TCG OCEANIA PTY LTD Business Terms and Conditions
TERMS AND CONDITIONS
These terms and conditions are between TCG Oceania Pty Ltd (ABN 64 649 094 833), (we, us or our) and you, the party stated in the Quote (you or your), together the Parties and each a Party. These terms and conditions and the Quote form the entire agreement under which we will provide the Services to you.
Our Disclosure to you:
Please read this Agreement carefully prior to accepting this Agreement. By accepting this Agreement, you agree that:
• subject to your Consumer Law Rights, we will not refund any amounts paid by you (see clauses 6.2(b) and 7.4);
• subject to your Consumer Law Rights, you have not relied on any representations or warranties made by us prior to entering this Agreement that are not included in this Agreement (see clause 5.2(b)); and
• subject to your Consumer Law Rights, we exclude our Liability for any damage or defects to Your Cards existing at the time we accept delivery of Your Cards (see clause 3.4), after we release Your Cards to Australia Post or any other delivery service provider for return delivery to you (see clause 3.1), Force Majeure Events (see clause 11.6), and Consequential Loss (see clause 8.1(a)); and
• subject to your Consumer Law Rights, our liability for the supply of the Services will be limited to, at our discretion the resupply of the Services or the repayment of the Price paid by you to us (see clause 8.1(c)).
1. ACCEPTANCE 1.1 You have requested the Services set out in the Quote, and you accept this Agreement by the earlier of:
(a) clicking a box indicating your acceptance;
(b) accepting the Quote online or sending an email accepting the Quote (expressly or impliedly); and
(c) making part or full payment of the Price. 1.2 This Agreement will commence on the date of your acceptance in accordance with clause 1.1 and will continue until we have completed the Services (as determined by us, acting reasonably), unless earlier terminated in accordance with its terms.
2. SERVICES 2.1 In consideration of your payment of the Price, we agree to provide you the Services in accordance with this Agreement, whether ourselves or through our Personnel.
2.2 We will not be responsible for any Services unless expressly set out in the inclusions in the Quote.
2.3 You acknowledge and agree that any dates for delivery or for completion notified by us are estimates only. We agree to use reasonable endeavours to provide the Services within a reasonable time.
2.4 All variations to this Agreement must be agreed in writing between the Parties and will be priced in accordance with our Quote, any schedule of rates provided by us, or otherwise as reasonably agreed between the Parties.
(a) we consider that any instruction or direction from you constitutes a variation to the scope of our obligations under this Agreement, or would otherwise result in us suffering or incurring any additional cost or delay; or
(b) if upon receipt of Your Cards we identify that the quantity or nature of Your Cards is different from that anticipated in our Quote, and requires a variation to the Services,
then we will not be obliged to comply with such instruction or direction, or to provide the varied Services, unless agreed in accordance with clause 2.4.
2.6 We may require payment of any adjustment to the Price to account for a variation in accordance with clause 2.4 prior to commencement of the relevant Services.
3. Your Cards, Title and Risk 3.1 In order for us to provide the Services, you agree to arrange for the posting and delivery of Your Cards to us (at your own cost). Title to Your Cards will remain with you at all times. Risk in Your Cards will transfer to us when we accept delivery of Your Cards and will remain with us until we release Your Cards to Australia Post or any other service provider for return delivery as instructed by you. You irrevocably authorise us to engage Australia Post or any other delivery service provider as we reasonably consider appropriate on your behalf for return delivery of Your Cards to you. You irrevocably authorise us to
release Your Cards to Australia Post or any other delivery service provider as we reasonably consider appropriate for return delivery of Your Cards to you. 3.2 You must notify us in writing if you require return postage insurance for Your Cards. The postage and insurance costs of us returning Your Cards to you (Return Delivery Fees) are payable by you and will be set out in the Quote or otherwise notified by us to you, and you agree to pay such amounts in accordance with the Payment Terms.
