1.1 All Goods and Services supplied by Us are subject to these Terms and Conditions.
Agreement means these Terms and Conditions, the Order, the Order Confirmation and any document that the parties agree in writing forms part of the Agreement.
Artwork Confirmation means the document we provide to You that identifies the Artwork that is to be reproduced on the Goods and Services you have Ordered from Us.
Confidential information means this Agreement, Our and Your confidential business, technical and financial information, except to the extent that the information is in the public domain
Force Majeure Event means circumstances beyond the reasonable control of Us, including
(a) You not providing appropriate facilities, access or information or providing inaccurate information;
(b) fire, storm or tempest or acts of God;
(c) unavailability of labour, materials or services;
(d) process shutdown;
(e) terrorism, vandalism, riot or civil commotion or war;
(f) strikes, labour disputes or industrial action, or industrial accident;
(g) changes in any applicable law, standards or the practice or requirements of any governmental or other official agency.
Goods has the same meaning as defined in the PPSA.
Order means the request We receive from You for the provision of Goods or Services in accordance with this Agreement.
Order Confirmation means the document we provide to You that identifies the Goods and Services you have Ordered from Us.
Our Premises means 5/71 Victoria Parade, Level 2 Nelson Towers, Nelson Bay NSW 2315 and/or 3/138 George Road, Salamander Bay NSW 2317, or any other premises from which We conduct business from time to time.
Parties means You and Us
Person includes any legal entity.
Personnel means a party's officers, employees, agents or contractors.
PPSA means the Personal Property Securities Act 2009 (Cth) as amended from time to time.
Products means all goods and services supplied by Us in accordance with the terms of this Agreement.
Total price means the price for Our Goods and Services as stated in the contract for sale.
Us/We means Get Smart Promotional Products Pty Ltd A.C.N. 094 241 193.
You/Your means the Person that enters into this Agreement with Us.
2.1 In the interpretation of this Agreement, unless the context otherwise requires:
(a) 'Include' and similar words are not words of limitation; and
(b) any agreement, representation, warranty obligation or indemnity which binds 2 or more Persons (including where 2 or more persons are included in the same defined term), binds or benefits them jointly and severally.
2.2 In this Agreement, headings are for convenience only and do not form part of the Agreement.
2.3 To the extent of any inconsistency between the Terms and Conditions and any other document that is in the Agreement, the Terms and Conditions will prevail.
2.4 To the extent that context permits, the singular includes the plural and vice versa, words denoting individuals or persons include bodies corporate and vice versa, reference to documents or agreements also mean those documents or agreements as changed, novated or replaced, and words denoting one gender include all genders.
2.5 Reference to an amount of money is a reference to the amount in lawful currency of the Commonwealth of Australia.
2.6 Parties must perform their obligations on the dates and times fixed by reference to the capital city of NSW.
2.7 If the day on which anything is to be done is a Saturday, a Sunday or a public holiday in the place in which it is to be done, then it must be done on the next business day.
2.8 References to a Person are intended to bind their executors, administrators and permitted transferees.
2.9 This Agreement is deemed to have been entered into by You and Us in the state of New South Wales regardless of where any purchase order or other document has been placed or submitted by any party.
2.10 This Agreement is to be governed by the laws of New South Wales and You and Us submit to the non-exclusive jurisdiction of the courts of New South Wales.
2.11 All notices are to be provided in writing to the addresses in the contract for sale or as otherwise available through ASIC.
3.1 All Orders must be confirmed to Us in writing.
3.2 After We have received an Order from You, We will provide you with an Order Confirmation and an Artwork Confirmation.
3.3 Until such time as We receive a signed the Order Confirmation and a signed Artwork Confirmation, no Order is binding on Us.
3.4 Any Order Confirmation and Artwork Confirmation We provide to You remains valid for 30 days from the date We send it to You.
3.5 Upon our receipt of the signed Order Confirmation and Artwork Confirmation from You, We agree to supply to You the Products in the Order Confirmation and Artwork Confirmation on the terms and conditions in this Agreement.
3.6 We reserve the right to accept or reject any Order in whole or in part in Our absolute discretion.
3.7 When You, or Your Personnel, place any Order with Us, You accept and agree to be bound by the terms and conditions of this Agreement.
