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Terms and Conditions

APPLICATION

These Terms and Conditions apply to all supplies of Services by Us and the Customer and shall apply to the exclusion of all terms and conditions conflicting with or purporting to modify them, except where otherwise agreed in writing between Us and the Customer.

DEFINITIONS & INTERPRETATION

- ‘Customer’ means the person or company who buys or agrees to buy the Services from Us and/or the person or company who has or agrees to have Services supplied by Us and this includes the Customer’s employees, agents, directors and shareholders.

- ‘Confidential Information’ means any information or documents of a confidential or sensitive nature and includes any source code relating thereto, Our Price, Customer lists and quotations, including information relating to Services.

- ‘GST’ means the same as in the GST Law, any other goods and services tax, or any tax applying to this transaction in a similar way; and any additional tax, penalty tax, fine, interest or other charge under a law for such a tax.

- ‘GST Law’ means the same as in A New Tax System (Goods and Services Tax) Act 1999 (Cth).

- ‘Intellectual Property Rights’ means all present and future copyright and neighbouring rights, all proprietary rights in relation to ideas, designs, artistic and literary works, including patents, registered or unregistered trademarks, digital and electronic works, source code, object code, operating enhancements, translations, compilations, derivative works, confidential information, trade secrets and know how.

- ‘Price’ means the price for the Services plus any GST as set out in the Quote.

- ‘Services’ means any services provided by Us to the Customer, including but not limited to a customer focused automotive solution including motor vehicle finance and insurance products and/or services within Australia.

- ‘Terms and Conditions’ means the terms and conditions set out in this document and any special terms and conditions agreed in writing by Us.

- ‘Us’ ‘We’ ‘Our’ all means ThinkAuto Pty Ltd t/as Think Auto.

- Handover means the dates specified by Us when the Services are to be delivered and/or completed by Us

- Website means the ThinkAuto website at URL www.thinkauto.com.au

In these Terms and Conditions, unless the context otherwise requires:
- the singular includes the plural and vice versa;
- a reference to a clause is a reference to a clause in these Terms and Conditions;
- a reference to a party to these Terms and Conditions or any other document or arrangement includes that party's executors, administrators, substitutes, successors and permitted assigns;
- where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning;
- a reference to a period of time (including, without limitation. a year, a quarter, a month and a day) is to a calendar period;
- a reference to a statute, regulation, proclamation, ordinance or by-law includes all statutes, regulations, proclamations, ordinances or by-laws amending, consolidating or replacing it, and a reference to a statute includes all regulations, proclamations, ordinances and by-laws issued under that statute.

- In these Terms and Conditions, headings are for convenient reference only and do not affect interpretation.

QUOTES, BOOKING FORMS AND INVOICES

- Where the Customer requests Us to supply Services to the Customer, We may give the Customer a written quote(“Quote”).

- We reserve the right to correct any obvious errors or omissions in a written Quote, whether technical or otherwise.

- All signed booking forms returned to Us by the Customer whether found on the Website or otherwise, shall be deemed to be acceptance of a Quote provided by us, by the Customer to have Services supplied pursuant to these Terms and Conditions and shall also be deemed to be conclusive evidence of the Customer’s acceptance of these Terms and Conditions.

- Upon receipt from the Customer of a signed booking form for Services We will issue an invoice to the Customer. All fees are payable by the Customer.

- The Customer acknowledges that the Customer has been informed by Us that the Services provided pursuant to these Terms and Conditions may be provided wholly or in part by independent contractors, third-parties or sub-contractors including but not limited to services pertaining to the delivery selling, finding or financing a motor vehicle as otherwise set out and described in the Website.

THE PRICE AND PAYMENT

- The Price shall be as quoted and invoiced to the Customer by Us.

- Payment of the Price shall be made by the Customer as follows:

- For SELL MY CAR (on the Website) the payment will be due and made on the date of the Handover.
- For FIND MY CAR (on the Website) the payment will be due and made 1 day prior to Handover. If Handover is not completed for any reason the Customer will receive a full refund.

- If the Customer does not make payment of the Price of the invoice or as otherwise agreed or instructed, then all money that the Customer owes to Us becomes immediately payable.

