Terms and Conditions
YOU SHOULD READ THIS DOCUMENT CAREFULLY BEFORE ENTERING INTO AN AGREEMENT WITH TRADESMARTS (ACN 147 201 358) AS IT LIMITS LIABILITY
The following are the terms and conditions of the provision of Services by Tradesmarts Australia Pty Ltd (ACN 147 201 358) (“Tradesmarts”) for and at the request of the person, firm or company placing any order with Tradesmarts (“the Customer”).
- “Delivery address” means the address to which the Services are to be delivered as advised to Tradesmarts in writing whether signed or unsigned or verbally by the Customer.
- "Services" mean
- an estimate of quantities of materials nominated and ordered by the customer (“nominated materials”) taken off a plan provided by the customer or the customers nominated third party (“nominated third party”) to Tradesmarts;
- the providing of a draft quotation to the customer and/or the nominated third party or
- the providing of the Tradesmarts computer software and website to the customer or the nominated third party or any part thereof.
- “Price” means the price (which Tradesmarts may amend from time to time) for the Services plus any applicable GST as invoiced by Tradesmarts to the Customer.
- "We" or any adaptation thereof means Tradesmarts
- "You" or any adaptation thereof means the Customer
- "GST" means any Goods and Services Tax within the meaning of the GST Act.
- "GST Act" means A New Tax System (Goods & Services Tax) Act 1999 (as amended).
2. The Contract
- When the Customer accepts these Terms & Conditions a contract is created.
- Acceptance of these terms and conditions shall constitute an agreement for Tradesmarts to provide the Services as specified to the Customer on and subject to these terms and conditions without alteration unless otherwise expressly agreed by Tradesmarts in writing.
- Acceptance of these Terms & Conditions by the Customer will be by the placement of an order, whether verbally or in writing and if in writing, whether it is signed or unsigned and if signed, whether on the front or rear of the Order form, or as expressed or implied by virtue of acts done or not done or otherwise.
- Tradesmarts reserves the right at any time and from time to time to amend, vary or change these terms and conditions and such amendment, variation or addition shall have effect from the date of notification by Tradesmarts to the Customer.
- Acceptance of an order by Tradesmarts shall be conditional on and subject to Tradesmarts being satisfied as to the Customer’s creditworthiness. If Tradesmarts considers that the Customer’s creditworthiness is unsatisfactory then Tradesmarts shall be entitled to cancel any order without in any way being liable to the Customer for any claims, losses or expenses whatsoever resulting from the cancellation.
- Customers requesting credit must complete Tradesmarts credit application form and must provide three (3) written references and a current business name and/or company search of the Customer.
- Tradesmarts reserves the right in its absolute discretion to grant or decline to grant credit to any Customer and to suspend or cancel any credit entitlement with effect from the date of notification to the Customer.
3. Services & Third Parties
Services provided by Tradesmarts that involve information on which the Customer acts, such as pricing, supply or installation of materials, have an inherent risk of inaccuracy. Consequently, such information ought not be relied on as a sole basis on which the Customer acts, particularly pricing, supply or installation of materials, and the customer ought check accuracy by a reference to an alternative methodology before proceeding.
- Third parties
A third party, being a party who is not the “Customer” proper within the meaning of these terms, may not rely on or otherwise use the services supplied by Tradesmarts without the prior consent of Tradesmarts. Tradesmarts disclaims all liability to third parties for all costs, loss or damage and liability that a third party may suffer or incur arising from, related to, or in any way connected with the services without Tradesmart’s consent. In the event such consent has been granted or there are any circumstances where such consent is taken to have been granted , these terms and conditions apply to the third party on the basis that references to “customer” is a reference to the relevant third party.
4. Price & Payment
- The Price of the Services shall be the price charged by Tradesmarts prevailing at the date of acceptance of the Customer’s order for the Services plus any applicable GST (except to the extent it is expressly excluded).
- Prices are subject to change at the absolute discretion of Tradesmarts and shall be notified by Tradesmarts to the Customer.
- The Customer shall pay all and any delivery charges applicable to each order placed by the Customer.
- Payment can be made by the Customer to Tradesmarts by cash, cheque or direct transfer. For Customers tendering payment by cheque then payment shall not have been made until the cheque is honoured on presentment and the monies payable under it are received in Tradesmarts bank account in cleared funds and until such time receipt of the cheque shall not prejudice or affect Tradesmarts right or remedies against the Customer or the Services.