3.3 By accepting this Agreement, you consent to us taking photos of Your Cards as part of the Services, and you agree we retain ownership of any such photos.
3.4 We will not be liable for, and you waive and release us from, any Liability, arising from any damage or defects to Your Cards existing at the time we accept delivery of Your Cards or caused after the time we release Your Cards to Australia Post or any other delivery service provider for return delivery of Your Cards to you, except to the extent caused by our or our Personnel’s acts or omissions.
4. PRICE AND PAYMENT 4.1 In consideration for us providing the Services, you agree to pay us the Price, any Return Delivery Fees and any other amount payable to us under this Agreement, in accordance with the Payment Terms. All amounts are stated in Australian dollars and are exclusive of GST (unless otherwise stated).
4.2 Unless otherwise agreed between the Parties, payment of the Price must be paid in full before we commence the performance of the Services.
4.3 If any payment has not been made in accordance with the Payment Terms, we may (at our absolute discretion):
(a) charge interest at a rate equal to the Reserve Bank of Australia’s cash rate from time to time plus 2% per annum, calculated daily and compounding monthly, on any such amounts unpaid after the due date for payment in accordance with the Payment Terms; and
(b) after a period of 5 business days, cease providing the Services, and recover, as a debt due and immediately payable from you, our additional costs of doing so. 4.4 If and when applicable, GST payable on the Price will be set out in our invoice. You agree to pay the GST amount at the same time as you pay the Price.
5. OBLIGATIONS AND WARRANTIES 5.1 Each Party represents, warrants and agrees that:
(a) it has full legal capacity, right, authority and power to enter into this Agreement, to perform its obligations under this Agreement, and to carry on its business;
(b) this Agreement constitutes a legal, valid and binding agreement, enforceable in accordance with its terms;
(c) if applicable, it holds a valid ABN which has been advised to the other Party; and
(d) if applicable, it is registered for GST purposes. 5.2 You represent, warrant and agree:
(a) to comply with this Agreement and all applicable Laws;
(b) you have not relied on any representations or warranties made by us in relation to the Services (including as to whether the Services are or will be fit or suitable for your particular purposes), unless expressly stipulated in this Agreement;
(c) that you (and to the extent applicable, your Personnel) will provide us with all documentation, information, instructions, cooperation and access reasonably necessary to enable us to provide the Services;
(d) that the information and documentation you provide to us is true, correct and complete; and
(e) you will not infringe any third party rights in working with us and receiving the Services.
6. TERMINATION 6.1 This Agreement will terminate immediately upon written notice by a Party (Non-Defaulting Party), if:
(a) the other Party (Defaulting Party) breaches a material term of this Agreement and that breach has not been remedied within 10 business days of the Defaulting Party being notified of the breach by the Non-Defaulting Party; or
(b) the Defaulting Party is unable to pay its debts as they fall due.
6.2 Upon termination or expiry of this Agreement:
(a) we will immediately cease providing the Services;
(b) without limiting your Consumer Law Rights, you agree that any payments made by you to us are not refundable to you;
(c) you are to pay for all Services provided prior to termination, including Services which have been provided and have not yet been invoiced to you, and all other amounts due and payable under this Agreement; and
(d) you agree to promptly return (where possible), or delete or destroy (where not possible to return), any information, documentation or material owned by us that is in your possession or control, subject to any rights you may have to any Intellectual Property in accordance with clause 9. 6.3 The accrued rights, obligations and remedies of the Parties are not affected by termination of this Agreement.
6.4 This clause 6 will survive the termination or expiry of this Agreement.
7. YOUR CONSUMER LAW RIGHTS 7.1 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 Services which cannot be excluded, restricted or modified (Consumer Law Rights). Nothing in this Agreement excludes your Statutory Rights as a consumer under the ACL.
7.2 You agree that our Liability for the Services is governed solely by the ACL and this Agreement.
7.3 Subject to your Consumer Law Rights, we exclude all implied warranties, representations and guarantees of any kind (whether statutory or otherwise), unless expressly stipulated in this Agreement.