- If the Customer does not make payment of the Price of the invoice or as otherwise agreed or instructed, We may at Our absolute discretion appropriate any payment made by the Customer to such of the Services (or Services supplied under any other contract with the Customer) as We think fit.

- The Customer must pay Us any costs, expenses or losses incurred by Us as a result of the Customer's failure to pay Us on the due date all sums outstanding from the Customer (including, without limiting the generality of the obligation set out in this clause, any debt collection and legal costs).

- The Customer does not become entitled to, and We are not obliged to pay or allow any discount or rebate unless all money owing by the Customer to us has been paid.

THE SERVICES

- The description of the Services shall be as set out in Our Quote, provided to the Customer upon providing the requisite information set out on the Website.

- The Services shall be supplied in accordance with the description contained in Our specifications.

- The Customer must provide us with all information that We may reasonably require in order to perform any Services.

- If the Customer’s objectives change during performance of Services, the Customer must immediately advise Us if it wishes to add to or refine any aspect of its instructions.

- We will not materially alter the scope of Services or the provision of the Services without the Customer’s consent. In some instances, it may be difficult to specify the precise nature of the activities required to perform the Services before the commencement of work. If We consider during the provision of Services that a material change or addition will be required, We will notify the Customer of that change.

- We may from time to time make changes (with or without notice) to the specifications of Services which are required to comply with any applicable safety or statutory requirements, or which do not materially affect the quality or fitness for purpose of Services.

- The Customer shall take delivery of the Services rendered and as supplied pursuant to the Quote.

- The specifications and designs of the Services (including the copyright, design right or other intellectual property in them) shall as between the parties be the property of Us.

OUR LIABILITY

- We provide Services to the Customer otherwise in accordance with the Quote and have no liability or responsibility in relation to the delivery of any motor vehicle, the subject matter of the provision of the Services. If the motor vehicle to which We provide our Services is provided by a third party, We are not responsible for any matter, cost or expense connected with or cost of the delivery of the motor vehicle whether or not supplied by the third-party, including but not limited to manufacturer price increases, delays in delivery, direct or indirect loss of income or damages arising from the delay or cost increases.

- Our liability to the Customer, whether for any breach of an agreement or otherwise, shall not in any event exceed the Price and We shall be under no liability for any direct loss and/or expense or indirect loss and/or expense suffered by the Customer or liability to third parties incurred by the Customer.

- Except as required by law and as provided in these Terms and Conditions, all implied conditions and warranties with respect to the Services supplied by Us to the Customer are excluded. In particular, We do not accept any liability for any direct, indirect or consequential loss or damage caused to the Customer or any other person or third party which arises out of the negligence or carelessness by Us or any of Our employees, servants, contractors, or agents, or which arises directly or indirectly from the use of any information, advice or recommendation by Us or from any alleged breach of duty in respect of the Services supplied Us. We shall not be liable for any damage arising from the provision of the Services not being fit for any purpose for which the same may be used or supplied or in respect of any claim that the Services did not correspond with the description on the Invoice.

- The parties acknowledge that, certain clauses, conditions, guarantees and warranties may be implied in these Terms and Conditions and there are rights and remedies conferred on the Customer in relation to the provision of the Services which cannot be excluded, restricted or modified by agreement under applicable State and Commonwealth law ("Non-Excludable Rights").

- Apart from Non-Excludable Rights, We accept no liability for:

6.5.1 any claim by the Customer or any other person, including without limitation, any claim relating to or arising from all clauses, conditions, guarantees and warranties expressed or implied, and all rights and remedies conferred on the Customer, by statute, the common law, equity, trade, custom or usage or otherwise; and

6.5.2 any representations, warranties, conditions, guarantees or agreement made by any agent or representative

- Where (and to the extent) permitted by law, We can limit the remedy of the Customer for a breach of a Non-Excludable Right, then Our liability for breach of the Non-Excludable Right is limited to, at Our election, in the case of Services - the supplying of the Services again or the payment of the cost of doing so.

- Subject to Our obligations under the Non-Excludable Rights and clauses 6.5 and 6.6, Our maximum aggregate liability to the Customer in respect of any one claim or series of connected claims under this document or in connection with its subject matter, whether arising in or for breach of contract, negligence or other tort, breach of statutory duty, or under an indemnity or otherwise is limited to an amount equal to the last invoice issued by Us to, and paid by, the Customer.

