1.Introduction
1.1 Terms
These Terms govern your use of the Website and the relationship between you and The Collective Advantage (TCA). They form a binding legal agreement between you and TCA.
1.2 Use of the Website
(a)By using the Website, you acknowledge that you have read, understood, and agree to be bound by these Terms.
(b)You must only use the Website in accordance with these Terms.
(c)If you do not agree to these Terms, you must not use the Website.
1.3Variation
(a)TCA may at any time amend these Terms.
(b)You should check the Website regularly to ensure you are familiar and comply with these Terms.
2. YOUR OBLIGATIONS
2.1 Warranties
By using the Website you warrant to TCA that:
(a)you are over the age of 18 years;
(b)you will comply with these Terms and any additional terms imposed by a Partner on a Direct Purchase;
(c)your Payment Facility is, and will at all times be, sufficient to meet all charges arising from your Order;
(d)you will keep your Log In Details secure;
(e)you will not access or use the Website:
(1)for any activities that breach any laws, or infringe the rights of any third parties or Partners;
(2)in a way that interferes with the use of the Website by other Members;
(3)in a way that interferes with the functioning or security of the Website;
(4)in a way that defames, harasses or menaces TCA or any other person;
(5)for the purpose of conducting a commercial venture, data mining, automated querying or similar data extraction process without the express written consent of TCA;
(6)to resell Products purchased through the Website;
(f)you will not permit any other person to use your Account; and
(g)you will not disclose your Log In Details.
2.2 Indemnity
You indemnify TCA from and against all Claims arising out of or in connection with:
(a)your use of the Website;
(b)use of the Website by your agents, employees or assigns; and
(c)if you disclose your Log In Details, any use of your Account by another person.
3. Registration
3.1Members may purchase Products
To purchase Products through the Website, you must be a Member and have nominated a Payment Facility.
3.2 Member registration
To become a Member and set up an Account, you must:
(a)complete and submit The Collective Advantage Client Information Sheet; and
(b)pay the Annual Membership Fee.
4. Deactivation AND SUSPENSION
4.1Deactivation
(a)You are entitled to close your Account at any time using the Account settings.
(b)You understand that content from a deactivated Account may not necessarily be deleted and may continue to exist in back up form.
4.2 Suspension and termination of accounts
If you breach these Terms, TCA reserves the right to:
(a)refuse to provide our Services to you at any time at our absolute discretion without prior consultation or Notice;
(b)suspend your Account;
(c)delete your Account;
(d)apply any funds we hold for you in accordance with these Terms; and/or
(e)cancel any order that has been placed but not yet shipped to you.
5. Links to and from other websites
5.1 Website material and Product information
(a)Some of the material and information about Products accessible through the Website is:
(1)provided to TCA by Partners; or
(2)accessible or available via a link to a Partners’s website.
(b)Information on the Website is subject to amendment at any time without notice.
(c)You must make your own evaluation of the accuracy or completeness of any information, opinion, advice or other content available through the Website.
(d)You should carefully read all the terms and conditions specific to any Product you Order through the Website or directly through a Partner.
(e)The Website does not provide a comprehensive selection of Products available in the market.
(f)TCA may modify prices and Products at any time and without notice.
(g)TCA makes no warranties, takes no responsibility, and is not liable, for the price, suitability, condition or terms attaching to any Direct Purchase.
5.2 Links to other websites
The Website may contain links to other websites. Those links may not remain current and TCA is not responsible for the content or privacy practices associated with linked websites.
5.3 Viruses
(a)You must take your own precautions to ensure that you are not exposed to risk of viruses, malicious computer code or other forms of interference which may damage your computer system (Viruses).
(b)TCA is not responsible for any damage caused by or in connection with Viruses.
5.4Exclusion of liability
TCA:
(a)is not responsible for any issue or claim arising from a Product supplied to you by a Partner;
(b)does not warrant any Product supplied to you by a Partner; and
(c)disclaims any liability for the accuracy or completeness of the information provided by a Partner or third party in relation to Products,
even where the invoice for the Product is issued by TCA
6.Purchasing through TCA
6.1 Orders
You may purchase Products by accessing partners through the Website. The Products will be supplied by the Partner and the Product listing will state the Partner of each Product. Despite this, the invoices for some Orders may be issued to you by TCA for your convenience.
