicle is not in the condition stated by you and this results in additional labour hours for the delivery of the Goods and Services.
4. Quotation
(a) At CTO’s discretion, CTO will issue a quote for the cost of the Goods & Services before any of the Goods & Services are provided (Quote).
(b) The Quote will be discussed with you and approved by you before work commences on your vehicle or vehicle components.
(c) Quotes remain valid for 7 days after the date CTO provides them to you.
(d) If providing any additional Goods & Services exceeds the Quote, CTO will first contact you to explain the additional Goods & Services required and seek your authorisation for the additional costs incurred.
5. Price and Payment
(a) Work on your vehicle will not commence until the deposit amount (75% of the total invoice) is paid in full (Deposit).
(b) Prices for Goods & Services may vary from those initially quoted by CTO. CTO reserves the right to vary any of the prices quoted to you:
(i) to conform to the CTO’s price list as at the date of dispatch of the Goods & Services, with exception to existing orders accepted by CTO;
(ii) due to implementation of any requests by you for changes in delivery schedules, quantities, designs or specifications or similar requests; or
(iii) due to delays caused by an instruction of you or by any failure of you to give adequate information or instructions.
(c) Once the Goods & Services are completed, CTO will issue a final tax invoice describing the Goods & Services provided and the price payable.
(d) You must pay for the Goods & Services in full on the day they are completed and before you collect your vehicle or vehicle components.
(e) You can pay by cash, direct bank transfer, credit card online, or EFTPOS.
(f) Payments made online by Visa or MasterCard credit cards will incur a surcharge of 1.8%.
6. Returns and Refunds
6.1 Return
Subject to CTO’s absolute discretion and within 14 days of you accepting the Quote or receiving the Goods, the following Goods are not accepted for return:
(a) if Goods have been fitted, used in any way, or no longer in a sellable condition; or
(b) have been specially procured.
6.2 Refund
(a) Unless otherwise agreed by CTO, in the event that you change your mind after accepting a Quote, CTO will not refund any parts already ordered.
(b) Refunds will not be issued for labour invoices.
6.3 Cancellation
If within 14 days of accepting the Quote, you cancel your order for Goods and Services, and in the event your vehicle build is underway, all outstanding charges will be due and payable immediately prior to your vehicle being returned to you in an ‘as is’ state, with any balance of the Deposit being forfeit by you favour of CTO.
6.4 Restocking fee
In the event CTO accepts an item for return pursuant to clause 6.1 above, a handling/repacking and processing fee will be applied to all credit returns (being 20% of the amount paid for the Goods).
7. Child Safety Seats
(a) CTO will not remove or reinstall any child safety seat from any vehicle under any circumstance.
(b) CTO reserves the right to refuse to start any works on a vehicle that has a child safety seat installed.
8. Warranties
8.1 Australian Consumer Law
The warranties below are provided in addition to your rights under the Australian Consumer Law.
8.2 Warranty - General
(a) All CTO services are covered under a back to base warranty.
(b) You must cover the cost of returning the vehicle or vehicle components to CTO’s premises for all warranty work.
(c) Warranty will not apply if you have been advised that a modification you requested may have a negative impact on the vehicle’s performance and you choose to proceed with these modifications.
(d) Our Goods & Services come with guarantees that cannot be excluded under Australian Consumer Law. You are entitled to a replacement or refund for a major failure and to have the goods repaired or replaced if the goods and/or services fail to be of acceptable quality and the failure does not amount to a major failure.
8.3 Warranty Periods Workmanship:
(a) CTO warrants that the products manufactured by CTO ("CTO Product") and sold to you under this Agreement shall be free from defects in materials and workmanship for a period of 50,000km or five years (whichever comes first) from the date of installation.
(b) During the warranty period, should any CTO Product prove to be defective in material or workmanship under normal use and service, CTO agrees, at its discretion, to:
(i) repair the defective CTO Product; or
(ii) replace the defective CTO Product with a product of similar function and value.
(c) This warranty does not apply to any CTO Product that has been subject to misuse, neglect, accident, modification, or adaptation or any breach of this Agreement by you. The warranty is also void if the defect has resulted from any subsequent improper or unauthorised installation, maintenance, or repair.
(d) Warranty claims under this clause must be made by you in writing within the five year or 50,000km warranty period, providing detailed information about the nature of the defect and compliance with the return procedures as specified by CTO.
(e) CTO reserves the right to inspect the defective CTO Product to determine the cause of the defect before authorising repair, replacement, or credit.