- Notwithstanding any other provision of these Terms and Conditions, in no circumstance (whatever the cause) are We liable in contract, tort (including, without limitation, negligence or breach of statutory duty) or otherwise to compensate the Customer for:

6.8.1 any increased costs or expenses;

6.8.2 any loss of profit, revenue, business, contracts or anticipated savings;

6.8.3 any loss or expense resulting from a claim by a third party; or

6.8.4 any special, indirect or consequential injury loss, damage or expense whatsoever and howsoever arising.

- If We are required to obtain services not normally supplied by Us from a third party in order to carry out the Customer's instructions:

6.9.1 the Customer must pay for such Services;

6.9.2 We will not be liable for any breach of these Terms and Conditions if that breach is a result of or relates to the supply by the third party of the Services; and

6.9.3 We acquire the Services as agent for the Customer and not as principal and will have no liability to the Customer in relation to the supply of those Services. Any claim by the Customer in relation to the supply of those Services must be made directly against the third party.

- We are not liable to the Customer in relation to any loss, damage or expense caused by Our failure to complete to perform Services as a result of an act of God, fire, flood, tempest, earthquake, riot, civil disturbance, industrial dispute, theft, crime, strike, lockout, work stoppage or other labour hindrance, breakdown, act of war (whether declared or not), sabotage, insurrection, any pandemic, epidemic or direction, mandate or order of any applicable authority in relation to a pandemic or epidemic national emergency (whether in fact or law), requirements of restriction of, or failure to act by, any government, local body or judicial entity, the inability of Our usual suppliers to supply necessary materials or any other matter beyond Our control (“Force Majeure Event”).

HANDOVER

- Handover of Services shall be made to the Customer’s nominated address, or such other address as specified in the Quote.

- The Customer shall make all arrangements necessary to accept Handover when advised by Us and if the Customer refuses or fails to accept Handover, We may charge, in Our absolute discretion the Customer for any additional costs incurred as a result, additional costs, interest, including storage and transportation costs.

- Any time stated for Handover of the Services is an estimate only and We are not liable for any delay in Handover whatsoever including any delay caused by third parties.

- Where it has been agreed that the Customer is to collect from Us, the Customer must only do so when the Customer has been notified by Us that the motor vehicle is ready for collection.

TITLE AND RISK

- The Customer shall insure and keep properly insured any motor vehicle to which the Services are to be provided by Us against “all risks” to the reasonable satisfaction of Us until the date that title to the motor vehicle passes, and shall whenever requested by Us produce a copy of the policy of insurance;

- Further, it will be the sole responsibility of the Customer to ensure (at its sole cost) that the policy of insurance covers the risk of the motor vehicle (to which the Services relate) being driven or tested by a third party not named in the policy of insurance (referred to in clause 8.1).

- All completion of Services by us at the Handover including any transfers of motor vehicles will be at the sole responsibility of the parties involved in the transfer of the motor vehicle. We make and give no warranty to the Customer as to the efficacy of the transfer or the passing of title of the motor vehicle. This will be and remains the sole responsibility of the Customer. We only facilitate the finding and selling of the motor vehicle (as the case may be) as per the Quote provided.

- We do not hold any funds for the Customer, either in trust or in escrow pending the Handover. All responsibility with respect to the transfer of any funds to complete the transfer of the motor vehicle is the responsibility and at the risk of the Customer.

- The Customer must reimburse Us all costs incurred by Us in exercising Our rights under this clause.

PERSONAL PROPERTIES SECURITIES LAW

- This clause applies to the extent that any agreement incorporating these Terms and Conditions provides for or contains a ‘security interest’ for the purposes of the Personal Property Securities Act 2009 (Cth) (“PPS Law”).

- The security interest granted to Us is a ‘purchase money security interest’ (“PMSI”) to the extent that it can be under section 14 of the PPS Law.

- The Customer agrees that:
- all collateral which is at any time subject to Our security interest secures its own purchase price; and
- in addition, to the extent possible under PPS Law, all collateral which is at any time subject to Our security interest secures as a PMSI the purchase price of all collateral supplied to the Customer.

- This clause 10 does not limit what other amounts are secured under these Terms and Conditions.

