Terms and Conditions
(ACN 162 295 874)
Please ensure you carefully read all Terms below. In particular, we draw your attention to the following key clauses:
- Clause 2: These Terms apply to every Agreement and cannot be varied or replaced without TSC’s agreement.
- Clause 3: TSC may vary its pricing to account for, among other things, requested variation or costs of production.
- Clause 5: If you default in making payment of amounts owed to TSC, you may incur further costs including interest.
- Clause 10: Subject to non-excludable rights under the ACL, TSC limits its liability to the maximum extent allowed.
1. Definitions
In these Terms:
ACL means the Australian Consumer Law Schedule of the Competition and Consumer Act 2010 (Cth) and its associated Regulations as amended;
Agreement means any agreement for the provision of services by the TSC to the Customer, as may be evidenced in these Terms and, any annexures or schedules;
Confidential Information means a party’s:
- business, customer, financial and supplier information and listings, price structures and databases;
- technical information, marketing and sales plans, and strategies;
- information which, by its nature, places that party at an advantage over its competitors; or
- information of any other kind that would otherwise at law be considered confidential or secret;whether or not marked confidential, but does not include information which:
- at the time of first disclosure by a party to the other party is already in the public domain; or
- at the time of first disclosure by a party to the other party, is already known to the other party; or
after disclosure to the other party, becomes part of the public domain other than by disclosure in breach of the provisions of these Terms;
consumer is as defined in the ACL;
consumer contract is as defined in the ACL;
Customer means the person, jointly and severally if more than one, acquiring services from the TSC;
Force Majeure Event means an event beyond the reasonable control of a party including, without limitation. accident, act of God, act of government, act or threat of terrorism or war, breakdown, cyclone, earthquake, epidemic, export/import restriction, fire, flood, hurricane, industrial dispute, lockout, pandemic, quarantine, strike, travel restriction, or tsunami;
goods means the consumables, spare parts, or other goods supplied by TSC to the Customer;
GST means the Goods and Services tax as defined in A New Tax System (Goods and Services Tax) Act 1999 (Cth) and its associated Regulations as amended;
Initial Term means, where TSC provides its goods or services on a subscription basis, the Initial Term as indicated in TSC’s Proposal or Quotation;
Order means an order made by the Customer to TSC for provision of services on these Terms;
Privacy Act means the Privacy Act 1988 (Cth), the Australian Privacy Principles, and associated Regulations as amended
Proposal means a written proposal for proposed supply of services by TSC to the Customer, as may be updated by agreement by the parties in writing from time to time;
Quotation means a written quotation for proposed supply of services by TSC to the Customer;
services means the maintenance, remote support and / or other services supplied by TSC to the Customer;
small business contract is as defined in the ACL;
Terms means these Terms and Conditions of Trade;
TSC means Total Spraybooth Care Pty Ltd ACN 162 295 874;
2. Basis of Agreement
2.1. Unless otherwise agreed by the TSC in writing, the Terms apply exclusively to every Agreement and cannot be varied or replaced by any other terms, including the Customer’s terms and conditions of purchase (if any).
2.2. Any quotation provided by TSC to the Customer for the proposed supply of goods or services is:
(a) valid for 30 days;
(b) an invitation to treat only; and
(c) only valid if in writing.
2.3. The Terms may include additional terms in a Quotation, which are not inconsistent with the Terms.
2.4. An Agreement is made when TSC accepts, in writing or electronic means, an Order from the Customer or provides the Customer with the services.
2.5. TSC may refuse to accept any Order.
2.6. The Customer must provide TSC with its specific requirements, if any, in relation to the services.
2.7. TSC may amend or vary these Terms by written notice to the Customer at any time, and such amendment or variation will apply to Quotations or Orders after the notice date.
3. Pricing
3.1. Unless otherwise agreed by the parties in writing, TSC will provide its goods and services to the Customer:
(a) on a subscription basis; or
(b) on an ad hoc basis in esponse to a specific request; or
(c) partly on a subscription basis and partly ad hoc;
as set out in TSC’s Proposal or Quotation documents
3.2. Unless otherwise agreed by the parties in writing:
(a) prices stated in a Proposal or Quotation do not include GST or any other duties or taxes applicable to the provision of the services; and
(b) the Customer agrees to, and must, pay to TSC an amount equal to the applicable GST, duties and taxes, in addition to the price of the services.
3.3. Where TSC provides its goods or services on a subscription basis:
(a) TSC may alter or vary its price at any time;
(b) any such alteration or variation to the price takes effect at the commencement of the next billing interval, and
(c) if the Customer does not accept any alteration or variation to the price made in accordance with this clause, it may terminate the Agreement by providing notice in writing prior to the commencement of the next billing interval, with such termination to take effect from the commencement of the next billing interval.
