Terms and Conditions

CarSmart Workshop Membership Agreement


Important: These terms and conditions are a binding legal agreement between you, the Sign-On Member, the Account Holders and CarSmart Workshop Pty Ltd ACN 160 575 753 of 29 Taras Avenue, Altona North Victoria 3025 (“CarSmart Workshop”).

By ticking the Accept Terms & Conditions of Use box below and by logging in and using the Website, it is agreed by the Sign-On Member and the Account Holders (together jointly and severally referred in these terms and conditions as the “Member”) that:

(a) you have read and understood these terms and conditions;

(b) the use of the Website and its contents is “at your own risk’;

(c) CarSmart Workshop does not accept any liability for loss or damage arising from the actions taken by the Member as a result of the Website, its content and information and Tutorials provided by CarSmart Workshop; and

(d) following your first login to the Website you will be bound by, and will abide by, these terms and conditions.

1. Defined terms and interpretation

1.1 Defined terms

In these terms and conditions, the following words have these meanings:

“Account Holders” mean the account holders nominated by the Sign-On Member.

“Business Day” means a working day in Melbourne, Victoria, excluding a Saturday, a Sunday or a gazetted public holiday applicable in Melbourne.

“Business Hours” means the period between 9:00 am and 5:00 pm on a Business Day.

Claim” means a claim, demand or proceeding arising out of a cause of action, including breach of contract, tort (including negligence) and any other common law, equitable or statutory cause of action.

“Commencement Date” means the date you sign up to be a member for CarSmart Workshop.

“CarSmart Workshop System” means all hardware, software, materials and resources used by (or on behalf of) CarSmart Workshop to provide the Website and all its content.

“Confidential Information” of a Disclosing Party means:

(a) the following information, regardless of its form and whether the Receiving Party becomes aware of it before or after the Commencement Date;

(i) information that is by its nature confidential;

(ii) information that is designated by the Disclosing Party as confidential; and

(iii) information the Receiving Party knows, or ought to know, is confidential;

(b) all notes and other records prepared by the Receiving Party based on or incorporating information referred to in paragraph (a); and

(c) all copies of the information, notes and other records referred to in paragraphs (a) and (b), but excludes information that:

(i) the Receiving Party creates (whether alone or jointly with any third person) independently of the Disclosing Party; or

(ii) Receiving Party or any of its permitted disclosees).

“Damages” means all liabilities, losses, damages, costs and expenses and any personal, personnel and customer personal injury, damage or loss (including all legal costs determined on a solicitor and own client basis) whether incurred or awarded against a party, disbursements, costs of investigation, litigation, settlement and judgment, and interest, fines and penalties, regardless of the Claim under which they arise.

“Disclosing Party” means a party who discloses or makes available Confidential Information to a Receiving Party.

“External Factors” has the meaning given in clause 2.3(b).

“Fees” means the membership fees paid by the Member to CarSmart Workshop for access to the Website and all its content.

“Force Majeure” means:

(a) act of God, lightning, storm, flood, fire, earthquake, explosion cyclone, tidal wave, landslide or adverse weather conditions;

(b) act of public enemy, war (declared or undeclared), act of terrorism, sabotage, blockade, revolution, riot, insurrection, civil commotion or epidemic;

(c) the effect of any applicable laws, orders, rules or regulations of any government or other competent authority;

(d) embargo, power or water shortage or lack of transportation;

(e) any External Factors; or

(f) any other event beyond the reasonable control of a party.

“Governmental Agency” means any governmental, semi-governmental or judicial entity or authority.

“Harmful Code” means any virus, worm, trojan horse, trapdoor, software switch, time bomb, slicing routine, corruptive code, logic bomb, disabling code, disabling routine or expiration dates as these words are generally understood within the technology industry and any equivalent or similar corruptive mechanism.

“Intellectual Property Rights” means all intellectual property rights, including:

(a) patents, copyright, rights in circuit layouts, designs, registered designs, trade and service marks, trade names and any right to have confidential information kept confidential;

(b) any application or right to apply for registration of any of the rights referred to in paragraph (a); and

(c) all rights of a similar nature to any of the rights in paragraphs (a) and (b) which may subsist anywhere in the world (including Australia).