3.8 You agree to pay the total amount identified in the Order Confirmation on the terms identified in the Order Confirmation.
3.9 Unless expressly stated, You may not retain any payment due to be paid to Us as identified in the Order Confirmation.
3.10 Unless expressly stated, the Order Confirmation price does not include any goods and service tax, any other tax, levy, stamp duty or any other impost imposed by any State or Federal Government in Australia. These items will be identified as separate items on our tax invoice and You will be responsible for, and will indemnify Us, in relation to these costs.
4.1 Unless otherwise agreed in writing, all Products will be delivered by Us to the address identified in the signed Order Confirmation.
4.3 You agree that You are responsible for all costs and fees associated with delivery of Products to You, regardless of whether We arrange delivery of Products.
4.4 Unless otherwise stated in this Agreement, when We arrange delivery of Products to You, we will ensure that the delivery includes transit insurance.
4.5 When You arrange for the delivery of Products or You direct Us to use a specific method of delivery, all risk immediately passes to You when the Product is collected from Our Premises and You will be responsible for any transit insurance.
4.3 Unless otherwise stated in this Agreement, the risk in any Products We provide to You immediately passes to You when You receive the Products at delivery regardless of whether the goods are collected by You, Your Personnel, a courier, collection agent or any person whatsoever. It is Your responsibility to insure the goods from the time You receive the goods on delivery.
4.4 If We are delayed, prevented, hindered or otherwise restricted from undertaking any work or delivering any Products whether due to a Force Majeure Event or for any other reason outside Our control, the time in which We will deliver the Products to You will be extended until the cause has ceased and We shall not be liable to make good any damage or loss to You or any third party arising directly or indirectly from the delay in the delivery of the Products.
4.5 If a delivery date is specified in the Order Confirmation, then, subject to clause 4.4, We will endeavor to deliver the Products by the delivery date. If no delivery date is specified in the Order Confirmation, then We will endeavor to deliver the Products within a reasonable time.
5.1 Title of the Goods passes to You free of encumbrances and all other adverse interests upon payment in full by You being received by Us in relation to Goods supplied to You. Until title in the Goods passes to You Our title is a security interest.
5.2 We reserve the following rights in relation to Goods until all accounts paid by You are fully paid:
5.2.1 ownership of the Goods;
5.2.2 to enter Your premises (or the premises of any associated company or agent where the Goods are located) without liability for trespass or any resulting damage and retake possession of the Goods; and
5.2.3 subject to, and in accordance with the PPSA, to keep or resell and Goods repossessed pursuant to clause 5.2.2 above.
5.3 If the Goods are resold, or products manufactured using the Goods are sold, by You, You shall hold such part of the proceeds of any such sale as represents the invoice price of the Goods sold or used in the manufacture of the Goods sold in a separate identifiable account as the beneficial property of Us and shall pay such amount to Us upon request. Notwithstanding the provisions above We shall be entitled to maintain an action against You for the purchase price and the risk of the Goods shall pass to You upon delivery.
5.4 This agreement is a security agreement.
5.5 Our interest in the Goods and all proceeds from the sale of the Goods by You to a third party is a security interest.
5.6 You consent to Us registering Our security interest on the Personal Property Securities Register and agrees to provide all assistance reasonable required by You to facilitate registration.
5.7 Until such time as title in the Goods has passed to You as contemplated by clause 5.1 above, You agree not to in any way assign, charge, lease or otherwise deal with the Goods in such a manner as to create a security interest over the Goods in favour of You or any third party. The Parties agree that this clause will not prohibit You from selling the Goods in the ordinary course of business.
5.8 You waives Your rights to receive any notice under the PPSA (including notice of verification statement) unless the notice is required by that Act and cannot be excluded.
5.9 The Parties agree that this Agreement and all related information and documents are confidential (Confidential Information) and will not be disclosed to unauthorised representatives or third parties, except to the extent disclosure is permitted by this Agreement or required by law. The Parties agree that We will not disclose the Confidential Information pursuant to a request under section 275(1) of the PPSA.
