TRA Collective Grading Terms and Conditions
TRA Collective Grading Terms and Conditions
- Definitions and Interpretation
In these Conditions, singular words include the plural and vice versa. A mention of anything after “include”, “includes” or “including”, does not limit what else might be included or described.
ACL means Schedule 2 of the Competition and Consumer Act 2010 (Cth).
Agreement means the agreement between the Supplier and the Customer for the supply of Services as set out in the Conditions.
Approved Payment Platform means the payment options available for Fees when submitting a Purchase Order, including by credit card, PayPal, AfterPay or electronic funds transfer.
Business Day means a day other than a Saturday, Sunday or official holiday in Victoria.
Claim means, in relation to any person, a claim, action, proceeding, judgment, damage, Loss, cost, expense or liability of whatsoever kind and howsoever arising, incurred by or to or made or recovered by or against the person, and whether based in common law or statute or on judicial precedent, and whether direct, indirect, present, ascertained, unascertained, immediate, future, possible, potential, or contingent.
Cards means the trading cards and/or collectible card game cards (excluding sports trading cards) submitted or to be submitted by the Customer after a Grading Slot has been purchased and approved.
Conditions means these terms and conditions and where applicable includes the terms of any Website Terms, Invoice or Purchase Order, and includes the whole of this document as amended, supplemented or varied by the Supplier from time to time, provided that the terms of this document shall prevail in the event of any inconsistency between such terms.
Consequential Loss means loss of expected savings, loss of use, loss of opportunity, loss of profit, loss of revenue, increased financing costs, loss arising from delay, or any consequential, special or indirect loss or damage, whether or not the possibility or potential extent of the loss or damage was known or foreseeable, and whether arising from a Claim under indemnity, contract, tort (including negligence), statute or otherwise.
Confidential Information means all or any information, data, documents, invoices and other things whatever whether reduced to writing or not relating to or in any way connected with or concerning the Supplier or any Agreement, other than information in the public domain.
Customer means the party who has ordered Services from the Supplier or to whom the Supplier has supplied Services, and includes any of that party’s authorised persons, successors and assigns.
Determined Value means the value of Cards as determined by the Supplier by reference to recent listings and sales of cards of the same or similar value using data obtained from various online marketplaces, or by independent valuation, at the Supplier’s sole discretion.
Fees means the fees payable by the Customer to the Supplier for Services pursuant to any Purchase Order or Invoice.
FTA means the Fair Trading Act 2010 (WA) or the equivalent legislation in any other state where the Services are performed.
Grading means the official trading card grading services, including authenticity verification, condition ranking, grading, sealing and cataloguing, as ordered by the Customer selecting and paying for a Grading Slot.
Grading Slots means the various options for Grading services available to be purchased by the Customer as advertised on the Website from time to time.
Insurance means the Supplier’s stock throughput insurance policy for Cards within Australia, overseas and in-store, as amended, varied or renewed from time to time.
Intellectual Property includes but is not limited to all trademarks, patents, copyright, designs, marks, processes, know-how, methodology, concepts, models, specifications, statements, formulae, trade secrets, manner of new manufacture, drawings, artwork and data or other like property or rights owned or held by the Supplier. These rights include but are not limited to:
- Marks, logos, images, service marks, trade names, business names, internet domain names, slogans, symbols, brand names, copyright or other trade indicia; and
- All rights in information, know-how, processes, procedures, compositions, devices, methods, formulae, protocols, techniques, software, designs, drawings, programs, source code, dynamic link libraries, graphical user interfaces, trade secrets or data whether or not protectable by patent application design registration, copyright, circuit layouts or otherwise, whether unregistered, registered or registrable.
Invoice means a tax invoice for Services provided to the Customer by the Supplier, if applicable.
Loss means any expense, cost or damage of any kind and howsoever arising, and includes Consequential Loss, pure economic loss, and a fine or penalty imposed by a statutory or other authority.
Party or Parties means a party or parties to an Agreement.
Purchase Order means a formal order placed by the Customer for Services, whether made through the Website or any other manner approved by the Supplier.
Related Bodies Corporate has the same meaning as given to that term in the Corporations Act 2001 (Cth).
Services mean any services provided by the Supplier to the Customer.
Supplier means in connection with the supply of any Services, Ken Chin ABN 88 318 995 969 trading as ‘TRA Collective’, or any Related Body Corporate making the supply to the Customer.