“Laws” means:

(a) the common law and equity;

(b) any statute, regulation, by-law, ordinance or subordinate legislation (including the Privacy Laws); or

(c) any licence, permit, authorisation, accreditation, code of practice, code of conduct, order, direction or other requirement which is enforceable against the Member or CarSmart Workshop (as the case may be) or which is issued under an instrument referred to in paragraph (b),

and includes any amendment, change, update or replacement to any of them that may be implemented or take effect during the term of this agreement.

“Personal Information” means any information or opinion about a natural person (whether true or not), including 'personal information' as that term is defined in the Privacy Act, which either party collects or has access to, stores or discloses, or otherwise handles, in the course of performing, or receiving the benefit of, the Website or the Tutorials.

“Personnel” means officers, employees, agents and contractors, including representatives.

“Pre-Existing IPR” means any Intellectual Property Rights owned and created by CarSmart Workshop prior to the Commencement Date, together with any improvements, modifications and enhancements made to those rights.

“Receiving Party” means a party who obtains Confidential Information of the other party.

“Sign-On Member” means the entity identified as the Sign-On Member at the time of completion of the Website’s online application for membership.

“Term” means the period of time during which the Member is a member of CarSmart Workshop.

“Tutorials” mean the online tutorials hosted on or linked to the Website.

“Website” means the website located at www.carsmartworkshop.com.au (or any successor website as notified to the Member from time to time).

1.2 Interpretation

In these terms and conditions, unless the contrary intention appears:

(a) headings are for ease of reference only and do not affect the meaning of these terms and conditions;

(b) the singular includes the plural and vice versa and words importing a gender include other genders;

(c) other grammatical forms of defined words or expressions have corresponding meanings;

(d) a reference to a clause, paragraph, schedule or attachment is a reference to a clause or paragraph of or schedule or attachment to these terms and conditions and a reference to these terms and conditions includes any schedules and attachments;

(e) a reference to a document or agreement, includes a reference to that document or agreement as novated, altered or replaced from time to time;

(f) a reference to a party includes its executors, administrators, successors and permitted assigns;

(g) the meaning of general words is not limited by specific examples introduced by including, for example or similar expressions;

(h) any agreement, representation, warranty or indemnity by two or more parties (including where two or more persons are included in the same defined term) binds them jointly and severally;

(i) any agreement, representation, warranty or indemnity in favour of two or more parties (including where two or more persons are included in the same defined term) is for the benefit of them jointly and severally;

(j) words and expressions importing natural persons include partnerships, bodies corporate, associations, governments and governmental and local authorities and agencies; and

(k) a reference to any statute or other legislation is to a statute or other legislation as amended or replaced from time to time.

2. Access to and use of Website and all its content

2.1 Provision of the Tutorials

CarSmart Workshop will, from the date that Member pays the Fees, and for the Term, provide the Member with access to the Tutorials via the Website.

2.2 Members obligations

(a) The Member must:

(i) at its cost, provide all necessary computers, software, operating conditions, cabling, telephone lines, modems and internet connections required for it to access the Website and otherwise receive the benefit of the Tutorials;

(ii) ensure that no unauthorised use is made of the Website or the Tutorials;

(iii) comply with all of CarSmart Workshop's operating and security requirements and procedures relating to access to the Website and use of the Tutorials, (including in respect of passwords and other security information) as displayed on the Website or otherwise notified to the Member from time to time;

(iv) other than as expressly permitted under these terms and conditions, not obtain (nor attempt to obtain) any access to, or interfere with:

A. any programs or data or the Website or its content of CarSmart Workshop, a Network Operator or any other client of CarSmart Workshop; or

B. any part of CarSmart Workshop Systems or any Network Operator's systems, hardware, software or networks; and

(v) not introduce any Harmful Code into CarSmart Workshop Systems or the systems, hardware, software or networks of any Network Operator.

(b) If the Member becomes aware of or suspects that a breach of any of the obligations set out in paragraph (a) has occurred, the Member must promptly notify CarSmart Workshop by notice in writing to CarSmart Workshops registered address, in which case CarSmart Workshop may take such action as it considers appropriate (which may including changing the Member's passwords and other security information).