7.4 Subject to your Statutory Rights, all amounts paid by you for the Services are non-refundable.
7.5 This clause 7 will survive the termination or expiry of this Agreement.
8. LIMITATION OF LIABILITY 8.1 Limitation of Liability: Despite anything to the contrary, to the maximum extent permitted by law, and subject to your Consumer Law Rights:
(a) neither Party will be liable for any Consequential Loss;
(b) a Party’s liability for any Liability under this Agreement will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the acts or omissions of the other Party (or any of its Personnel), including any failure by that other Party to mitigate its loss; and
(c) our aggregate liability for any Liability arising from or in connection with this Agreement will be limited to us resupplying the Services to you or, in our sole discretion, to us repaying you the amount of the Price paid by you to us in respect of the supply of the relevant Services to which the Liability relates.
8.2 Indemnification: You agree to defend, indemnify, and hold us harmless, including our subsidiaries, affiliates, and all of our respective officers, agents, partners, and employees, from and against any loss, damage, liability, claim, or demand, including reasonable solicitors’ fees and expenses, made by any third party due to or arising out of:
- Your Cards;
- Your request for Services;
- use of the Site;
- breach of these Terms and Conditions;
- any breach of your representations and warranties set forth in these Terms and Conditions;
- your violation of the rights of a third party, including but not limited to intellectual property rights; or
- any overt harmful act toward any other user of the Site with whom you connected via the Site.
8.3 Notwithstanding the foregoing, we reserve the right, at your expense, to assume the exclusive defence and control of any matter for which you are required to indemnify us, and you agree to cooperate, at your expense, with our defence of such claims. We will use reasonable efforts to notify you of any such claim, action, or proceeding which is subject to this indemnification upon becoming aware of it.
8.4 This clause 8 will survive the termination or expiry of this Agreement.
9. INTELLECTUAL PROPERTY 9.1 As between the Parties, each Party retains all Intellectual Property Rights in its Intellectual Property developed prior to or independently of this Agreement. Nothing in this Agreement constitutes an assignment or transfer of such rights.
9.2 As between the Parties, ownership of all Intellectual Property Rights in any Intellectual Property developed, adapted, modified or created in connection with this Agreement or the performance of the Services will at all times vest, or remain vested, in us.
9.3 This clause 9 will survive the termination or expiry of this Agreement.
10. CONFIDENTIALITY 10.1 Subject to clause 10.2, you must (and must ensure that your Personnel do) keep confidential, and not use or permit any unauthorised use of, all Confidential Information.
10.2 Clause 10.1 does not apply where the disclosure is required by law or the disclosure is to a professional adviser in order to obtain advice in relation to matters arising in connection with this Agreement and provided that you ensure the adviser complies with the terms of clause 10.1.
10.3 This clause 10 will survive the termination or expiry of this Agreement.
11. GENERAL 11.1 Amendment: This Agreement may only be amended in writing and as agreed by the Parties.
11.2 Assignment: Subject to clause 11.3, a Party must not assign or deal with the whole or any part of its rights or obligations under this Agreement without the prior written consent of the other Party (such consent is not to be unreasonably withheld).
11.3 Assignment of Debt: You agree that we may assign or transfer any debt owed by you to us, arising under or in connection with this Agreement, to a debt collector, debt collection agency, or other third party.
11.4 Disputes: A Party may not commence court proceedings relating to any dispute arising from this Agreement (Dispute) without first meeting with a senior representative of the other Party to seek (in good faith) to resolve the Dispute. Nothing in this clause will operate to prevent a Party from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction, or will operate to prevent a Party from taking steps to recover any debt.
11.5 Entire agreement: Subject to your Consumer Law Rights, this Agreement contains the entire understanding between the Parties, and the Parties agree that no representation or statement has been made to, or relied upon by, either of the Parties, except as expressly stipulated in this Agreement, and this Agreement supersedes all previous discussions, communications, negotiations, understandings, representations, warranties, commitments and agreements, in respect of its subject matter.