Supplier’s Address means a TRA Collective distribution Centre
TRA Services Guide means the Supplier’s guide describing the general nature of, and processes involved in, the provision of certain Services as published on the Website. The TRA Services Guide can be accessed at TRA Collective Grading Service Guide
Website means the website operated by the Supplier through which Customers can purchase Grading Slots and access the Services with URL: https://tracollective.com.au
- Acceptance of Conditions
By accessing the Website and making a Purchase Order or other request for Services, the Customer acknowledges and accepts the terms of, and agrees to abide and be legally bound by, the Conditions.
Any request for Services is subject to acceptance by the Supplier. On receipt of a Purchase Order, any of the following will be deemed to communicate acceptance by the Supplier constituting an Agreement:
- The Supplier communicating acceptance of the Purchase Order in writing to the Customer; or
- The Supplier providing Services to the Customer pursuant to the Purchase Order.
These Conditions and any Agreement governed hereby and pursuant hereto constitute the entire agreement between the Parties in respect to the Services being provided and apply to the exclusion of any other terms that the Customer may seek to impose or incorporate or which are implied by trade, custom, practice or course of dealing.
- Ordering Procedure and Provision of Services
- In submitting a Purchase Order, the Customer must provide all information necessary for the Supplier to provide the Services, including:
- Clear and accurate Customer details including full name and contact details;
- A valid return address within Australia for any Cards to be delivered to the Customer.
- All Purchase Orders made by the Customer are subject to acceptance by the Supplier. In the absence of express notification of acceptance of a Purchase Order by the Supplier to the Customer, the Supplier providing Services pursuant to a Purchase Order will constitute the Supplier’s acceptance of the Purchase Order. The Customer shall be notified within 14 days of the Supplier receiving a Purchase Order if any Purchase Order is not accepted.
- If the Supplier chooses, at its sole discretion, to provide the Services as described in any Purchase Order, it may do so without further notice to the Customer.
- If a Customer submits a Purchase Order for a Grading Slot and it is accepted by the Supplier, the Customer must arrange for their Cards to be delivered to the Supplier’s Address for processing as outlined in the TRA Services Guide. The TRA Services Guide can be accessed at [insert hyperlink to TRA Grading Services Guide].
- Grading Slots purchased through sales such as promotions where prices are discounted must have the cards posted with tracking sent to TRA Collective no later than (1) week after purchase, TRA Collective holds the rights to refund orders which passes the (1) week period
- Any variation, inaccuracy or inconsistency in a Customer’s instructions or request for Services, may result in additional fees being incurred and charged to the Customer. The Supplier shall not be liable for any Loss arising out of any inaccurate or misleading information provided by the Customer including any defect, mistake or omission in any instructions, including as applicable any specifications, descriptions of any Cards or any Customer personal details.
- If the Supplier is prevented from providing any Services owing to any inaccurate, erroneous or incorrect information provided by the Customer, then it shall be entitled to charge an additional amount for costs incurred, whether directly or indirectly, as a result of the Supplier relying on such information and for any subsequent provision of Services.
- The Customer must pay any Fees in advance when a Purchase Order is submitted, or in relation to any Invoice, on its due date for payment. Where no due date is stipulated by the Supplier, the Customer must make payment within 30 days of the date of the Invoice.
- Payment of all Fees must be made through an Approved Payment Platform or by electronic funds transfer to the Supplier’s bank account as set out in the Invoice (if applicable) or to such other account nominated by the Supplier in writing.
- Unless stated otherwise in writing, all Fees are inclusive of GST.
- Reasonable additional charges for Services may apply if the circumstances of any Agreement are materially altered to the detriment of the Supplier, due to the action or inaction of the Customer. This includes where the Customer causes unnecessary delays, varies or misrepresents the Services required, provides false, inaccurate or misleading information to the Supplier, defaults on any payment owed to the Supplier, or otherwise causes the Supplier to incur loss.
- The Customer agrees that it must pay, without any deduction or set-off of any kind, any Fees charged by the Supplier for Services supplied or to be supplied to the Customer in advance on submitting a Purchase Order, or if any other Fees become due and payable, within 30 days of the date of the Invoice.
- Overdue Accounts, Interest and Security
- Any amount owing by the Customer to the Supplier and not paid by the due date for any reason, shall incur interest at a rate of 5% per annum, or part thereof, on the unpaid amount. Such interest shall be calculated on the daily balance of the outstanding amount on the basis of a 365 day year and is payable immediately.
- The Customer agrees to pay all costs and expenses (including legal costs on a full indemnity basis) incurred by the Supplier in connection with the recovery of overdue amounts.
- A statement in writing signed by an authorised officer of the Supplier setting out the moneys due or owing to the Supplier at the date of that statement, shall be sufficient evidence of the amount so due or owing unless the contrary is proven.