2.3 No guarantee of continuity of access

(a) CarSmart Workshop does not undertake, warrant or guarantee that access to the Website or the Tutorials will be uninterrupted, continuous or error free.

(b) The Member acknowledges and agrees that its use of the Website and all its content is dependent on, and affected by, a number of environmental and other factors outside of the reasonable control of CarSmart Workshop, including the infrastructure and services provided by Network Operators (“External Factors”). Subject only to clause 13.4, CarSmart Workshop will have no liability whatsoever relating to any failure of, or interruption in the performance of, the Website or the Tutorials resulting from any External Factors. In the event of failure of the Tutorials, CarSmart Workshop will use reasonable commercial endeavours to restore the Website or the Tutorials to an operational state with the minimum practicable delay.

(c) The Member acknowledges and agrees that, from time to time:

(i) CarSmart Workshop will conduct routine and other maintenance on the Website and all its content; and

(ii) the Network Operators will conduct routine and other maintenance on their respective systems, hardware, software and networks,

(d) and the Member agrees that, during the conduct of such maintenance, it may not be able to access or use the Website or Tutorials.

(e) The Member acknowledges and agrees that CarSmart Workshop may suspend the Website and the Member's access to the Tutorials if:

(i) CarSmart Workshop’s access to any system, software, hardware or network of any Network Operator is suspended for any reason;

(ii) CarSmart Workshop is required to do so by any Governmental Agency or Network Operator; or

(iii) the Member breaches any provision of these terms and conditions.

3. Member's obligations

3.1 Compliance

The Member must:

(a) comply with all applicable Laws; and

(b) comply with CarSmart Workshop's directions, policies and procedures relating to:

(i) the use of the Website and all its content;

(ii) any applicable Law (including the Privacy Laws) or industry code or practice; or

(iii) any other rules or guidelines posted on the Website or otherwise notified to the Member by CarSmart Workshop from time to time;

(c) not act in any way that may have a detrimental effect on the goodwill or good standing of CarSmart Workshop;

(d) not act in a way that may expose CarSmart Workshop to the risk of any legal or administrative action including prosecution under any Laws;

(e) not send unsolicited electronic commercial messages where the recipient has not consented to receive such messages;

(f) not interfere with or disrupt CarSmart Workshop's business, Website or the Tutorials;

(g) not do any act which would in any way infringe any person's Intellectual Property Rights or other rights; and

(h) ensure the security and confidentiality of your membership details, including any username and/or password assigned to you. You are wholly responsible for all activities which occur under your membership details (including unauthorised use of your credit card). You must notify us immediately if you become aware of any unauthorised use of your membership details. You must not permit your membership details to be used by or transferred to any other person.

3.2 Account Holders

Up to 4 individuals, known as Account Holders, may be nominated by the Member to have access to the Website and all its content. The details of such Account Holders is to be provided by the member to CarSmart Workshop at the time the Member completes its membership application.

4. Variation to terms and conditions

4.1 CarSmart Workshop may from time to time, in its absolute discretion, vary these terms and conditions as by posting the amended terms and conditions on the Website and may (in its absolute discretion) also notify the Member of the variation by notice in writing such variation will come into effect on the date the amended agreement is posted to the Website.

4.2 The Member must regularly check the Website and review the latest version of the terms and conditions included on the Website to ensure that it is complying with the most current version of this agreement published by CarSmart Workshop.

5. Payment of the Fee

5.1 Basis for charging

The Member will pay the Fee in order to access the Website and all its content.

The then current Fee for membership are specified on the sign up page of the Website, and may be varied from time to time by CarSmart Workshop.

The Fee is non-refundable.

The Fee is for a 12 month subscription period.

At the discretion of CarSmart Workshop, a bonus offer may be available at the time of the initial sign-up.

6. Intellectual Property Rights

6.1 Ownership

CarSmart Workshop owns (or is the licensee of) all Intellectual Property Rights in:

(a) the Website and all its content;

(b) all Pre-Existing IPR; and

(c) all documentation, know-how, methodologies, equipment and other materials supplied or made available to the Member under or in connection with these terms and conditions.

6.2 No rights to transfer

Nothing in these terms and conditions transfers or assigns to the Member any of those rights.

