terms-mendelsons

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1. DEFINITIONS
   • The Supplier is EcoCareBags Pty Ltd ACN 123 977 202 of Level 27, 525 Collins Street, Melbourne VIC 3000.
   • Any reference to “the Customer” includes any person engaging the Supplier on behalf of and with the authority of the person or entity that the Order is provided for.
   • The Order is defined as any request for the supply of Goods and Services by the Customer to the Supplier which has been accepted by the Supplier.
   • The Goods are the tote bags and promotional merchandise products provided by the Supplier.
   • The Services are the printing and decoration by the Supplier of an image(s) or logo(s) onto the Goods and delivery of the Goods to the Customer including any loading, packing, unloading or unpacking.
   • The proof/artwork is the image(s) or logo(s) supplied by the Customer in connection with the Services and the copy is a reference to the image(s) or logo(s).
   • Reference to loss and damage includes indirect, reliance, special or consequential loss and/or damage including i) any loss of income profit or business; ii) any loss of good will or reputation; iii) any loss of value of intellectual property.
   • Major failure is as defined under the Competition and Consumer Act 2010 (Cth).
   • GST refers to goods and services tax under the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
2. GENERAL
   • These terms and conditions together with the Supplier’s quotation, proof, specification sheet, credit application form and the Customer’s written order or purchase order document (if any) constitutes the agreement between the Supplier and the Customer (“the agreement”).
   • Any Order is deemed to incorporate these terms and conditions; which may not be varied unless expressly agreed to by the parties in writing. In the event that an inconsistency exists and/or arises between these terms and the Order it is acknowledged between the parties that these terms and conditions will prevail.
   • The terms and conditions are binding on the Customer, and the Customer’s heirs, assignees, executors, trustees and where applicable, any liquidator, receiver or administrator.
   • In these terms and conditions, the singular shall include the plural, the neuter gender shall include the masculine and feminine and words importing persons shall apply to corporations and vice versa.
   • Where more than one Customer completes this agreement each shall be liable jointly and severally.
   • If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired and the offending provision shall be deemed as severed from these terms and conditions.
   • The Supplier may license or sub-contract all or any part of its rights and obligations without the Customer’s consent but the Supplier acknowledges that it remains at all times liable to the Customer in accordance with the terms herein.
   • The failure by a party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision.
   • The Customer acknowledges that the Supplier may detail these terms and conditions on its website. In this event, the terms and conditions on the Supplier’s website shall apply to any future dealings as between the parties and the Customer is deemed to have notice of any such terms and conditions and/or amendments.
3. QUOTATIONS AND PLACEMENT OF ORDERS
   • Any quotation for the supply of Goods and Services given by the Supplier will expire after three (3) days unless specified otherwise
   • The Supplier does not represent that it will provide any Goods and Services unless such Goods and services are included in the quotation or the Order.
   • A request for Goods and Services may be placed by the Customer with the Supplier either verbally or in writing however the Supplier may require the Customer to provide a written order or purchase order document prior to any Goods being released or dispatched by the Supplier.
   • As a condition of acceptance the Supplier may require pre-payment or a deposit in respect of the Price and in this event the Supplier may not be deemed to have accepted the Customer’s request for Goods and Services unless or until such pre-payment or deposit has been paid by the Customer.
   • The Supplier may agree to provide, on request from the Customer, additional Goods and Services not included or specifically excluded in the quotation given or in the Customer’s Order (“a variation”). In this event, the Supplier shall be entitled to make an additional charge.
   • All prices quoted or advertised by the Supplier are based on taxes and statutory charges current at that time. Should these vary during the date of the Order to the date of the invoice, the difference will become the responsibility of the Customer and the Customer will be invoiced for the extra charge by the Supplier.
4. PRICE
   • GST will be charged on the Goods and Services provided by the Supplier that attract GST at the applicable rate.
   • At the Supplier’s sole discretion the Price shall be either:
     • The Supplier’s quoted or advertised Price for the Order; or
     • As detailed on invoices provided by the Supplier to the Customer in respect of Goods and Services supplied.

5. PROVISION OF THE GOODS AND SERVICES
   • The Supplier reserves its right to:
     • Decline requests for the supply of any Goods and Services requested by the Customer;
     • Cancel or postpone the delivery of the Goods at its discretion.
   • Delivery of the Goods shall be deemed to be complete when the Goods are collected by the Customer or are delivered to the Customer, the Customer’s agent or to the carrier as nominated by the Supplier and/or Customer.
   • If the Customer fails to make all arrangements necessary to take delivery of the Goods the Customer shall, at the discretion of the Supplier, be liable for a $33.00 non-delivery fee and the Supplier shall be entitled, also at its discretion, to charge a reasonable fee for redelivery and a fee for storage of the Goods at the rate of $4.00 per pallet per day and $0.25 per carton per day from the date of failed delivery until the Goods are re-delivered to the Customer.
   • Unless specified to the contrary in the quotation or the Order, the Supplier does not warrant that it will be capable of delivering the Goods on a specific day or at a specific time requested by the Customer.
   • Subject to otherwise complying with its obligations the Supplier shall exercise its independent discretion as to its most appropriate and effective manner of performing the Services and delivering the Goods to the Customer.
6. PAYMENT AND CREDIT POLICY
   • Non-Account Customers must make full payment to the Supplier on placing the Order with the Supplier unless otherwise specified or agreed between the Parties in writing. Orders will not be processed until payment is received.