6.2 Pricing
The price of any Product shown on the Website may be subject to:
(a)change;
(b)additional terms and conditions;
(c)additional delivery costs; or
(d)limited availability.
6.3 Ordering platform
You acknowledge that:
(a)TCA offers an ordering platform only and
(b)the price of a Product may include a rebate, fee or charge payable to TCA by the Partner.
6.4 Payment
If you Order through the Website, you:
(a)authorise TCA, from the time of your Order, to debit your Payment Facility with the fees and charges payable set out in the payment summary;
(b)consent to TCA supplying your billing, payment and identification information (including Personal Information) to those Partners who will supply the Product and accept that the recipient of this disclosure may not have in place a privacy policy similar to TCA’s; and
(c)accept that once placed, you cannot cancel, change or vary your Order without TCA’s consent.
6.5 Transaction verification
You authorise TCA to:
(a)disclose your Payment Facility details to, and obtain information from, any financial institution or Payment Facility issuer to verify the Payment Facility and identification details that you provide;
(b)take steps to confirm that your Payment Facility is sufficient to meet likely fees and charges;
(c)consent to TCA supplying your billing, payment and identification information (including Personal Information) to Partners who will supply the Product in your Order, and as necessary to arrange delivery of your Order;
(d)TCA reserves the right at its absolute discretion to decline or accept Orders. Any automatic Order confirmation is conditional on TCA’s view of any financial risks, potential despatch delays, or other reasons that may apply; and
(e)if payment is not received for your Order for any reason, you agree to pay TCA all amounts due on demand.
6.6 Order error
TCA is not liable for any delay or error in your Order caused by internet re-buffering, loss of connection or dropout.
6.7 Refunds
(a)TCA does not repair or offer refunds. Any right to a refund or repair is subject to the Partner’s terms and conditions. TCA will use reasonable endeavours to assist a Member to make a genuine claim.
(b)Any representation, warranty, condition or undertaking that would be implied in this Agreement by legislation, common law, equity, trade, custom or usage is excluded to the maximum extent permitted by Law.
(c)Nothing in this Agreement excludes, restricts or modifies any condition, warranty, right or remedy conferred on you by any applicable Law that may from time to time be in force that cannot be excluded, restricted or modified by agreement.
6.8 Delivery
(a)All deliveries will be arranged by and be the sole responsibility of the Partner.
(b)Any delivery fees will be specified in your Order.
7. Purchasing from Partners
7.1 Direct Purchase
(a)You may make a Direct Purchase from a Partner by following the link from the Website to the Partner’s website.
(b)You acknowledge that other than providing a link to the Partner’s website, TCA has no role in, and takes no responsibility for, Direct Purchases from a Partner.
7.2 Partners Terms
(a)If you make a Direct Purchase, you must also comply with all terms and conditions imposed by a Partner on the purchase of that Product.
(b)You should carefully read any additional terms and conditions specific to the Direct Purchase before completing your purchase.
7.3 Pricing
The price of a Product and/or the Products shown on the Website that are available for Direct Purchase is based on information provided to TCA by the relevant Partner and may be subject to:
(a)change;
(b)additional terms and conditions;
(c)additional delivery costs; or
(d)limited availability.
7.4 Payment
Payment for a Direct Purchase must be made in accordance with the Partner’s terms and conditions.
7.5 Delivery
Delivery of the Product is the responsibility of the Partner and TCA accepts no liability for undelivered, damaged or faulty products.
7.6 Refunds
Your entitlement to a refund for a Direct Purchase is governed by the Partner’s terms and conditions as well as your rights under the Australian Consumer Law.
TCA takes no responsibility, and you release TCA, from any obligation to you for a refund for a Direct Purchase.
8. Australian Consumer Law
Nothing in these terms limits your rights under the Australian Consumer Law.
9. Limitation of our liability
TCA is not liable for, and you release TCA from, any liability to you whether arising in breach of contract, negligence or any other cause for:
(a)errors or omissions in the Website or linked sites;
(b)to the extent permitted by law, any misleading, inaccurate, false, harmful or offensive content posted by a third party or provided to TCA by a Partner;
(c)delays to, interruptions of, or cessation of the Services provided by TCA;
(d)unauthorised or illegal conduct or use of the Website by a third party or other Member;
(e)to the extent permitted by law, any consequential loss and (to the extent not already covered by that phrase) loss of data, interruption of business, loss of profits and loss of opportunities in connection with your use (or inability to use) the Website; and
(f)any breach of your obligations under these Terms.