- Time is of the essence in respect of the payment obligations of the Customer. If payment is overdue that shall constitute a breach of these Terms & Conditions and the Customer will upon demand pay to Tradesmarts interest of 1.5% per month or part thereof on any overdue amount from the date that payment was due until payment in full is received by Tradesmarts.
- If payment is overdue Tradesmarts may in addition to its other remedies cancel or suspend the Customer’s entitlement to credit and require payment in cash on or before delivery of any Services ordered by the Customer under any contract, or withhold supply of any such goods until the Customer has paid or discharged all sums owing to Tradesmarts.
- Tradesmarts may in its absolute discretion apply any payments it receives from the Customer in and towards the satisfaction of any indebtedness of the Customer and it shall not be bound by any conditions or qualifications that the Customer may make in relation to payments made under this or any other agreement with Tradesmarts.
- The Customer must pay all costs and expenses incurred by Tradesmarts in connection with any order including legal expenses (on a solicitor-client basis) stamp duty and costs incurred in the recovery of monies owing by the Customer to Tradesmarts or in otherwise enforcing Tradesmarts rights against the Customer under an order.
- Tradesmarts will arrange for the delivery of the Services to the delivery address, the cost of which is to be borne by the Customer.
- Tradesmarts shall not be liable for any loss or damage of any kind including but not limited to errors or omissions to the Services howsoever arising.
- Any period or date for delivery of Services specified is intended as an estimate only and is not a contractual commitment.
- Tradesmarts will make all reasonable efforts to arrange for the delivery of the Services within any period stated but if, for any reason, including negligence by Tradesmarts, its servants, employees, agents, contractors or service providers delivery of the Services shall be delayed, Tradesmarts shall not be responsible for any loss sustained by the Customer or any other person firm or corporation by reason of such delay.
- If the cause of the delay was under the control of the Customer (or anyone employed by or acting on behalf of the Customer including but not limited to a nominated third party) then Tradesmarts shall at its sole discretion, be entitled to either increase the Price of the Services or demand payment of the Services ordered and if payment is not received by Tradesmarts the Customer will upon demand pay to Tradesmarts interest of 1.5% per month or part thereof as set out in Clause 3 above.
- The Services may be delivered in instalments in any quantities and each delivery shall be regarded as a separate contract independent from the other deliveries and the Services delivered shall be paid for accordingly. The failure to make delivery of any instalment shall not vitiate an order as to delivery of other instalments.
- Notwithstanding the above, the Customer is still required to pay Tradesmarts for Services already delivered and for Services ordered to specification and not yet delivered.
- Tradesmarts reserves the right to withhold delivery of all Services if the Customer is in default of any of its obligations with Tradesmarts.
6. Retention of Title
Until full payment in cleared funds is received by Tradesmarts for all Services supplied by it to the Customer, as well as all other amounts owing to Tradesmarts by the Customer:
- legal and equitable title and property in the Services remain vested in Tradesmarts and do not pass to the Customer;
- the Customer holds the Services as bailee and agent for Tradesmarts and the Customer acknowledges that a fiduciary relationship exists between the Customer and Tradesmarts;
- the Customer shall as a fiduciary of Tradesmarts, clearly show Tradesmarts ownership of the Services and shall keep books recording Tradesmarts ownership of the Services and the Customer’s sale or otherwise of them in accordance with this clause;
- the Customer may sell the Services as fiduciary agent for Tradesmarts to a third party in the normal course of the Customer’s business provided that where the Customer is paid by that third party, the Customer holds the proceeds of sale to the extent of the amount owing by the Customer to Tradesmarts at the time of receipt of such proceeds on trust for Tradesmarts;
- the Customer is required to hold the proceeds of any sale of the goods on trust for Tradesmarts in a separate account and not mix those proceeds with any other monies;
- if the Customer uses the Services in some process or activity of its own or with some third party, then the Customer shall hold such part of the proceeds of such process or activity as relates to the Services on trust for Tradesmarts. Such part shall be deemed to equal in dollar terms the amount owing by the Customer to Tradesmarts at the time of the receipt of such proceeds. The Customer must keep that part of the proceeds separate on trust for Tradesmarts and not mix those proceeds with any other monies;
7. Risk and Insurance
Notwithstanding that property and title in the Services may not have passed, the risk of loss or damage to the Services and/or insurance responsibility for theft, damage or otherwise in respect to the Services will pass to the Customer once the Services have been dispatched to the Customer.
