Last updated 20th March 2020
The Customer, by using the Website, agrees to be bound by these terms and conditions, and unless otherwise agreed by Promopeer in writing:
(a) these terms and conditions are current as at the date shown at the top of this document;
(b) Promopeer may revise these terms and conditions and notify the Customer of any changes by posting the revised terms and conditions on the Website; and
(c) any revisions of these terms and conditions will apply to all uses of the Website by the Customer after the date of the change.
2.1 Acknowledgement – orders with Suppliers
The Customer, by ordering goods and services from a Supplier, acknowledges and agrees that:
(a) it is expressly contracting with the Supplier directly for those goods and services and not Promopeer;
(b) Promopeer is the owner and operator of the Website, which is an online marketplace connecting Customers and Suppliers of branded promotional goods, printing and graphic design services;
(c) Promopeer is not involved in the actual transaction between Customers and Suppliers utilising the Website;
(d) when the Customer enters into a transaction, a legally binding contract is created between the Customer and the Supplier, the terms of which include:
(i) any terms set out in these terms and conditions, to the extent that they apply to the transaction between the Customer and Supplier; and
(ii) the Supplier’s standard trading terms and conditions, as stipulated by the Supplier on the Website; and
(e) at no time during the transaction does Promopeer hold, store, dispatch, supply, control or otherwise own or possess the goods, nor does Promopeer supply the services, sold by a Supplier to the Customer.
(a) The Customer must comply with any procedure stipulated by Promopeer or a Supplier for the placing of orders for goods and services, and such procedures will be displayed on the Website.
(b) A Supplier may, at its discretion, accept or refuse any order from the Customer.
(c) A Supplier may require the Customer to order a minimum quantity or value of goods per order.
(a) The Customer must not:
(i) offer to acquire goods or services from a Supplier outside of the marketplace on the Website;
(ii) accept an offer to acquire goods or services from a Supplier outside of the marketplace on the Website;
(iii) engage in any action designed to complete or facilitate a transaction outside of the Website;
(iv) refer to or promote external websites that facilitate the sale of goods or services outside of the Website; or
(v) use the information obtained via the Website to contact another Customer or Supplier directly to complete a transaction without utilising the Website.
(b) The Customer must immediately notify Promopeer if a Supplier (or any other person) using the Website:
(i) offers to sell goods or services to the Customer outside marketplace on the Website;
(ii) engages in any action designed to complete or facilitate a transaction outside of the Website; or
(iii) refers to or promotes external websites that facilitate the sale of goods or services outside of the Website.
(c) Without prejudice to any other rights of Promopeer, if a Customer breaches of the provisions of this clause 2.3, Promopeer may (in its absolute discretion):
(i) suspend or terminate the Customer’s account; and/or
(ii) terminate any incomplete transactions facilitated via the Website.
(a) Unless otherwise agreed in writing, all sales are made at the price specified on the Website at the time that an order is placed.
(b) The price of the goods quoted by a Supplier may be listed as exclusive of GST. If a price is listed as exclusive of GST, in addition to the price payable for the goods, the Customer must pay to the Supplier, on demand, the GST payable in respect of the supply of those goods. For the purposes of these terms and Conditions, “GST” has the same meaning as that word is given in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (as amended).
(c) Unless otherwise agreed in writing all prices are strictly net and the Customer must pay the full purchase price of the goods without deduction, set-off, withholding or counterclaim, as set out on the Supplier’s invoice and within the period set out in that invoice.
(d) The Customer acknowledges that Promopeer is, or may be, authorised to render accounts on behalf of a Supplier and to accept payment of such accounts on the Supplier’s behalf. The rendering of accounts and acceptance of payment by Promopeer:
(i) is on account of Promopeer’s role as the collection agent of the Supplier only, and does not constitute payment to Promopeer for the supply of the Supplier’s goods and services; and
(ii) nothing in Promopeer’s role as collection agent for the Supplier renders Promopeer liable or responsible for the goods and services in any way, including delivery of those goods and services.
4.1 Delivery arrangements
(a) The Customer will be responsible for all costs associated with delivery, including freight, insurance and other charges arising from the point of dispatch of the goods to the Customer to the point of delivery. If goods are deliverable to a location outside of Australia, the Customer will be solely responsible for any and all taxes, charges or customs duties payable on the delivery of the goods.
(b) The Customer will provide reasonable and proper access to the location specified for delivery. A completed driver’s manifest or delivery docket whether signed by the driver or by the Customer or its employee or agent will be proof of delivery of goods. If the delivery location is unattended, delivery will be deemed to have been made in accordance with the Customer’s order by leaving the goods at the location with a delivery docket, at which point the Customer will be deemed to have accepted the goods.