10. Services
10.1 Nature of Services
The Website may offer:
(a)an ordering platform;
(b)Product search functions;
(c)access to third Party or Partners websites; and
(d)access to customer service.
10.2 Availability
(a)The Services are provided to you on an "as is", "as available" basis, without any express or implied warranty by TCA.
(b)The Services may be unavailable from time to time (including for maintenance purposes).
(c)The availability of content on the Website is subject to the limitations of the Internet including re-buffering, loss of connection and dropouts.
10.3 No endorsement
TCA does not endorse or recommend any particular Product.
10.4 Third party and Supplier content
While care has been taken when compiling the Website, it may use information from a range of sources, including third party advertisements and Product information provided by a Partner. TCA can’t screen all of this material before it appears on the Website and TCA is not responsible for, and does not endorse or warrant, its content.
11. Intellectual property
(a)TCA reserves all its intellectual property rights, including and without limitation patent, copyright, trade marks (whether registered or unregistered) in the Website and the material on it, and the design, layout, look, appearance and functionality of the Website.
(b)Nothing in these Terms creates a transfer of any intellectual property rights to you.
12. Privacy
12.1 What TCA collects
TCA may gather and process Personal Information:
(a)that you provide to TCA when creating an Account or making an Order; and
(b)regarding the way in which you use the Website including, without limitation, information acquired through the use of “cookies” programmed during the accessing of the Website.
12.2 Disclosure
TCA will not disclose your Personal Information other than:
(a)in accordance with our Privacy Policy;
(b)to a Partner or intermediary for the purpose of completing your Order;
(c)as required by law, by order of a Court of competent jurisdiction, or by order of an applicable governmental authority.
13. GOODS AND SERVICES TAX
(a)All Product prices are exclusive of GST unless stated otherwise.
(b)GST may be included in the price payable when making an Order.
14. NO AGENCY, PARTNERSHIP OR EMPLOYMENT
TCA and the Partners:
(a)are not each other’s agents;
(b)are not authorised to sign on behalf of each other; and
(c)have no authority to legally bind each other or commit each other to any payment without the other’s specific written consent.
15.DISPUTE RESOLUTION
15.1 Agreement
(a)You agree to resolve any dispute you have with TCA in accordance with this clause.
(b)You will not start Court or arbitration proceedings except:
(1)as allowed under this clause; or
(2)to seek urgent interlocutory relief.
15.2 Procedure
The procedure for resolving a dispute is:
(a)First, a party may give notice to the other party about the nature of the dispute (Dispute Notice) and the parties will seek to negotiate a settlement within 15 Business Days of receipt of the Dispute Notice (Negotiation Period);
(b)Second, to the extent that the negotiations fail to settle the matter within the Negotiation Period, the parties will seek, within a further 10 Business Days, or such longer period as agreed by the parties, to reach agreement on:
(1)a non-litigation, non-arbitration procedure for resolving the dispute (such as mediation, conciliation or independent expert determination);
(2)the steps to be taken and when; and
(3)the identity of any independent person who will assist the parties and the terms on which that person is to be retained (including the basis on which the independent party’s costs are to be paid and by whom); and
(c)Third, if the parties are unable to reach agreement under clause 15.2(b) within the required timeframe or they do reach agreement and the agreed procedure does not culminate in a settlement of the entire dispute within 25 Business Days of the date of the Dispute Notice, either party may then commence court or arbitration proceedings to resolve remaining issues.
15.3 Costs
(a)Subject to clause 15.3(b), you will bear your own legal and other costs incurred in relation to a dispute.
(b)For the purposes of clause 15.2(b)(3), you agree that you will share the costs of any independent person equally with TCA.
15.4 Good Faith
The parties will engage in the procedure in clause 15.2(a) and 15.2(b) in good faith and on a “without prejudice” basis.
16. NOTICES
(a)A Notice has no legal effect unless it is in writing and signed by the party giving notice or its solicitor.
(b)In addition to any other method of service provided by law, the Notice may be:
(1)personally delivered or sent by prepaid post to a party’s nominated address;
(2)sent by fax to a party’s nominated fax number; or
(3)sent by email to a party’s nominated email address.
