“Facility” means the service of introducing the Supplier to the User for the purpose of the Supplier rendering Services for and on behalf of the User to meet the requirements of the User.
“Fee” means the Fee payable by the Supplier to the Company as set out in the Schedule.
“Lead” means receiving notification of the particulars of a Quote Request.
“Quote Request” means a request made by a User in any manner seeking the Services of a supplier.
“Registration” means the acceptance by the Company of the Supplier as a registered Supplier.
“Schedule” means the Schedule to this Agreement.
“Services” means the provision of goods and/or services by the Supplier to a User as a consequence of a Services Request.
“Services Request” means a request made by the User to the Company, using the Facility.
“Site” means the Company’s website operated by the Company.
“Subscriber” means the person who engages the Company to provide the Facility or who is registered with the Company as the Supplier.
“Supplier” means the person who provides the Services for and on behalf of the User and when used in the context of this Agreement means the Supplier who engages the Company to provide the Facility.
“User” means the person by whom the Services Request is made and to whom the Services may be rendered by the Supplier.
In this Agreement unless the contrary intention appears :-
(a)reference to a person includes a reference to that person’s personal representatives, successors and assigns;
(b)reference to a person includes a natural person, partnership, trust, association and company;
(c)a word importing the singular number includes the plural number and a word importing the plural number includes the singular number;
(d)a word importing a gender includes each other gender;
(e)reference to a company includes an incorporated body of any description;
(f) reference to a recital, clause or schedule is a reference to a recital clause or schedule in this Agreement and a reference to this Agreement includes recitals and schedules;
(g)reference to any statute in this Agreement includes a reference to that statute as amended, modified or replaced and includes order, ordinances, regulations, rules and by-laws made under or pursuant to that statute;
(h)reference to the provisions of a document or part of a document includes a reference to all the terms, covenants, conditions, stipulations and reservations contained or implied in that document or in that part of a document;.
- IMPORTANT ACKNOWLEDGEMENTS BY SUPPLIER
The Supplier acknowledges and agrees that :-
3.1 The Company may accept or reject the Supplier’s application for Registration for rendition by the Company to the Supplier of the Facility.
3.2 The Company is simply obliged to provide the Facility for the Supplier on the terms and subject to the conditions of this Agreement and is not and will not be party to any agreement between the Supplier and the User.
3.3 The Company is not an agent, servant or contractor of the User or the Supplier.
3.4 The Supplier is an independent contractor and may or may not, in the Supplier’s discretion, undertake to provide the Services to a User.
3.5 The Company is not a partner of or a joint venturer with the Supplier and the Supplier conducts business for his own account independently of the Company.
3.6 The Company does not offer and is not required to offer any advice to the User or the Supplier as to the suitability or fitness of the Services.
3.7 The Company has not offered nor has it been requested to offer any recommendation concerning the Supplier to the User.
3.8 The Supplier is responsible for making his own inquiries with respect to the User or the ability of the User to pay the Supplier’s charges for the Services.
3.9 If the Supplier agrees to render the Services to a User, the Supplier must make his own arrangements with the User for payment of the Supplier’s fees and charges for rendering the Services to the User.
3.10 The Company does not make any representation nor does the Company give any warranty concerning the credit worthiness or otherwise of the User.
3.11 The Company does not give any assurance to the Supplier as to the correctness of the information provided by the User.
3.12 The Company does not provide to the Supplier any additional services of whatsoever description other than the Facility.
3.13 The Company will not be liable to the Supplier if any delay occurs in notifying the Supplier of any information provided by a User or anyone else.
3.14 The Company gives no assurance and makes no representation that the Supplier will be engaged by a User to render Services to and on behalf of a User.
Subject to the Company accepting registration of the Supplier as a Subscriber and subject to the Supplier paying the Fees, the Company shall provide the Facility to the Supplier for an Initial term (12 Months) and each extension thereto shall automatically renew for a further period of 12 months(Further Term) unless and until either party gives to the other party written notice sixty (60) days prior to the expiration of the said term of that party’s desire not to renew this subscription.
- PAYMENT OF FEES FOR AND IN CONSIDERATION OF THE PROVISION OF THE FACILITY BY THE COMPANY FOR THE SUPPLIER
The Supplier will pay the Fees to the Company in the amounts and in the manner specified in the Schedule in consideration for the Company providing the Facility.
- THE FACILITY
6.1 On notification of a Lead by the Company the Supplier may in the absolute discretion of the Supplier respond to the Lead.
6.2 If the Supplier desires to accept the Lead, the Supplier must follow the procedure set out on the Site.
6.3 The Supplier must contact the User concerning the Quote Request within One (1) business day of receiving the Quote Request.
6.4 Once the Supplier communicates with the User concerning the Quote Request, the Company shall have no further involvement between the Supplier and the User and the terms and conditions of any agreement between the Supplier and the User shall be determined and agreed between the Supplier and the User with no reference by either party to the Company which will have no involvement whatsoever with respect to the agreement for rendition of the Services or any matter or thing connected therewith.
- WITHHOLDING OF THE FACILITY BY THE COMPANY
7.1 If any Fees have not been paid by the Supplier to the Company on due date for payment thereof, the Company shall be entitled to withhold or suspend the Facility and/or terminate this Agreement.
7.2 The Supplier may register as a subscriber by :-
(a) agreeing to these terms and conditions;
(b) paying the Fees;
(c) providing the Company with all relevant information required by the Company for registration purposes including the full business name, physical address, postal address, email address & the tyre brands & models sold by the subscriber;
without prejudice to the Company’s right to decline acceptance of the Supplier’s application for registration under the provisions of clause 3.1.