The Supplier shall use their best endeavours to ensure that all Cards received by the Supplier are covered by the Supplier’s Insurance:
- At all times that the Cards are held at the Supplier’s Address; and
- During any period of time that the Cards are in transit to or from the Supplier’s Address and the address of the Supplier’s business partner Ludkins Collectables USA, located at Unit 281, 525-K East Market Street, Leesburg, Virginia 20176 USA.
Although the Supplier takes all reasonable care to ensure that Cards are handled appropriately and do not suffer any damage, loss or other misadventure, except as expressly provided under this Clause 6, the Customer is solely responsible for arranging adequate insurance coverage for all Cards delivered (or to be delivered) to the Supplier.
In the event that any Cards that are covered by the Supplier’s Insurance are lost, stolen, damaged or destroyed, the Supplier shall use its reasonable endeavours to ensure that the Customer is compensated for any loss suffered by the Customer up to the Determined Value of the Cards by submitting an insurance claim to its insurer as soon as reasonably practicable after the Supplier is made aware of such loss. Notwithstanding this, the outcome of any insurance claim submitted is outside of the Supplier’s control, and the Supplier gives no warranty as to the success of such claim and shall not be liable to the Customer for any Loss suffered owing to a claim being wholly or partially unsuccessful.
- Limitation of liability
To the maximum extent permitted by law the Supplier’s total liability arising out of or in connection with its performance of its obligations pursuant to these Conditions or arising out of or in connection with the supply of specific Services (including pursuant to or for breach of these Conditions or repudiation thereof, under statute, in equity or for tort, including negligent acts or omissions) is limited as follows:
- The Supplier shall have no liability to the Customer for any Consequential Loss;
- The Supplier’s total aggregate liability for Loss, however arising, shall not exceed the GST exclusive aggregate price paid by the Customer to the Supplier for the specific Services that gave rise to the Loss in question.
- Limitation of liability under Australian Consumer Law Guarantees
To the extent that Services supplied by the Supplier are services other than services of a kind ordinarily acquired for personal, domestic or household use or consumption, the Supplier’s liability for failure to comply with a consumer guarantee that the Customer may have the benefit of is limited, at the option of the Supplier to:
- The supply of the Services again; or
- The payment of the cost of having the Services supplied again.
Nothing in these Conditions is intended to have the effect of contracting out of any applicable provisions of the ACL or the FTA, except to the extent permitted by those Acts where applicable.
- Privacy disclosure and consent
In carrying out its business the Supplier collects personal information about its customers. This personal information may include a customer’s name, street and postal address, telephone and fax numbers, email addresses and bank account details. The Supplier respects the privacy of its customers and is committed to protecting their personal information. The Supplier collects personal information in order to provide and market its services to its customers. The Customer has the right to access personal information collected about it and may request the Supplier to access or change any personal information which the Supplier holds.
- Force Majeure
The Supplier is not obliged to perform any obligation pursuant to these Conditions to the extent and for the period that, by reason of any fact, circumstance, matter or thing beyond the Supplier’s reasonable control, the Supplier is unable to perform, in whole or in part, that obligation. The Supplier is not liable to the Customer for any Loss or damage which is or may be suffered by the Customer whether as a direct or indirect result of any event or circumstance that is or was beyond the Supplier’s control.
- Confidential Information
No Party may (save as this clause provides) without the consent of the other Parties at any time divulge, communicate or suffer or permit any of its officers, employees, agents, contractors, consultants or auditors to divulge or communicate to any person all or any Confidential Information except for the disclosure of any information:
- That at the time of disclosure is in the public domain;
- That is required by law to be communicated to a person who is authorised by law to receive it;
- To a court arbitrator, expert board of enquiry or administrative tribunal in the course of proceedings before them or it;
- To any person who is required or authorised by the Agreement to perform any function under the Agreement;
- That is necessary to be disclosed to any bank or other financial institution in connection with the organisation of that Party’s financial affairs;
- That is necessary to be disclosed to any legal counsel, accountant or other professional adviser in connection with the Party’s affairs provided that the disclose is bound by an obligation or confidentiality in regards to the information disclosed; or
- That is necessary to be disclosed to the Party’s officers, employees, agents, contractors, consultants, auditors and other persons for the purpose of all or any of the matters pertaining to the Agreement or any business to be conducted hereunder.
- Intellectual Property
All intellectual property rights subsisting in Services and any document, matter or thing prepared or written or developed by the Supplier for the supply of the Services are, as between the Customer and the Supplier, the sole and exclusive property of the Supplier. The Customer indemnifies and will keep indemnified the Supplier against all Loss (including legal costs on a solicitor client basis) or Claims made by any third party in relation to any Intellectual Property supplied by the Customer to the Supplier.