(c)A Notice must be treated as given and received:
(1)if sent by post, on the second Business Day (at the address to which it is posted) after posting;
(2)if sent by facsimile before 5 p.m. on a Business Day at the place of receipt, on the day it is sent and otherwise on the next Business Day at the place of receipt (however a facsimile is not treated as given or received unless at the end of the transmission the sender’s facsimile machine issues a report confirming the transmission of the relevant number of pages in the Notice);
(3)if sent by email before 5pm on a Business Day, at the time of sending and otherwise on the next Business Day;
(4)if personally delivered before 5 p.m. on a Business Day at the place of delivery, upon delivery, and otherwise on the next Business Day at the place of delivery.
17. SEVERABILITY
If anything in these Terms is unenforceable, illegal or void then it is severed and the rest of these Terms remain in force.
18. WAIVER
A party's failure or delay to exercise a power or right does not operate as a waiver of that power or right. The exercise of a power or right does not preclude either its exercise in the future or the exercise of any other power or right.
19. GOVERNING LAW AND JURISDICTION
The laws of New South Wales and the Commonwealth of Australia apply to this Agreement and the parties submit to the non-exclusive jurisdiction of the courts of New South Wales and the Commonwealth of Australia.
20. DEFINITIONS AND INTERPRETATION
20.1 Definitions
The following definitions apply unless the context otherwise requires:
Account means an electronic profile, specific to a Member, created on the Website accessible with the Log In Details;
Annual Membership Fee means the annual fee payable by a Member to TCA as determined each year by TCA in its sole discretion;
Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth);
Business Day means a day that is not a Saturday, Sunday or public holiday or a bank holiday in the place where an act is to be performed or a payment is to be made;
Direct Purchase means the purchase of a Product directly with a Partner, initiated through a link from the Website to the Partner’s website;
Dispute Notice means a notice specifying a dispute under these Terms and requiring its resolution under clause 15;
GST means the Goods and Services Tax as provided for by the GST Law;
GST Law means A New Tax System (Goods and Services Tax) Act 1999 (Cth) as amended or replaced from time to time and also includes any associated legislation and delegated legislation;
GST Rate means the rate of GST relevant for the purposes of the GST Law;
Intellectual Property means all intellectual property rights (including, without limitation, all copyright, designs, trade marks and patents) of any nature in any discoveries, novel designs, literary works or similar created, discovered, developed or generated TCA or other person whether alone or with others in the course of providing the Services;
Liability means a liability, a loss, an expense, damages, a monetary obligation and a charge (whether actual, contingent or prospective);
Log In Details means the username and password specific to a Member’s Account;
Member means a person, entity, company, association or partnership who is a member of TCA;
Order means the purchase of a Product through the Website or a Direct Purchase;
Partner means a provider of a Product either for Direct Purchase or provided to TCA for purchase on the Website;
Payment Facility means a credit or debit card issued by a banking institution, or a direct debit facility or any other means of payment approved by TCA;
Personal Information means all information, content and data provided to TCA directly or indirectly through your use of the Website that identifies you or is capable of identifying you;
Privacy Policy means the privacy policy available on this Website;
Product means any product, item, service or subscription available for purchase on or through the Website;
Notice means a notice, demand, request, consent, approval, offer or any other communication made, required or authorised to be given under this Agreement;
Services means the services described in clause 10;
Supplier means a provider of a Product either for Direct Purchase or provided to TCA for purchase on the Website; and
TCA means The Collective Advantage Pty Ltd ACN 605 387 415;
Terms means these terms and conditions (as amended from time to time);
The Collective Advantage Client Information Sheet means the form nominated by TCA that must be completed by you before you can become a Member; and
Website means www.thecollectiveadvantage.com.au.
20.2 Interpretation
In these Terms, unless the context otherwise requires:
(a)Reference to:
(1)the singular includes the plural and the plural includes the singular;
(2)a person includes a body corporate;
(3)a party includes the party’s executors, administrators, successors and permitted assigns;
(4)a statute, regulation or provision of a statute or regulation includes that statutory provision as amended or re-enacted from time to time and any statute, regulation or provision enacted in replacement of that statutory provision; and
(5)money refers to Australian dollars, unless otherwise stated.
(b)Where a word or expression is given a particular meaning, other parts of speech and grammatical forms of that word or expression have a corresponding meaning.
(c)A provision of these Terms must not be construed to the disadvantage of a party merely because that party was responsible for the preparation of the agreement or the inclusion of the provision in this Agreement.
A party which is a trustee is bound both personally and in its capacity as a trustee.