Credit

• Credit will only be granted at the sole discretion of the Supplier and upon submission of a completed credit application form.
• On the acceptance by the Supplier of a completed credit application form, Account Customers must pay a deposit of 50% of the Price on placing the Order with the Supplier. The balance is due on invoice from the Supplier to be paid within seven (7) days of the date of issue. Orders will not be processed unless or until the deposit has been paid. Goods will not be dispatched unless or until payment in full has been received by the Supplier.
• Any credit, or credit limit granted by the Supplier may be revised by the Supplier at any time and at its discretion.
• The Supplier reserves the right to withdraw any credit facility upon any breach by the Customer of these terms and conditions or upon the Customer ceasing to trade and/or being subject to any legal proceedings and/or the Customer committing an act of insolvency.
• The Customer agrees that upon such withdrawal, any and all monies owing on the account shall become immediately due and payable.

Account Customer’s Privacy

• The Customer agrees:
  • For the Supplier to obtain from a credit reporting agency a credit report containing personal credit information about the Customer in relation to credit provided by the Supplier.
  • That the Supplier may exchange information about the Customer with those credit providers either named as trade referees by the Customer or named in a consumer credit report issued by a credit reporting agency.
  • The Customer consents to the Supplier being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).

7. DEFAULT
   • In this clause the “default date” is the day after the date by which payment of the Supplier’s invoice(s) was due to be made by the Account Customer to the Supplier and the “outstanding balance” is the price of the order less the deposit paid by the Customer.
   • The Customer will be liable for a dishonoured cheque fee of $40.00 for each cheque issued by the Customer and rejected by the Supplier’s bank.
   • If the Supplier does not receive the outstanding balance by the default date the Customer will be liable for:
     • Interest on the outstanding balance from the default date at the rate of twelve per centum (12%) per annum calculated on a daily basis;
     • An account keeping and storage fee of $35.00 to be charged at the end of each week following the default date until the outstanding balance has been paid;
     • Any debt collection or recovery costs incurred by the Supplier; and if the Supplier’s debt collection agency (“the agency”) charges commission on a contingency basis then the Customer shall pay as a liquidated debt the commission payable by the Supplier to the agency, at the agency’s prevailing rate as if the agency achieved one hundred per cent recovery and the following formula shall apply:

(n.b. in the event where the agency is Prushka Fast Debt Recovery the applicable commission rate for the amount unpaid is as detailed on www.prushka.com.au).

• Any charges reasonably made or claimed by the Supplier’s or the agency’s lawyer for legal costs on the indemnity basis.

8. RISK AND LIABILITY
   • The Customer will ensure that there is sufficient and accurate information or a proof/artwork of sufficient quality to enable the Supplier to execute the Order. Sufficient information includes any special requirements or specifications pertaining to the Order and any special instructions for the storage, packing or delivery of the Goods.
   • The Supplier takes no responsibility and will not be liable for any loss and damage or costs incurred by the Customer as a result of the Goods and/or Services being faulty or not fit for purpose due to insufficient or inaccurate information or a proof of insufficient quality having been provided by the Customer.
   • The Customer must ensure when placing the Order that it has informed itself of the characteristics and suitability of the type of material of the Goods for the Customer’s intended use, including the suitability of the Goods for the Services requested. The Supplier accepts no responsibility for the use and suitability of the Goods, including for the printing of the copy thereon save where a sample has been provided and the Goods supplied differ significantly from that sample.
   • The Customer accepts all risk in relation to the Goods (including all risks associated with unloading or unpacking) when the Goods pass into the Customer’s care or control; or that of its nominated carrier or agent.
   • The Supplier takes no responsibility for representations made in relation to the Goods and Services by any third party or any delay in the delivery of the Goods by a third party carrier nominated by the Customer.
   • The Customer acknowledges that the Supplier shall not be liable for and the Customer releases the Supplier from any loss and damage incurred as a result of delay, or failure to provide the Goods and Services or to observe any of these conditions due to an event of force majeure, being any cause or circumstance beyond the Supplier’s reasonable control.
   • The Customer is responsible for ensuring the copy is compliant with any applicable laws, standards, codes, regulations or rules for advertising to the public and the Advertiser warrants that:
     • The Copy does not constitute a breach of or infringement of any applicable laws, standards, codes, regulations or rules of any government, quasi-government or statutory or regulatory authority, or public or private right of an individual, including (without limitation) any intellectual property right; and
     • It has obtained all necessary permits, licenses and approvals (if any) required for the production, distribution and display of the copy and the copy is not offensive, defamatory or inappropriate to display to the general public.
   • The Customer indemnifies and will keep the Supplier indemnified against:
     • Any breach by the Customer of its warranty as to fitness of any advertising;
     • Any order for payment of monies, fines, costs and expense (including without limitation any legal costs on the indemnity basis) incurred by the Supplier and arising directly or indirectly from or in connection a claim made by:
       • A third party; alleging a breach of that third parties’ private rights, including (without limitation) any intellectual property right, defamation or other civil suit associated with production, distribution or display of the copy in public;
       • A government, quasi-government or statutory or regulatory authority alleging a breach of inter alia any applicable laws, standards, codes, regulations or rules with which the copy must comply.
     • Subject to the Supplier’s warranty for defective Goods, the Supplier’s liability for any loss and damage associated with, arising from or in connection with the supply of the Goods may not exceed the Price of the Order, including but not limited to personal injury and damage to property.