3.4. Where TSC provides its goods or services on a subscription basis or an ad hoc basis, if the Customer requests any variation to the Agreement, TSC may notify the Customer of its intention to vary the price to account for the variation, and in response the Customer may:
(a) accept the varied price, and continue under the Agreement as varied; or
(b) reject the varied price, in which case the Customer’s request for a variation is deemed to be withdrawn and the parties continue under the Agreement as originally intended.
3.5. Where TSC provides its goods or services on an ad hoc basis, if:
(a) the Agreement is not a consumer contract or a small business contract; and
(b) there is any change in the costs incurred by TSC in relation to provision of the services;
TSC may vary its price to take account of any such change by notifying the Customer, and the Customer is required to pay such varied amount.
3.6. Where TSC provides its goods or services on an ad hoc basis, if:
(a) the Agreement is a consumer contract or a small business contract; and
(b) there is any change in the costs incurred by TSC in relation to provision of the services;
TSC may notify the Customer of its intention to vary its price to account for such change, and in response the Customer may:
(c) accept the varied price, and continue under the Agreement as varied; or
(d) reject the varied price, and if the parties are unable to agree on a price to take account of the relevant change, the Customer may terminate the Agreement.
4. Payment
4.1. TSC may request a deposit prior to providing any goods or services, to be paid prior to provision of goods or services.
4.2. Unless otherwise agreed by the parties in writing:
(a) where TSC provides its goods or services on an ad hoc basis, full payment for the services must be made within 30 days of the date of TSC’s invoice, without deduction or set-off; and
(b) where TSC provides its goods or services on a subscription basis, full payment must be made in full by no later than the date specified by TSC for each billing interval in the manner set out in the Proposal or Quotation (as applicable).
4.3. Payment by cheque is not deemed made until the proceeds of the cheque have cleared.
4.4. Payment terms may be amended or revoked by TSC immediately upon giving the Customer written notice.
4.5. The time for payment is of the essence.
5. Payment Default
5.1. If the Customer defaults in payment by the due date of any amount payable to TSC, then without prejudice to any of its other accrued or contingent rights:
(a) charge the Customer interest on any sum due at the prevailing rate pursuant to the Penalty Interest Rates Act 1983 (Vic) plus 2% for the period from the due date until the date of payment in full;
(b) charge the Customer for, and the Customer must indemnify TSC from, all costs and expenses (including without limitation all legal costs and expenses) reasonably incurred by it resulting from the default or in taking action to enforce the Agreement;
(c) cease or suspend supply of any further services;
(d) by written notice to the Customer, terminate any uncompleted contract with the Customer.
5.2. Subject to any applicable statutory stay, clauses 5.1(c) and 5.1(d) may also be relied upon, at TSC’s option:
(a) where the Customer is a natural person and becomes bankrupt or enters into any scheme of arrangement or any assignment or composition with or for the benefit of his or her creditors or any class of his or her creditors generally; or
(b) where the Customer is a corporation and, it enters into any scheme of arrangement or any assignment or composition with or for the benefit of its creditors or any class of its creditors generally, or has a liquidator, administrator, receiver or manager or similar functionary appointed in respect of its assets, or any action is taken for, or with the view to, the liquidation (including provisional liquidation), winding up or dissolution without winding up of the Customer.
6. Performance of Agreement
6.1. Any period or date for the provision of services stated by TSC is an estimate only and not a contractual commitment.
6.2. TSC will use its reasonable endeavours to meet any estimated dates for provision of the services but will not be liable for any loss or damage suffered by the Customer or any third party for failure to meet any estimated date.
6.3. If TSC cannot complete the services by any estimated date, it will complete the services within a reasonable time.
6.4. The Customer acknowledges and agrees that:
(a) TSC’s services may involve the use of, connection to, and / or connection of goods or equipment to, the Internet (Internet Use);
(b) the Customer is responsible for ensuring it has on hand such hardware and connectivity infrastructure as may be necessary to facilitate the Internet Use;
(c) TSC does not guarantee or warrant that any such Internet Use will be available, reliable, uninterrupted, free from error, or is free from any virus;
(d) TSC does not guarantee or warranty that any such Internet Use is impenetrable, unbreachable or otherwise beyond or safe from cyber-attack;
(e) the Customer’s Internet Use is at its own risk and
(f) to the maximum extent permitted at law, TSC excludes liability for any damage or loss arising from any breach or cyber-attack on or during such Internet Use.