- REVIEW OF FEES
Notwithstanding any provision contained in this Agreement, the Company shall be entitled to review the Fees by increasing the same PROVIDED THAT :-
(a) the Company shall give the Supplier thirty (30) days written notice of such increase;
(b) the Supplier may decline to accept the increase in Fees by written notice to the Company within thirty (30) days of receipt of the Company’s notice of increase; and
(c) if the Supplier declines to accept the Company’s increase in Fees, the Company may immediately suspend the Facility and terminate this agreement in which case all fees paid by the Supplier to the Company as at the date of termination shall not be refundable by the Company to the Supplier.
- WARRANTIES AND REPRESENTATIONS BY SUPPLIER
The Supplier warrants and represents to the Company on the basis that the Company has relied on such warranties and representations in entering into this Agreement, that :-
9.1 The Supplier has the ability and capacity to enter into this Agreement.
9.2 The Supplier and its servants have the capacity and ability to undertake to perform the Services for the User.
9.3 The Services will be rendered with all due diligence and skill and in a fit and proper manner and that any goods to be supplied by the Supplier to a User will be of good and merchantable quality and fit for the purposes for which they are required by the User.
9.4 That the Supplier will comply with all relevant laws when accessing the Site and providing the Services to a User.
9.5 That the Supplier has all necessary qualifications and registrations.
9.6 That the Supplier will not provide any misleading and deceptive information and that all information to be provided by the Supplier to the Company or the User shall be true and accurate.
9.7 That the Supplier will not make, utter or publish to the Company the User whether on the Site or otherwise any statement or information which is false, abusive, offensive, threatening or defamatory or which is contrary to law.
9.8 That if the Supplier undertakes to provide Services to a User, the Supplier will perform the Services in accordance with the terms of the Supplier’s agreement with the User and within a reasonably acceptable time frame.
- SUPPLIER’S COVENANTS CONCERNING THE SITE
The Supplier covenants and agrees with the Company that the Supplier shall not :-
(a) Upload, post, email transmit or otherwise publish any information which is illegal, detrimental, offensive, defamatory and or causes embarrassment to any person or persons.
(b) Make any misrepresentations.
(c) Collect credit card information.
(d) Upload, post, email transmit or otherwise make available any information that infringes intellectual property rights or causes detriment to any person.
(e) Tamper with the Site or any of the Company’s software or infringe any of the intellectual property of the Company.
(f) Not obtain or disseminate information about Users from the Site.
(g) Not use the Site for any illegal or unauthorized purpose under the provisions of this Agreement.
10.1 Provided on Site by the Supplier if the Company in its sole and absolute discretion considers the information inappropriate and/or contrary to the terms of this Agreement and the Supplier shall have no recourse against the Company arising therefrom.
- INTELLECTUAL PROPERTY RIGHTS
The Supplier undertakes not to infringe any Intellectual property rights of the Company.
- SPECIFIC INDEMNITY
The Supplier hereby indemnifies and shall hold the Company and its directors indemnified in respect of any claims, demands, proceedings, losses and damages costs and expenses of every description and howsoever arising made by any User or other Subscriber or any third party against the Company and its directors arising from, incidental to or connected with the Supplier’s use of the Facility and/or the Site, the Suppliers rendition of the Services and any breach of this Agreement.
This Agreement is personal to the Supplier and may not be assigned by the Supplier without the Company’s written consent. Any change in the effective control of the Supplier shall for the purposes of this clause be deemed an assignment.
- MISCELLANEOUS PROVISIONS
14.1This Agreement shall be governed by the laws of Western Australia and the parties submit to the jurisdiction of the Courts of Western Australia.
14.2If any provision of this Agreement is illegal or unenforceable, then such provision shall be severed from this Agreement and the remaining provision shall be capable of being enforced.
14.3The Supplier acknowledges and agrees that the Company has not made any representation or given any warranty concerning the Facility, the User or the Site or any other matter or thing relating to this Agreement unless specifically set out in this Agreement and the Supplier has not relied on any promise, representation, warranty or undertaking given by or on behalf of the Company with respect to any such matters whether expressly or by statutory implication and this Agreement constitutes the whole agreement between the Company and the Supplier and the Supplier acknowledges that there are no further or other covenants or provisions whether in respect of the Facility or the Site which are implied or arise by way of collateral or other agreement.
Notices may be served by one party upon the other under the provisions of the Property Law Act 1969 (WA). The Company shall however be entitled to effect service of a notice upon the Supplier by posting such notice on the Site.
- VARIATION OF AGREEMENT
The Company may vary the terms and conditions of this Agreement by written notice to that effect to the Supplier. If the Supplier objects to such variation, the Supplier must within fourteen (14) days of receipt of the notice of variation from the Company, give notice in writing of such objection in which case either the Supplier or the Company may by written notice to the other terminate this Agreement. If this Agreement is terminated under this clause, the Supplier shall not be entitled to reimbursement of any part of the Fees.
- TERMINATION GENERALLY
17.1The Company may terminate this Agreement by written notice to that effect in the event that the Supplier is in default under this Agreement and has failed to remedy such default within seven (7) days of written notice to that effect served by the Company upon the Supplier.
17.2Either party may terminate this Agreement by thirty (30) days written notice to that effect served upon the other, for any reason.