5.10 Unless the Goods are used predominantly for personal, domestic or household purposes, the Parties agree each of the following requirements or rights under the PPSA do not apply to the enforcement of Our security interest in the Goods or of this agreement:
5.10.1 any requirement for Us to give You a notice of removal of accession;
5.10.2 any requirement for Us to give You a notice of Our proposed disposal of the Goods;
5.10.3 any requirement for Us to include in a statement of account, after disposal of the Goods, the details of any amounts paid to other secured parties;
5.10.4 any requirement for Us to give You a statement of account if We do not dispose of the Goods;
5.10.5 any right You have to redeem the Goods before We exercises a right of disposal; and
5.10.6 any right You have to reinstate this agreement before We exercises a right of disposal of the Goods.
5.11 If You become insolvent, without prejudice to any other rights to Us
5.11.1 Your right to sell the Products in the ordinary course of business in accordance with the PPSA and other rights of You in relation to the Products immediately cease; and
5.11.2 You must immediately return to Us, at Your expense, the Products in which title has not passed to You.
5.12 Expressions defined in the PPSA have the same meaning when used in this agreement.
6.1 Unless otherwise stated in this Agreement, this Agreement may only be varied by the written consent of both Us and You.
7.1 All specifications and the date of delivery thereof appearing on Order Confirmation issued by Us are approximate only and are not binding upon Us. Unless specified in Order Confirmation, and agreed to by Us, all specification and dates of delivery may be varied at Our discretion.
8.1 Any design, purported or otherwise, supplied to Us by You, are accepted subject to You hereby warranting that no patent, copyright or registered design right will be infringed in the manufacture or sale thereof and upon the condition that You indemnify Us in relation to all compensation, damages, interest and costs which may be incurred by awarded against or ordered to be paid by Us, whether by judgment or order of a court, arbitrator, consent order or any other means, in relation to any claim made upon Us in relation to infringement, or claimed infringement of any such patent, copyright or registered design.
8.2 You acknowledge that the intellectual property developed by Us in providing You with the Products in accordance with this Agreement, whether with Your input or otherwise, are the absolute property of Us and You will do all acts and things and sign all documents that may be necessary to vest such intellectual property in Us.
8.3 You irrevocably appoint Us to be Your attorney only to the extent that We may do all acts and things and sign all documents that may be necessary to vest such intellectual property in Us.
9.1 No claim for shortages or damage to Products supplied pursuant to this Agreement may be made by You or on Your behalf unless written notice of the claim is given to Us within 3 days after delivery, in respect of which time shall be of the essence, and unless the Products in respect of which the claim is made are preserved intact as delivered for a period of 14 days after such notice is given.
9.2 You will permit Us to attend and inspect all Products that were delivered to You with the Products for which a claim is made at a time suitable to Us during ordinary business hours or request you to send us photographs and physical samples. If You fail to permit Us to inspect all Products, any claim made by You, or on Your behalf in respect of shortages or damage will be deemed to be waived.
9.3 If You fail to make any claim for shortages or damage to Products sold within 3 days after delivery, You are deemed to have waived all such claims.
9.4 We are not liable for any damage sustained to any consequential loss or damage arising from any defect caused to any Products by such transport, handling, installation, fixing or operation.
9.5 You warrant that You will make no claim against Us or any of Our Personnel, in relation to loss, damage or injury to You, Your Personnel and any other Person where such loss, damage or injury is alleged to be caused by any Products, or the malfunction of any Products, or the delivery of any Products supplied by Us to You under this Agreement to the extent permitted by law. The warranty pursuant to this clause relates to all present or future claims for loss, damage or injury howsoever caused, including but not limited to negligence, breach of contract, tort, breach of statutory duty, indirect or consequential loss, or other act or omission, whether intentional or not, or by Us or Our Personnel. You release Us, unconditionally, in relation to all such claims to the extent permitted by law.
9.6 You indemnify Us in relation to all compensation, damages, interest and/or costs incurred by, awarded against or ordered against Us in relation to loss, damage or injury to You, Your Personnel and any other Person alleged to be caused by any Products, or the malfunction of any Products, or the delivery of any Products supplied by Us to You under this Agreement.
9.7 The indemnity in clause 9.6 shall operate whether or not such loss, damage or injury comprises or includes physical injury or economic loss, and whether or not any such claim is brought in tort, contract, breach of statutory duty or otherwise and whether or not such loss or injury was caused by the negligence, breach of contract, tort, breach of statutory duty or other act, whether intentional or not, by Us or Our Personnel.