(f) This warranty is the sole warranty provided by CTO in relation to the CTO Products and is in lieu of all other warranties, express or implied, including but not limited to any implied warranties of merchantability or fitness for a particular purpose.
8.4 Manufacturer’s warranty.
(a) CTO's obligation in relation to Original Equipment Manufacturer Products (OEM Products) is limited to facilitating the communication between you and the OEM manufacturer for warranty claims.
(b) CTO does not independently warrant the performance or quality of OEM Products.
(c) You are responsible for complying with the manufacturer's warranty claim process, including but not limited to, the submission of any claims within the manufacturer's specified warranty period.
(d) An OEM manufacturer’s warranty will not apply:
(i) to normal wear and tear;
(ii) where goods come to the end of their natural service life;
(iii) to maintenance items such as globes, wiper blades, lubricants, and fluids; or
(iv) where the defect is a result of:
(A) work performed elsewhere;
(B) parts supplied by the customer;
(C) alteration, accident, misuse, abuse, or neglect;
(D) unsafe or inappropriate driving practices;
(E) use of the vehicle in a competition or event;
(F) where the goods are subsequently removed, repaired, or modified by an unauthorised service agent;
(G) irregular servicing of your vehicle or its components; and/or
(H) ignoring warning indicators.
(e) Some vehicle manufacturers provide warranties that may be negatively impacted or made void if CTO provides the Goods & Services for your vehicle or to your vehicle components. You must ensure that the Goods & Services provided, or any part of the Goods & Services, will not affect or void the extended manufacturer’s warranty and in the event they do, you agree to indemnify CTO against such event pursuant to clause 13.1(c) above.
9. Title and Risk
(a) Until all money owed (contingently or otherwise) by you to CTO in respect of each and every item of Goods & Services supplied to you under this Services Agreement has been paid to CTO, in full:
(i) the title in the Goods & Services (both legal and beneficial) shall remain with CTO, even though you may mix or combine the Goods & Services with Additional Goods & Services;
(ii) you may only sell, lease or transfer title to the Goods & Services by bona fide sale or transfer to a customer in the ordinary course of business; and
(iii) you will not hold the Goods & Services as bailee for CTO.
(b) Noting in these Terms of Service entitles you to return any Goods for a credit adjustment or otherwise, unless CTO has requested in writing that the Goods be returned. Transportation charges must be paid and original invoice number must accompany returned Goods where CTO has made a request.
10. Acceptance of Goods and Services
(a) Acceptance of Goods and Services delivered to you shall be deemed to have taken place at the time you collect your vehicle.
(b) Before accepting any Goods and Services, you must examine the Goods and Services for loss or damage and bring to the attention of CTO prior to leaving CTO’s premises.
11. New Models
If a particular model of a Good has been replaced by a new model, CTO may, after consultation with you, supply the new model instead of the old model, and the price and terms will be those applicable to the new model.
12. PPSA
(a) If this Agreement or any transaction contemplated by it gives rise to a security interest for CTO under the Personal Property and Securities Act 2009 (Cth) (PPSA), then this clause 12 applies to enable CTO to secure the amount owing by you to CTO in relation to Goods and Services and also the performance of all your other obligations under this Agreement.
(b) You consent to CTO perfecting its interest in the Goods and Services (and any product to which Goods are attached or converted into by any process) by registration under the PPSA of the security interest that CTO considers arises out of this Agreement.
(c) You and CTO agree to contract out of each provision which, under sections 115(1) and 115(7) of the PPSA, they are permitted to contract out of, other than sections 117, 118, 134(1) and 125. To the extent permitted by law, you also waive any rights that you might have (including to receive any notice) under sections 92, 93,94, 95 and 96 of the PPSA.
(d) To the extent permitted by the PPSA:
(i) you waive your right to receive each notice which section 144 or 157 of the PPSA permits to be waived;
(ii) you waive your right to receive anything from CTO under section 275 of the PPSA and agree not to make any request of CTO under that section.
(e) For the purposes of section 275 of the PPSA, the information of the kind mentioned in section 275(1) of the PPSA must not be disclosed by you except where required by section 275(7) of the PPSA.
(f) You must when requested to do so by CTO, do all things which CTO asks to ensure that this Service Agreement (including any purchase order) and any security interest granted under it is fully effective, enforceable and perfected with the priority required by CTO and otherwise enable CTO to exercise its rights in connection with that security interest. This may include:
(g) doing anything to make, produce or obtain any consent, authorisation, registration or approval in respect of anything, or to facilitate it;
(h) creating or executing (or procuring the creation or execution of) any document, including any form, notice, consent or agreement; and
(i) delivering documents or evidence of title or otherwise giving possession or control with respect to any personal property or other asset.