7. Confidential information

7.1 Use and disclosure

A Receiving Party:

(a) may use Confidential Information of the Disclosing Party only for the purposes of these terms and conditions; and

(b) must keep confidential all Confidential Information of the Disclosing Party except:

(i) for disclosures permitted under this clause 7; and

(ii) to the extent (if any) the Receiving Party is required to disclose any Confidential Information by Law or in accordance with the rules of an applicable stock exchange.

7.2 Use and disclosure of Confidential Information

A Receiving Party may disclose Confidential Information of the Disclosing Party:

(a) in the case of CarSmart Workshop, to Network Operators as required by the terms of any agreements between CarSmart Workshop and those Network Operators; and

(b) to persons who:

(i) have a need to know for the purposes of this agreement (and only to the extent that each has a need to know); and

(ii) before disclosure:

A. in the case of the Personnel of the Receiving Party, have been directed by the Receiving Party to keep confidential all Confidential Information of the Disclosing Party; and

B. in the case of other persons, have agreed in writing with the Receiving Party to comply with substantially the same obligations in respect of Confidential Information of the Disclosing Party as those imposed on the Receiving Party under these terms and conditions,

(each a Direction).

7.3 Receiving Party's obligations

A Receiving Party must:

(a) ensure that each person to whom it discloses Confidential Information of the Disclosing Party under clause 7.2(b)(ii) complies with its Direction; and

(b) notify the Disclosing Party of, and take all reasonable steps to prevent or stop, any suspected or actual breach of a Direction.

7.4 Disclosure required by Law

If a Receiving Party is required by Law to disclose any Confidential Information of a Disclosing Party to a third person (including government) the Receiving Party must:

(a) before doing so:

(i) notify the Disclosing Party; and

(ii) give the Disclosing Party a reasonable opportunity to take any steps that the Disclosing Party considers necessary to protect the confidentiality of that information; and

(b) notify the third person that the information is confidential to the Disclosing Party.

8. Privacy

Each party:

(a) agrees to be bound by the Privacy Laws applicable to it with respect to any act done or practice engaged in by the party for the purposes of these terms and conditions (including, in relation to the Member, in respect of the collection, use, disclosure and storage of the Personal Information of the Member);

(b) must (and must ensure that its Personnel) comply with:

(i) the Privacy Laws and all guidelines issued by applicable privacy offices (and any similar regulatory bodies); and

(ii) the privacy procedures or policies set out at www.carsmartworkshop.com.au/privacy, as varied by CarSmart Workshop from time to time;

(c) must notify the other party immediately:

(i) of any complaint from any person alleging a breach of the Privacy Laws;

(ii) if it becomes aware of a breach, or a suspected or possible breach, by it of any of its obligations under this clause 8; or

(iii) if it becomes aware that any disclosure of Personal Information may be required by Law;

(d) cooperate with the other party in:

(i) resolving any complaint alleging a breach of the Privacy Laws or any privacy statement regarding any Personal Information; and

(ii) providing access to any record of Personal Information following a request from an individual; and

(e) take appropriate technical and organisational measures to prevent (to the extent reasonably practicable):

(i) unauthorised or unlawful use or disclosure of; and

(ii) accidental loss or destruction of, or damage to, Personal Information.

9. Data protection

9.1 Use of Member information

CarSmart Workshop must not (and must ensure that its Personnel do not):

(a) use information relating to the Member (“Member Data”) held by CarSmart Workshop, or to which CarSmart Workshop has access, other than for the purposes of fulfilling its obligations under these terms and conditions; or

(b) purport to sell, let for hire, assign rights in or otherwise dispose of any Member Data, other than as required to enable CarSmart Workshop to:

(i) disclose Member Data to Network Operators in accordance with the terms of CarSmart Workshop's agreements with such Network Operators; and

(ii) comply with applicable Laws or the rules of any applicable stock exchange.

9.2 Safeguarding Member Data

CarSmart Workshop will:

(a) establish and maintain reasonable safeguards against the destruction, loss or alteration of Member Data in the possession, custody or control of CarSmart Workshop; and

(b) use its reasonable endeavours to protect the Member Data from destruction, loss, alteration or security breaches while the Member Data is stored in CarSmart Workshop Systems.