9. WARRANTY
   • The Supplier warrants that the Customer’s rights and remedies in the agreement arising from a warranty against defects are in addition to other rights and remedies under any applicable law in relation to the goods and services to which the warranty relates.
   • The Supplier does not purport to restrict, modify or exclude any liability that cannot be excluded under the Australian Consumer Law contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth) as may be amended from time to time.

              Warranty for Goods and Services

• Provided that the Customer reports any defect in any Goods and Services supplied, preferably within seven (7) days from the date that the defect became apparent, the Supplier will rectify the defect within a reasonable period of time.
• The Supplier provides the following warranty to Customers who are Consumers in respect of Goods supplied:

“Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the Goods repaired or replaced if the Goods fail to be of acceptable quality and the failure does not amount to a major failure.”

• In respect of all claims under warranty, the Supplier reserves it right to inspect Goods and Services alleged to be defective.
• To the extent permitted by law the Supplier’s liability in respect of defective Goods and Services that do not constitute a major failure will be limited to:
  • The resupply by the Supplier of the defective Goods and Services; or
  • The refund of the Price paid by the Customer in respect of the defective Goods and Services.
• The Supplier shall not be liable to compensate the Customer for any reasonable delay in rectifying Goods and Services found to be defective or in assessing the Customer’s claim.
• The Customer warrants that it will use its best endeavours to assist the Supplier with identifying the nature of the defective Goods and Services claim.

Claims made under Warranty

• Claims for warranty should be made in one of the following ways:
  • The Customer must send the claim in writing to the Supplier’s address Level 27, 525 Collins Street, Melbourne VIC 3000.
  • The Customer must email the claim to the Supplier to sales@promotions247.com.au.
  • The Customer must contact the Supplier on the Supplier’s business number 1300 224 748 or (03) 9913 0581.

10. TERMINATION AND CANCELLATION

Cancellation by Supplier

• The Supplier may cancel any Order to which these terms and conditions apply at any time before payment of the Price in full is made by the Customer by giving written notice to the Customer. On giving such notice the Supplier shall repay to the Customer any deposit or sum advanced in respect of the Price. The Supplier shall not be liable for any loss and damage whatsoever arising from such cancellation.
• Without prejudice to the Supplier’s other remedies at law, the Supplier shall be entitled to cancel all or any part of any Order of the Customer which remains unfulfilled and all amounts owing to the Supplier shall, whether or not due for payment, become immediately payable in the event that:
  • Any money payable to the Supplier becomes overdue for payment; or
  • The Customer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
  • A receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.

Cancellation by the Customer

• In the event that the Customer cancels the Order then the Customer shall be liable for any loss and damage suffered by the Supplier; but not exceeding the Price of the Order.
• In the event that an Order is placed by the Customer but the Price (or balance thereof) has not been paid by the Customer on request or the Customer has failed to provide a proof, the Supplier may, by providing notice to the Customer deem the Order to have been cancelled by the Customer. Without prejudice to any other right the Supplier may have, if an Order is deemed to have been cancelled:
  • The Supplier may at its discretion sell or dispose of the Goods ordered by the Customer; and
  • The Supplier will be entitled to charge the Customer its prevailing rates for storage of the Goods on and from the default date until the date the Order has been deemed cancelled.
• The Supplier may retain any deposit or other sum paid in respect of the Price of the Order and offset such sum or deposit in satisfaction or partial satisfaction of any loss and damage suffered by the Supplier as a result of the Customer’s cancellation or deemed cancellation of the Order.

11. ENTIRE AGREEMENT
    • The agreement as defined herein constitutes the whole agreement between the Customer and the Supplier.
    • The agreement is deemed to be made in the State of Victoria and all disputes hereunder shall be determined by the appropriate courts of Victoria.
    • All prior discussions and negotiations are merged within this document and the Supplier expressly waives all prior representations made by it or on its behalf that are in conflict with any clauses in this document in any way.
    • Nothing in these terms and conditions is intended to have the effect of contravening any applicable provisions of the Competition and Consumer Act 2010 (Cth) or the Fair Trading Acts in each of the States and Territories of Australia.