11.6 Force majeure: Neither Party will be liable for any delay or failure to perform their respective obligations under this Agreement if such delay or failure is caused or contributed to by a Force Majeure Event. This clause will not apply to a Party’s obligation to pay any amount that is due and payable to the other Party under this Agreement.
11.7 Further assurance: You agree to promptly do all things and execute all further instruments necessary to give full force and effect to this Agreement and your obligations under it.
11.8 Governing law: This Agreement is governed by the laws of New South Wales. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in New South Wales and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.
11.9 Joint and several Liability: Where you constitute two or more individuals or entities, you will each be jointly and severally liable under this Agreement.
11.10 Notices: Any notice given under this Agreement must be in writing addressed to the relevant address last notified by the recipient to the Parties. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 4 days in the case of post, or at the time of transmission in the case of transmission by email.
11.11 Precedence: To the extent there is any ambiguity, discrepancy or inconsistency in or between the terms of the Agreement and the Quote, the terms of this Agreement will prevail.
11.12 Relationship of Parties: This Agreement is not intended to create a partnership, joint venture, employment or agency relationship between the Parties.
11.13 Severance: If any provision (or part of it) under this Agreement 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 this Agreement 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 this Agreement and the remaining provisions (and remaining part of the provision) of this Agreement is valid and enforceable.
12. INTERPRETATION & DEFINITIONS 12.1 In this Agreement, unless the context otherwise requires, capitalised terms have the meanings given to them in the Quote, and:
Agreement means these terms and conditions, which includes the Quote, and any documents attached to, or referred to in, each of them.
Confidential Information includes information which:
(a) is disclosed to you in connection with this Agreement at any time;
(b) is prepared or produced under or in connection with this Agreement at any time;
(c) relates to our business, assets or affairs; or
(d) relates to the subject matter of, the terms of and/or any transactions contemplated by this Agreement,
whether or not such information or documentation is reduced to a tangible form or marked in writing as “confidential”, and howsoever you receive that information.
Consequential Loss includes any consequential loss, indirect loss, real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise. The Parties acknowledge and agree that your obligation to pay us the Price and any other amounts due and payable by you to us under this Agreement will not constitute “Consequential Loss” for the purposes of this definition.
Force Majeure Event means any one, or combination of law or government regulation which comes into force or any act of God, flood, war, revolution, civil commotion, political disturbance, fire explosion, ionizing radiation, contamination by radioactivity, nuclear, chemical or biological contamination, disease, epidemic, pandemic (including in relation to the coronavirus, severe acute respiratory syndrome coronavirus 2, or any mutation thereof), government sanctioned shutdown, global economic downturn or any other cause whatsoever over which a Party has no control.
GST has the meaning which it is given in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Intellectual Property means any copyright, registered or unregistered designs, patents or trade mark rights, domain names, know-how, inventions, processes, trade secrets or Confidential Information, circuit layouts, software, computer programs, databases or source codes (including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing).
Intellectual Property Rights means for the duration of the rights in any part of the world, any industrial or intellectual property rights, whether registrable or not, including in respect of Intellectual Property.
Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or a Party to this Agreement or otherwise.
Payment Terms means the Price, method and timing of payment, as set out in the Quote.
Personnel means, in respect of a Party, any of its employees, consultants, suppliers, subcontractors or agents.
Price means the price set out in the Quote for the performance of the Services and includes any Return Delivery Fees, as adjusted in accordance with this Agreement.
Quote means the quote (including any online quote) to which this Agreement is attached by reference.
Return Delivery Fees has the meaning given in clause 3.2.
Services means the services we agree to perform under this Agreement, as further particularised in the Quote, and as adjusted in accordance with this Agreement.
Site means the website operated by us. It is available at: www.tradingcardgrading.com.au and may be available through other addresses or channels.
Your Cards means your cards that you provide to us, the subject of the Services.