- The parties agree that payments will be applied in the following order:
- to obligations that are not secured, in the order in which those obligations were incurred;
- to obligations that are secured, but not by PMSIs, in the order in which those obligations were incurred; and
- to obligations that are secured by PMSIs, in the order in which those obligations were incurred.

- The Customer agrees that We may register Our security interest as a PMSI and the Customer agrees that it must do anything which We require for the purposes of ensuring that Our security interest is enforceable, perfected and otherwise effective under the PPS Law, enabling Us to gain first priority (or any other priority agreed to by Us in writing) and enabling Us to exercise rights in connection with the security interest.

- Our rights under these Terms and Conditions are in addition to and not in substitution for Our rights under other law (including the PPS Law) and We at our sole discretion may decide whether to exercise Our rights under these Terms and Conditions.

- The provisions of the PPS Law confer rights on Us and the Customer agrees that in addition to these rights, if there is default by the Customer, We will have the right to seize, purchase, take possession or apparent possession, retain, deal with or dispose of any property and We may do so in any manner We see fit.

- The Customer hereby expressly waives its rights to receive a verification statement in relation to registration events in respect of commercial property under section 157 of the PPS Law.

INSOLVENCY OR OTHER DEFAULT OF CUSTOMER

- If the Customer fails to make payment for the  and/or Services in accordance with these Terms and Conditions or commits any other breach of these Terms and Conditions or if any distress or execution shall be levied upon any of the Customer’s  or if the Customer offers to make any arrangement with its creditors or commits an act of bankruptcy or if any petition in bankruptcy is presented against the Customer or if the Customer is unable to pay its debts as and when they fall due or if being a limited company any resolution or petition to wind up the Customer (other than for the purpose of amalgamation or reconstruction without insolvency) shall be passed or presented or if a receiver administrator administrative receiver or manager shall be appointed over the whole or any part of the Customer’s business or assets of the Customer shall suffer any analogous proceedings under foreign law, all sums outstanding in respect of the  and/or Services shall become payable immediately. We may in our absolute discretion and without prejudice to any other rights We may have:

- suspend all supply of Services to the Customer and/or terminate any agreement with the Customer without liability upon our part; and/or

- exercise any of our rights pursuant to clause 11.

- The Customer may not withhold payment of any invoice or other amount due to Us by reason of any right of set-off or counterclaim which the Customer may have or alleges to have for any reason whatsoever.

CUSTOMER’S OBLIGATIONS AND WARRANTIES

- In circumstances where the Customer is a company, the director(s) of the company guarantee to Us (and if there is more than one director, jointly and severally) the due and punctual performance and observance of these Terms and Condition, including payment of the Price, interest, costs and other moneys.

- In circumstances where the Customer has provided to Us any kind of documentation, correspondence or publication and has requested Us to provide mailing services for the dissemination, mailing or delivery of any such documentation, correspondence or publication, the Customer warrants that the documentation does not contain anything that is defamatory, offensive or contrary to law and agrees to indemnify Us and keep Us indemnified for all or any actions, claims, disputes or liabilities howsoever arising in circumstances where it is alleged or found that the documentation is defamatory, offensive or contrary to law.

- If the Parties agree that the Customer is responsible for supplying materials or equipment for the purposes of an order:
the Customer must supply enough materials, such quantity to be specified by Us;

- We will not be responsible for any defects in the Services supplied which are caused by defects in or the unsuitability of materials or equipment supplied by the Customer; and

- property in any materials supplied by the Customer and incorporated into the provision of Services passes to Us at the time of incorporation of any such materials supplied by the Customer.

- We hold all of the property of the Customer at the Customer’s risk and We have no obligation to insure any property of the Customer that is in Our possession. The Customer agrees that it must pay the cost of any insurance arranged by Us at the Customer’s request.

- If the Customer leaves property or materials in Our possession and requests that we dispose of it on their behalf, We may, dispose of or sell the property and/or materials and retain any proceeds of sale as compensation for holding and handling the property and/or materials and may invoice the Customer for any costs incurred with disposing of the property or materials.

- If the Customer leaves property or materials in Our possession, We may, 7 days after completion of the job or without any specific instructions from the Customer and without further notice to the Customer, dispose of or sell the property and/or materials and retain any proceeds of sale as compensation for holding and handling the property and/or materials and may invoice the Customer for any costs incurred with disposing of the property or materials.