9.3 Third party websites, advertising and activities

(a) CarSmart Workshop may feature or display links and pointers to websites operated by third parties. Such websites are not under our control, and CarSmart Workshop does not accept any responsibility in connection with any such website. If you link to any such websites, you do so entirely at your own risk.

(b) You must not link to the Website from any other website (or otherwise authorise any other person to link from a third party website to the Website) without our prior written consent.

(c) The Website may feature or display third party advertising. By featuring or displaying such advertising, CarSmart Workshop does not in any way represent that it recommends or endorses the relevant advertiser, its products or services.

(d) CarSmart Workshop may promote, advertise, or sponsor functions, events, offers, competitions or other activities that may be conducted offline and may be conducted by third parties. Your participation in any such activity is entirely at your own risk.

10. Warranties

The Member warrants to CarSmart Workshop that:

(a) it has the requisite power and authority to enter into this agreement and to carry out its obligations;

(b) the use of the Website and all its content will not infringe the Intellectual Property Rights or other rights of any person;

(c) it holds (and will at all times continue to hold) all rights permits, licences, authorisations and accreditations required for it to perform its obligations under these terms and conditions; and

(d) the performance of its obligations under this agreement will:

(i) comply with all such rights, permits, licences, authorisations and accreditations; and

(ii) not contravene any applicable Laws.

11. Exclusion of warranties and limited liability

11.1 Exclusion of warranties

(a) CarSmart Workshop excludes all express and (to the maximum extent permitted by law) implied conditions, warranties and liabilities, except for any liability or implied condition or warranty the exclusion or limitation of which would contravene any applicable statute or cause any part of this clause to be void (“Non-excludable Condition”).

(b) To the maximum extent permitted by law, CarSmart Workshop's liability to the Member for breach of any Non-excludable Condition is limited, at CarSmart Workshop's option, to:

(i) in the case of goods, repair or replacement of the goods or payment of the cost of the repair or replacement; and

(ii) in the case of services, resupply of the services or payment of the cost of the resupply.

11.2 Exclusion of liability

Subject to clause 11.4(b), but despite any other provision of this agreement, CarSmart Workshop excludes all liability:

(a) in relation to the content of the Website and all its content; and

(b) in relation to the content of any third parties’ website which is linked to the Website; and

(c) for loss of revenue, loss of goodwill, loss of customers, loss of capital, downtime costs, loss of profit, loss of or damage to reputation, loss under or in relation to any other contract, loss of data, loss of use of data, personal, personnel and customer personal injury, damage or loss, loss of anticipated savings or benefits, the cost of procuring any substitute services, or any indirect, consequential or special loss, damage, cost or expense or other Claims for consequential compensation, incurred by or awarded against the Member under or in any way connected with this agreement, the Website or the Tutorials.

11.3 Liability cap

Subject to clauses 11.2 and 11.4(b), but despite any other provision of this agreement, CarSmart Workshop's total aggregate liability for any and all Damages suffered or incurred by the Member under or in any way connected with this agreement or the provision of the Tutorials is limited to an amount equal to the Fees paid by the Member to CarSmart Workshop.

11.4 Application of exclusions and limitations

The exclusions and limitations of liability in clauses 11.2 and 11.3:

(a)apply whether the relevant Claim is made under statute, in tort (for negligence or otherwise), under an indemnity, in equity or otherwise; and

(b) do not exclude or limit the application of any provision of any statute where to do so would:

(i) contravene that statute; or

(ii) cause any part of this clause to be void.

12. Indemnity

The Member indemnifies CarSmart Workshop and its Personnel (those indemnified), and will hold those indemnified harmless, against all Damages suffered or incurred by any or all of those indemnified arising, directly or indirectly, out of or in connection with:

(a) a breach of these terms and conditions by the Member;

(b) the access to the Website and/or the use of the Tutorials;

(c) any negligent or fraudulent act, error or omission on the part of the Member or its Personnel;

(d) loss of or damage to any property or injury to or death of any person caused by any act or omission of the Member or its Personnel; or

(e) any Claim by a third party (including any Network Operator) against CarSmart Workshop relating to the Website and all its content.