- Dispute Resolution
- If any dispute arises out of or in connection with the Agreement (“Dispute”), a Party cannot commence any court proceedings relating to a Dispute unless this clause has first been complied with, except where that Party seeks urgent interlocutory relief.
- A Party claiming that a Dispute has arisen must give notice in writing to the other party specifying the nature of the Dispute.
- On receipt of that notice by the other Party, all of the Parties must use all reasonable efforts to expeditiously resolve the Dispute.
- If the Parties have not resolved the Dispute within 30 days of receipt of the notice referred to in clause, or further period as is agreed in writing by them, the Dispute must (at the instigation of any Party) go to arbitration in accordance with Clauses 13(e) and (f).
- The arbitrator appointed to resolve the Dispute will be:
- Either as agreed in writing by the Parties; or
- Failing agreement within 7 days of a request by any Party to do so, then as appointed by the President for the time being of the Law Institute of Victoria or their nominee.
- The costs of the arbitrator will be borne equally by the parties to the Dispute and each Party must bear its own legal costs.
- Any legal action between the Parties must be commenced in the jurisdiction of Victoria.
- Governing law
These Conditions are governed by and are to be interpreted according to the laws in force in Victoria, and the Parties hereby irrevocably submit to the exclusive jurisdiction of those laws and the Courts enforcing them.
- Joint and several liability
If the Customer comprises 2 or more persons or parties these Conditions bind each of them separately and any 2 or more of them jointly.
The Supplier may alter, amend or vary these Conditions at any time without notice to the Customer.
- Default and Termination
- This Agreement may be terminated at any time by the Supplier giving 14 days’ notice in writing to the Customer. Termination shall be without prejudice to any Claim either party may have against the other party arising from any breach of the Agreement or any act, default or omission (including negligence) prior to the date of termination.
- The Parties hereby agree not to take any action, including legal action, against the other Party for a default of the Agreement without first giving the defaulting Party written notice specifying the default and providing the defaulting Party with 7 days to rectify such.
- Without prejudice to any other remedies available to the Supplier, if at any time the Customer is in breach of any obligation under an Agreement (including those relating to payment), the Supplier may suspend or terminate any or all of its obligations under any Agreement, including the obligation to provide Services to the Customer. The Supplier will not be liable to the Customer for any Loss the Customer suffers because the Supplier has exercised its rights under this clause.
- On the occurrence of any of the following events and without prejudice to the Supplier’s other remedies at law, the Supplier is entitled to immediately cancel all or any part of any Purchase Order of the Customer which remains unfulfilled and all amounts owing to the Supplier shall, whether or not due for payment, become immediately payable:
- Any money payable to the Supplier becomes overdue; or
- the Supplier deems that the Customer is or will be unable to meet its payments as they fall due.
- If the Supplier terminates the Agreement for any reason then the Customer shall pay to the Supplier all amounts outstanding for the supply of Services provided up to the date of termination, whether invoiced or not.
- The Customer acknowledges that the Supplier is entitled to exercise a general lien over any Cards in its possession if a Customer fails to make the agreed payment for Services or otherwise upon completion of any Services.
- Any lien exercised will extend to all unpaid monies owed to the Supplier by the Customer including those arising out of future charges.
- If the Customer fails to make payment within 14 days of the due date for payment of any Fees, the Supplier may sell all or any of the Cards by public auction or private treaty (unless such sale is expressly prohibited by statute), and the proceeds of such sale are to be applied against any outstanding amount, with the excess (if any) to be refunded to the Customer.
The Supplier may cancel the Agreement or cancel the provision of Services at any time before the Services are provided, by giving written notice to the Customer. On giving such notice the Supplier shall refund any Fees paid by the Customer for Services not provided, provided that the Supplier shall be entitled to apply any portion of the Fees towards payment of the Supplier for any Loss incurred due to the dishonest, reckless or misleading conduct of the Customer. The Supplier will not be liable to the Customer or any other entity for any Loss arising from such cancellation.
No order may be cancelled by the Customer except with the written consent of the Supplier. If there is a cancellation of an order by the Customer, the Supplier has the right to claim indemnity against all losses suffered by the Supplier as a result of such cancellation.
The Customer shall indemnify the Supplier and its officers, employees and agents against any liability, loss, damage, costs and expenses arising out of or in connection with a default or unlawful or negligent act or omission on the part of the Customer, its officers, employees or agents.
The indemnity provided by the Customer under this clause will be reduced by and to the extent that the liability, loss, damage cost or expense was caused or contributed to by the unlawful or negligent act or omission of the Supplier, its officers, employees or agents.
These Terms & Conditions have been specifically drafted for, and provided by TRA Collective