INTELLECTUAL PROPERTY RIGHTS
- All Intellectual Property Rights and copyright associated with the Services supplied by Us, including the copyright in all artistic and literary works authored by Us, will remain vested in and the property of Us.

- The Customer warrants that it has copyright or a licence enabling it to authorise Us to reproduce all artistic or literary works supplied by the Customer to Us for the purposes of an order and the Customer hereby expressly authorises Us to reproduce all and any of such works for those purposes.

- The Customer warrants that use by Us of any designs or instructions supplied by the Customer will not infringe any intellectual property of any other person and the Customer indemnifies Us against any claim relating to or arising from the infringement of any intellectual property of any other person.

- The Customer indemnifies Us against all liability, loss, damage, claims, action and expenses incurred by Us in relation to or in any way directly or indirectly connected with any breach of copyright or of any rights in relation to copyright.

PRIVACY AND CONFIDENTIAL INFORMATION

-Our Privacy Policy explains how we collect, use and disclose information about our customers and their clients in accordance with the Australian Privacy Principals (APP) and the requirements of the Privacy Act 1988 (Cth) in all activities involving the collection, use, disclosure and handling of personal information. For more information please see our Privacy Policy https://www.thinkauto.com.au/privacy-policy

- The Customer and Us shall always hereafter with respect to any Confidential Information passing between them or divulged to the other by reason of this or any other agreement:

- maintain the secrecy of any Confidential Information;

- refrain from divulging or disclosing to any other person, firm, corporation or entity any Confidential Information;

- refrain from using or attempting to use Confidential Information in any manner which will or may cause or be calculated to  cause injury or loss to either the Customer or Us or their respective clients;

- refrain from copying or transmitting any Confidential Information, or attempting to do the same and use their best endeavours to protect the disclosure of any of the Confidential Information by or to third parties; and

- comply with our Privacy Policy, the Privacy Act 1988 (Cth) and any other applicable laws and codes dealing with privacy in relation to the collection, use, storage and disclosure of personal information.

GENERAL

- Any provision in these Terms and Conditions which is invalid or unenforceable in any jurisdiction must be read down for the purposes of that jurisdiction, if possible, to be valid and enforceable. If that provision cannot be read down, then it is capable of being severed to the extent of the invalidity or unenforceability without affecting the remaining provisions of these Terms and Conditions or affecting the validity or enforceability of that provision in any other jurisdiction.

15.2 These terms and conditions, together with Our policies available on our apply to the exclusion of all other terms and conditions, including any terms and conditions contained in any Quote or other document or information provided by the Customer. In the event of any inconsistency between those documents, these terms and conditions will take precedence. Where We accept your order, We do so based on these terms and conditions and any clarifications, such as inclusions and exclusions, included in Our Quote, unless expressly provided otherwise in writing.

- If We exercise or fail to exercise any right or remedy available to Us this shall not prejudice Our rights in exercising any other right or remedy and waiver of any of these Terms and Conditions by Us must be specified in writing and signed by Us.

- These Terms and Conditions are governed by the law in force in the State of Victoria and the parties submit to the non-exclusive jurisdiction of the courts of that State or Territory and any courts which may hear appeals from those courts in respect of any proceedings in connection with these Terms and Conditions.

- The Customer acknowledges and agrees that any information given to Us by the Customer may be disclosed to a referee or a credit agency in order to establish information relating to the Customer’s credit worthiness.

- Any notice required to be served on Us shall be in writing and served by hand or by pre-paid post to 8/431 Burke Road, Glen Iris Victoria, Australia 3146 or such other address as We may from time to time notify the Customer of and on the Customer at the Customer’s registered office or principal place of business.

-We reserve the absolute right to amend these Terms and Conditions by giving the Customer notice in writing. The amendment takes effect from and in respect of any order made by Customer on the date of such notice.

Cost of recovery clause that would suffice: Costs of Recovery - The debtor/s shall pay for all costs actually incurred by Think Auto Pty Ltd in the recovery of any monies owed under this Agreement. You agree to be liable for and indemnify Think Auto Pty Ltd. These costs include recovery agent costs, repossession costs, location search costs, process server costs and solicitor costs on a solicitor/client basis, debt collection commission and legal fees on an indemnity basis.