13. Termination

13.1 Termination by CarSmart Workshop due to Network operator termination

CarSmart Workshop may terminate this agreement immediately by notice to the Member if any of CarSmart Workshop's agreements with relevant Network Operators terminate or expire.

13.2 Termination by CarSmart Workshop for cause

CarSmart Workshop may terminate its agreement with the Member immediately by notice to the Member if:

(a) the Member commits any breach of any of these terms and conditions that are:

(i) capable of remedy and the Member fails to remedy the breach within 30 days after receiving written notice requiring it to do so; or

(ii) incapable of remedy;

(b) the Member ceases to be able to pay its debts as they become due;

(c) any step is taken by a mortgagee to take possession or dispose of the whole or part of the Member's assets, operations or business;

(d) any step is taken to enter into any arrangement between the Member and its creditors;

(e) any step is taken to appoint a receiver, a receiver and manager, a trustee in bankruptcy, a provisional liquidator, a liquidator, an administrator or other like person of the whole or part of the Member's assets, operations or business;

(f) the Member disposes of the whole or part of its assets, operations or business other than in the ordinary course of business;

(g) the Member ceases to carry on business;

(h) where the Member is a partnership, any step is taken to dissolve that partnership; or

(i) where the Member is an individual, the Member dies or becomes bankrupt.

13.3 Consequences of termination

(a) On expiry or termination for any reason:

(i) the Member must refrain from accessing or using the Website and all its content and ensure that neither it nor any of its Personnel access or use any of CarSmart Workshop Systems; and

(ii) CarSmart Workshop may:

A. retain any Fees that have been paid to it;

B. terminate all means or modes of access and use of the Website, the Tutorials or the CarSmart Workshop Systems by the Member and its Personnel; and

C. be regarded as discharged from any further obligations under these terms and conditions.

(b) Despite anything else in these terms and conditions, the Member acknowledges and agrees that CarSmart Workshop may keep a reasonable number of copies of:

(i) the Member's Confidential Information disclosed to CarSmart Workshop; and

(ii) the Member Data,

(c) for record keeping and quality control purposes, to allow CarSmart Workshop to comply with all applicable Laws, and to otherwise fulfil the terms of CarSmart Workshop's agreements with Network Operators.

13.4 Accrued rights and remedies

Termination will not prejudice any right of action or remedy which may have accrued to either party prior to such termination.

14. Miscellaneous

14.1 Assignment

The Member may only assign its rights with the prior written consent of CarSmart Workshop.

14.2 Force Majeure

Neither party is liable for any failure to perform or delay in performing its obligations under these terms and conditions if that failure or delay is due to anything beyond that party‘s reasonable control. This clause does not apply to any obligation to pay money. The deadline for any obligation that is affected by the Force Majeure will be extended by a period equivalent to the period for which the Force Majeure has prevented that obligation being performed.

14.3 Entire agreement

These terms and conditions constitutes the entire agreement between the parties and supersedes all prior representations, agreements, statements and understandings, whether verbal or in writing, which do not form part of, and may not be relied on by either party in construing, these terms and conditions.

14.4 Further action

Each party must do, at its own expense, everything reasonably necessary (including executing documents) to give full effect to these terms and conditions and any transaction contemplated by it.

14.5 Survival

Any indemnity or any obligation of confidence under these terms and conditions are independent and survive termination of the arrangement between CarSmart Workshop and the Member. Any other term by its nature intended to survive termination, including clauses 8, 9, 11, 12, 13.4 and this clause 14.7.

14.6 Severability

Each clause of these terms and conditions and each part of each clause must be read as a separate and severable provision. If any provision is found to be void or unenforceable, that provision may be severed and the remainder of these terms and conditions will continue in force.

14.7 Waiver

A party does not waive a right, power or remedy if it fails to exercise or delays in exercising the right, power or remedy. A single or partial exercise of a right, power or remedy does not prevent another or further exercise of that or another right, power or remedy. A waiver of a right, power or remedy must be in writing and signed by the party giving the waiver.

14.8 Governing law and jurisdiction

The laws of Victoria govern these terms and conditions, and each party irrevocably and unconditionally submits to the non exclusive jurisdiction of the courts of Victoria.