13. Liability
(a) CTO is not liable for any:
(i) loss or damage to your vehicle, its accessories or contents, or your vehicle components, while your vehicle or vehicle components are on CTO’s premises or your vehicle is being driven for the purpose of providing or checking the Goods & Services;
(ii) loss or damage of personal items you leave in your vehicle;
(iii) vehicle manufactures warranty that may be void by CTO installing the Goods & Services on you vehicle;
(iv) loss or damage you suffer as a result of CTO selling or otherwise disposing of your vehicle or vehicle components under clause 14(c), including any loss of any accessories or contents of the vehicle; or
(v) delay in providing and/or installing the Goods & Services.
(b) CTO’s maximum aggregate liability for all loss, damage or claims arising out of or in connection with this Agreement, whether by way of indemnity, warranty, by statute, for breach of contract, in tort, in restitution, or any other basis whatsoever, is limited to the total amount paid by you to CTO pursuant to the Quote.
14. Lien and Uncollected Vehicles
(a) As long as you owe CTO money under this Agreement, CTO has a lien over your vehicle, its accessories, contents, and components in the possession of CTO.
(b) If CTO exercises a lien over your vehicle or if you do not collect the vehicle within 7 days from the time it is ready for collection, CTO may charge a reasonable daily vehicle storage fee of $75.
(c) If you have not discharged the lien or you have not collected your vehicle within 1 month of CTO sending you notification that your vehicle is ready for collection, and CTO has not been able to contact you despite using reasonable efforts, CTO may sell or otherwise dispose of your vehicle components by any reasonable method and at your expense without further notice to you.
(d) The proceeds of any sale or disposal of your vehicle components under clause 14(c) will be applied by CTO to the payment of any money that you owe to CTO.
(e) If the proceeds of the sale or disposal of your vehicle or vehicle components are:
(i) not greater than the amount you owe to CTO, the deficit will still be a debt owed by you to CTO; or
(ii) greater than the amount you owe to CTO, the excess (less any costs incurred by CTO relating to the sale or disposal) will be remitted to you.
(f) If CTO is unable to remit the excess to you, the excess will be held by CTO for 3 months from the date of sale or disposal after which the excess will be forfeited to CTO.
15. Privacy
CTO collects and manages all of your personal information in accordance with CTO’s Privacy Policy.
16. CCTV
(a) You acknowledge that CTO has installed CCTV cameras at various locations in and around its business premises.
(b) You agree to being video recorded as you enter, do business, and leave CTO’s business premises. This includes video footage of your vehicle, yourself, and any passengers.
(c) This video footage may be used to assess the condition of the vehicle upon presentation to CTO.
17. Notices
(a) A notice, approval, consent, or other communication in connection with this Agreement must be in writing sent to the address of the receiving party appearing in this Agreement or such other address as may be communicated by the receiving party, marked for the attention of any person nominated for that purpose by the receiving party (and who in the absence of any such nomination is the signatory to this Agreement on behalf of the party), and may be sent by prepaid post (air mail if international), courier, or electronic mail.
(b) A notice, approval, consent, or other communication is taken to have been received:
(i) two Business Days after sending if sent by post;
(ii) if sent by courier, at the time indicated by the records of the courier; and
(iii) if sent by electronic mail, on receipt by the sender of an acknowledgment indicating that the mail item was read by the recipient.
18. Force Majeure
CTO shall not be liable to you for any loss, damage, or harm of any kind (whether direct or indirect) however arising by reason of force majeure being any cause not within the reasonable control of CTO or its suppliers.
19. Jurisdiction
(a) This Agreement is governed by the laws of Victoria and the parties irrevocably and unconditionally submit to the non-exclusive jurisdiction of the courts of Victoria.
(b) If part or all of any of this Agreement is illegal or unenforceable, it will be severed from this Agreement and will not affect the continued operation of the remaining provisions of this Agreement.
(c) This Agreement can only be amended, supplemented, or waived in writing signed by both parties.
(d) The failure of either party to enforce, or the delay by either party in enforcing, any of its rights shall not be deemed a continuing waiver or a modification of this Agreement.
ACKNOWLEDGEMENT
By accepting your Quote, you agree you have read and understood the terms and conditions in this Agreement.
For updates to CTO’s returns policy, please visit our website.
At any time, you can discuss CTO’s Returns Policy with your local CTO store manager or the CTO’s Customer Service team.