9.8 The indemnity in clause 9.6 shall operate whether or not the compensation, damages, interest or costs referred to arise by judgment or order of the court, arbitrator, consent order or any other means.
9.9 The indemnity in clause 9.6 shall operate in relation to any claim made upon Us, whether by You directly, or indirectly through You, Your Personnel or any other Person.
10.1 We warrant that all Products sold by Us pursuant to this Agreement are free from defects but to the extent permitted by law, Our liability under this warranty is limited to replacement free of charge of defective Products or parts, such replacement to occur at Our Premises or such other place as elected by Us, and such replacement to be limited to replacement of defective Products and parts, but excluding labour. The warranty in this clause 10.1 is subject to the following provisions of clause 10.
10.2 Subject to any non-excludable law of the State of New South Wales, or of any other State of the Commonwealth, or of the Commonwealth of Australia to the contrary, no claim by, or on behalf of You in relation to defective Products sold pursuant to this Agreement, or otherwise, may be made unless written notice of the claim is given to Us within 3 calendar months after delivery, in respect of which time shall be of the essence.
10.3 Subject to any non-excludable law of the State of New South Wales, or of any other State of the Commonwealth, or of the Commonwealth of Australia to the contrary, if the You fail to make any claim for defective Products sold pursuant to this Agreement, or otherwise, within 3 calendar months after delivery, the buyer is deemed to have waived all such claims.
10.4 Any Products or parts alleged by You to be defective are to be returned to Our Premises in their original packaging at Your cost.
10.5 The warranty in this clause 10 has, and will have, no application if:
10.5.1 Damage, failure, fading, or deterioration (of the whole of the Product or its components) caused by normal wear and tear; or
10.5.2 Damage (including corrosion) caused by improper use, abuse, neglect, assembly, placement, storage care or maintenance, including damage caused by normal wear and tear; or
10.5.3 Damage caused in circumstances where the Product has been used in a manner which is greater than, or exceptional to normal use;
10.5.4 Damage caused by acts of God; or
10.5.5 Defects in Products sold "As Is" which have been brought to Your attention in the
10.6 All other warranties whether implied by law or otherwise except for non-excludable warranties are hereby expressly excluded.
11.1 Either party may terminate this Agreement immediately by notice if:
11.1.1 the other party breaches an essential term of the Agreement and fails to remedy such breach (if capable of remedy) within 14 days of receiving written notice of the breach by the non-breaching party;
11.1.2 being a corporation, the other party goes into liquidation, has a receiver or receiver and manager appointed to it or any part of its assets, enters into a scheme of arrangement with creditors or suffers any other form of external administration;
11.1.3 being an individual, has a meeting of creditors called or held or a step is taken to make the other party bankrupt;
11.1.4 a Force Majeure Event continues for more than 60 days
11.2 Except where termination is due to a breach of the Agreement by Us, You indemnify and keep Us indemnified and must defend Us from any damage, loss, cost or expense (including legal fees, whether to be paid to other parties or Our legal fees on a solicitor client basis) to any agents, subcontractors or other third parties arising out of termination.
11.3 If the Agreement is terminated for any reason prior to the supply of the Products, You acknowledge that any use of the incomplete Products will be entirely at Your own risk and You indemnify and keep Us indemnified and must defend Us from any damage, loss, cost or expense (including legal fees, whether to be paid to other parties or Our legal fees on a solicitor client basis) incurred by You, Your Personnel or any other Person as a result of any Products being incomplete.
12.1 If a dispute ("the Dispute") arises from this Agreement (including any dispute as to breach or termination of this Agreement or as to any claim in tort, in equity or pursuant to any statute) a party may not commence proceedings relating to the Dispute unless it has complied with clause 12 except where the party seeks urgent interlocutory relief.
12.2 A party claiming that a Dispute has arisen under or in relation to the Agreement must give written notice to the other party specifying the nature of the Dispute.
12.3 On receipt of that notice by the other party, the parties must endeavor to resolve the Dispute expeditiously using informal resolution techniques such as mediation, expert evaluation or determination or similar techniques agreed by them.