8. Exclusion of Liability and Loss or Damage
- Except as expressly provided to the contrary in this Agreement, all representations, warranties, undertakings, inducements, representations, terms and conditions in relation to the Services or to these Terms & Conditions (whether express, implied, statutory or otherwise) are hereby excluded to the maximum extent permitted by law.
- Without limiting the generality of the preceding clause, Tradesmarts shall not be under any liability to the Customer in respect of any loss or damage (including consequential loss or damage) howsoever caused, which may be suffered or incurred or which may arise, directly or indirectly, in respect of the Services. The total liability of Tradesmarts for loss or damage of every kind arising out of the purchase of the Services, whether in tort, contract or any other cause of action, is limited to the repair or replacement of the Services not exceeding the purchase price of the Services.
- Where any Act of Parliament implies in this Agreement any term, condition or warranty and such Act avoids or prohibits provisions in a contract excluding or modifying the application of, or exercise of, or liability under, such term, condition or warranty, such term, condition or warranty shall be deemed to be included in this Agreement. However, the liability of Tradesmarts for any breach of such term, condition or warranty shall be limited at the option of Tradesmarts to any one or more of the following:
- the provision of the services again; or
- payment of the costs of having the relevant services provided again at the option of Tradesmarts.
- Any claim by the Customer in respect of defective Services must be made by telephone and confirmed by facsimile or email to Tradesmarts within 48 hours of the date of delivery of the Services to the Customer. (e) The Customer indemnifies and holds harmless Tradesmarts against any and all actions, claims, proceedings, costs, losses, expenses, liabilities, including legal fees, whatsoever and howsoever caused or arising out of, in connection with or resulting from the Services or the use of the Services including the manufacture, delivery, use, operation and/or erection of the nominated materials and all damages or injuries caused thereby to anyone whatsoever.
- The Customer acknowledges that Tradesmarts relies on the plans specifications and information provided by the customer or the customers nominated third party in providing the services and acknowledges that Tradesmarts is not liable for, and hereby releases Tradesmarts from, all claims in respect of faulty or defective plans specifications and information.
- Tradesmarts only use and collect personal information about the Customer where the information is necessary for us to perform one or more necessary functions or activities.
- Tradesmarts uses and collects personal information about the Customer primarily in connection with the sale and/or supply of the Services and for the secondary purposes of billing and account management, in accordance with the Information Privacy Principles contained in the Privacy Act 1988.
- If the Customer does not provide the personal information requested, Tradesmarts may be restricted in, or prevented from performing any one or more of its functions in connection with the sale and/or supply of the Services.
- Tradesmarts may disclose personal information about you for the purposes set out in Clause 9.2 hereof to suppliers, agents and/or contractors who may need the information in order to provide us with supplies, thereby enabling us to perform our functions and activities in connection with the sale and/or supply of the Services to you.
- The Customer may request access to personal information we hold about you and Tradesmarts shall grant you access to the same. In the event that any information we hold about you, is inaccurate, you may also contact us to request that the relevant information be corrected as soon as is practically possible.
- For the purposes of the ongoing credit management of the Customer's account, it may be necessary to disclose to a Credit Reporting Agency, information about the Customer or your account held with us, including but not limited to the following:
- personal details for the purposes of identification, such as, your name, current and/or previous addresses, occupation, Driver’s Licence number, and date of birth;
- details of the Application submitted to us by you, including particulars of any credit limit on your account;
- details of any amounts overdue for at least ninety (90) days, after reasonable steps have been taken by us to recover any such overdue amounts;
- where such amounts have previously been reported but no longer remain outstanding, confirmation that payment of such outstanding amounts has been made;
- details of cheques, credit card or direct debit payments which have been dishonoured;
- particulars of any Court judgments or bankruptcy orders made against you;
- confirmation that you have breached the terms of your Agreement with us;
- the date upon which we cease sell or supply the Services to you, as a result of your breach.
- The Customer authorises Tradesmarts to disclose the information set out in Sub Clauses 9.6(a)-(h) to a Credit Reporting Agency, that we as a credit provider, are permitted to give under the Privacy Act 1988.
- These terms and conditions shall be governed by the laws of the State of Victoria.
- In the event that any of the provisions herein contained shall be held to be unenforceable or invalid all other provisions shall continue in full force and effect to the extent that they can be severed from the part which has been held to be unenforceable or invalid.
- You may not assign or transfer any of its rights under these terms and conditions without Tradesmarts’ consent.