7. Passing of property
7.1. Until TSC receives full payment in cleared funds for all goods and services supplied by it to the Customer, title and property in all goods remain vested in TSC and do not pass to the Customer.
8. Cancellation or termination
8.1. Except as expressly provided for in these Terms, or as otherwise agreed by the parties in writing, neither party may unilaterally cancel an Order or subscription once it has been accepted, and any attempt by either party to do so will be void.
8.2. Where TSC provides its goods or services on a subscription basis, the Customer may terminate its subscription at any time after expiry of the Initial Term by giving 30 days’ notice in writing to TSC.
8.3. Where TSC does not provide its goods or services on a subscription basis, the parties may mutually agree to cancel an Order, and where they do so, the Customer is liable to TSC in the amount of, and must make payment to TSC on demand:
(a) an amount equal to any costs of expenses incurred by TSC in furtherance of the Order the subject of cancellation as at the date of cancellation; and
(b) an amount equal to 50% of the net profit TSC would have received if the Order had proceeded to completion as originally envisaged.
9. Confidentiality
9.1. Each party must keep the Confidential Information of the other party strictly confidential, and not disclose such Confidential Information to any other party except:
(a) with prior, written consent; or
(b) where compelled by law to do so; or
(c) for the purpose of obtaining bona fide accounting or legal advice.
10. Liability
10.1. Except as the Terms specifically state, or as contained in any express warranty provided in relation to the goods or services, the Agreement does not include by implication any other term, condition or warranty in respect of the quality, merchantability, acceptability, fitness for purpose, description or performance of the services or any contractual remedy for their failure.
10.2. If the Customer is a consumer nothing in these Terms restricts, limits or modifies the Customer’s rights or remedies against TSC for failure of a statutory guarantee under the ACL.
10.3. To the maximum extent permitted at law, TSC’s liability to the Customer arising in any way under an Agreement or these Terms is limited to:
(a) repair or replacement of goods;
(b) supply of equivalent goods;
(c) payment of the cost of repair or replacement goods;
(d) payment of the cost of supply of equivalent goods;
(e) the re-supply of the services; or
(f) payment of the cost of having the services re-supplied.
10.4. TSC is not liable for any indirect or consequential losses or expenses suffered by the Customer or any third party, howsoever caused, including but not limited to loss of turnover, profits, business or goodwill or any liability to any other party, except to the extent of any liability imposed by the ACL.
10.5. Nothing in the Terms is to be interpreted as excluding, restricting or modifying or having the effect of excluding, restricting or modifying the application of any State or Federal legislation applicable to the supply of services which cannot be excluded, restricted or modified.
11. Force Majeure
11.1. Subject to clause 11.2, neither party will be liable in any way howsoever arising under an Agreement or these Terms to the extent it is prevented from acting by a Force Majeure Event.
11.2. Nothing in this clause 11 operates to excuse the Customer from any obligation to pay money to TSC.
11.3. If a party is prevented from acting by reason of a Force Majeure Event, that party must:
(a) promptly notify the other party of the existence and expected duration of the Force Majeure Event;
(b) take all reasonable steps to alleviate or remedy the effect of the Force Majeure Event insofar as it is preventing the performance of the party’s obligation;
(c) subject to clause 11.4, resume performance of the obligation prevented by the Force Majeure Event as soon as possible after the Force Majeure Event ceases.
11.4. If a Force Majeure Event prevents performance of an obligation beyond 60 days, either party may terminate the Agreement by written notice.
12. Miscellaneous
12.1. The law of Victoria from time to time governs the Terms.
12.2. The parties agree to the non-exclusive jurisdiction of the courts of Victoria, the Federal Court of Australia, and of courts entitled to hear appeals from those Courts.
12.3. A party’s failure to enforce any of these Terms shall not be construed as a waiver of any of that party’s rights.
12.4. If a provision of these Terms is unenforceable it must be read down to be enforceable or, if it cannot be read down, it must be severed from the Terms, without affecting the enforceability of the remaining terms.
12.5. A notice must be in writing and handed personally or sent by email or prepaid mail to the addressee’s last known address.
12.6. Each party must comply with the requirements of the Privacy Act, insofar as such requirements apply to them.
12.7. TSC deals with personal information in accordance with the terms of its Privacy Policy located at: https://totalsprayboothcare.com/privacy-policy.
12.8. To the maximum extent permitted at law, neither party will be liable to the other party or any third party for any contravention of the Privacy Act to the extent:
(a) such contravention is undertaken by a former employee or contractor; and
(b) such former employee or contractor has acted in breach of its post-employment or post-contract obligations