12.4 If the parties do not agree within 7 days of receipt of the notice (or such further period as agreed in writing by them) as to:
12.4.1 the dispute resolution technique and procedures to be adopted
12.4.2 the timetable for all steps in those procedures; and
12.4.3 the selection and compensation of the independent person required for such technique,
the parties must mediate the Dispute under the Mediation Rules of the Resolution Institute (RI) with the parties being equally responsible for RI costs.
13.1 To the extent permitted by law, Our liability to You in relation to the Agreement is limited to the re-supply of the Products or the cost of re-supply. Otherwise, to the extent permitted by law and whether in contract, tort (including negligence) or otherwise:
13.1.1 Our total liability to You, any Person claiming by, under or through You, Your Personnel or any other Person, including, without limitation insurers, in relation to the Products is limited in aggregate to the amount of the Order Confirmation to which any such liability relates;
13.1.2 We will not be liable to You, Your Personnel or any other Person and You indemnify and release Us for any damage, loss, cost or expense (including legal fees), including any lost, delayed or diminished profits, revenues, business opportunities or production or for special, indirect, financial, indirect or consequential loss or economic loss or damages to You, Your Personnel or any other Person; and
13.1.3 Any claim must be brought by You or Your Personnel within 12 months of the date of supply of the Products to You. In the case of third party claims, You indemnify and must defend Us in respect of such claims which exceed or are otherwise outside the limits of clause 13.1.
13.2 We will not be liable to You, Your Personnel or any other Person and You indemnify and release Us for any damage, loss, cost or expense (including legal fees), including any lost, delayed or diminished profits, revenues, business opportunities or production or for special, indirect, financial, indirect or consequential loss or economic loss or damages to You, Your Personnel or any other Person in relation to:
13.2.1 errors or omissions in any materials not designed by or prepared by Us;
13.2.2 defects in the course of supplying the Products;
13.2.3 any rights We exercise pursuant to this Agreement; and
13.2.4 The use of the Products for any purpose other than for what is provided and in accordance with the Agreement.
13.3 You indemnify and must defend Us, Our Personnel and any affiliated Persons from any damage, loss, cost or expense ((including legal fees, whether to be paid to other parties or Our legal fees on a solicitor client basis) including any lost, delayed or diminished profits, revenues, business opportunities or production or for special, indirect, financial, indirect or consequential loss or economic loss or damages as a result of any breach of contract or negligent act, omission or statement on the part of You or Your Personnel.
14.2 Cookies are pieces of information we obtain and collect when Your device is used to access our Website and our online facilities.
14.3 Session cookies are only used during each individual session you access our Website. This information is collected and used to allow Us to know that You are the same person during Your individual session on Our Website. When you end Your session on our Website by closing the internet browser, all information that has been obtained with the session cookies is destroyed. No information obtained from sessions cookies, whether the information can identify You or not is collected when You finish Your session.
14.4 Permanent cookies are used to be able to identify You when you use Our Website over more than 1 session. These cookies are stored on Your device. The permanent cookies allow Us to recognise You each time You visit and to track what pages You visit on Our Website. We may use this information to build a profile on You.
14.5 Unless You provide Us with Your personal information on Our Website, we do not know Your personal details and all of the information obtained is encrypted. Once You have provided Your personal information, such as during an online enquiry, the encrypted information we have obtained is collated with Your personal information for Your profile.
14.6 We do not provide any information obtained with cookies to any third party without your consent except:
14.6.1 when we are required by law to disclose the information;
14.6.2 where we have outsourced Our internal functions, such as but not limited to administrative functions, and the information is required in the day-to-day operations of Our business.
14.7 You may be able to disable cookies on Your device or on Your browser however doing so may reduce the performance of Our Website for You.
15.1 If any clause, part or provision or part of a clause or provision of this Agreement is held or found to be void, invalid or otherwise unenforceable it will be severed to the extent that it is void or to the extent of voidability, invalidity or unenforceability, but the remainder of the Agreement will remain in full force and effect.
16.1 This Agreement is governed by the laws of New South Wales and the Parties submit to the non-exclusive jurisdiction of the Courts of New South Wales.
the parties must mediate the Dispute under the Mediation Rules of the Resolution Institute (RI) with the parties being equally responsible for RI costs.