(c) The Supplier will in all cases be entitled to choose the method of transport of the goods and the Customer authorises the Supplier to subcontract delivery in its absolute discretion.
(d) Where a delivery date is specified, the Supplier will endeavour to deliver the goods on the due date. However, the Customer acknowledges that neither the Supplier nor Promopeer can (or will) guarantee that the goods will be delivered by any specified delivery date.
(e) A Supplier may unilaterally delay or suspend any delivery for any period or deliver the goods ordered by instalments.
(f) The Customer shall not be entitled to reject delivery of any goods due to a delay in their delivery or if delivered in instalments.
(g) No purported cancellation or suspension of an order or any part by the Customer is binding on Promopeer or the Supplier after that order has been accepted.
(h) To the extent permitted by law, the Customer must notify Promopeer of any incomplete deliveries within 24 hours of delivery, otherwise the Customer will be deemed to have accepted the order.
4.2 Risk and insurance
(a) The risk in the goods and all insurance responsibility for theft, damage or otherwise in respect of the goods will pass to the Customer immediately on the goods being despatched by a Supplier.
(b) The Customer assumes all risk and liability for loss, damage or injury to persons or to property of the Customer, or third parties arising out of the use or possession of any of the goods sold by a Supplier, whether such goods are used singularly, or in combination with other goods, substances, or any process.
5.1 Supplier responsibility
(a) The supply of all goods and services via the Website to the Customer will be subject to each Supplier’s warranty terms, terms of trade and returns policies and procedures, and the Supplier will bear all responsibility for the supply of those goods and services.
(b) The Customer must, prior to acquiring goods and services from a Supplier via the Website:
(i) review; and
(ii) accept and agree to be bound by,
the Supplier’s warranty terms, terms of trade and returns policies and procedures.
(c) The Customer warrants that, prior to placing any order via the Website, it has been afforded the opportunity to review, consider and accept a Supplier’s warranty terms, terms of trade and returns policies and procedures.
5.2 Customer acknowledgements
(a) The Customer acknowledges and accepts that:
(i) orders for goods may include minor variations in the quantity of goods produced and delivered (i.e. plus or minus 3% of the quantity ordered), and that such minor variations fall within the standard deviation for the delivery of products of the nature supplied by Suppliers;
(ii) goods supplied by a Supplier are mass produced, and as such minor variations in the size and colour of the goods may be apparent between different batches of the same good;
(iii) branded goods may require manual application of the Customer’s content on a product, and such manual actions will involve minor variations in the positioning of such content;
(iv) images displayed on the Website are only indicative of the final product and are to be relied upon as a guide only. Colours viewed on a screen or displayed on the Website may vary from the colour on a physical product;
(v) it may not be possible to print the exact colour that the Customer has requested (whether such colour is specified using RGB, CMYK or PMS colour profile). Suppliers will use their best endeavours to match a requested colour, but goods ordered may display minor differences from the colours a Customer has submitted or expected;
(vi) neither Promopeer nor any Suppliers accept any responsibility or liability for any errors in the artwork which has been approved by the Customer. The Customer must review and approve any artwork prior to finalising any order; and
(vii) small fonts and fine details printed on custom goods may be illegible. If the Customer requires small print and fine details to be printed, the Customer must inform the Supplier prior to placing and order.
(b) The Customer must not make any Claim against Promopeer or any Supplier in connection with any of the matters set out in clause 5.1(a), and hereby indemnifies Promopeer from and against any Loss arising out of or in connection with such a Claim.
5.3 No responsibility
(a) The Customer acknowledges and agrees that Promopeer is not the seller nor the supplier of the goods and services, and that the Supplier bears all responsibility for the goods and services that the Customer may acquire via the Website. To the extent permitted by law, Promopeer gives no warranty whatsoever in respect of the goods or services, including as to defects in material and workmanship.
(b) Any and all disputes arising out of or in connection with the supply of goods and services via the Website (including disputes as to the quality of goods) will be disputes between the Customer and the Supplier.
(c) Promopeer may, in its discretion facilitate the replacement or return (if applicable) of goods or services supplied by a Supplier and, if the goods are not replaced, credit the account of the Customer for amount paid if:
(i) the Customer notifies Promopeer within 24 hours of delivery if goods supplied were not those it had ordered or are not of merchantable quality or not fit for the purpose required (defective goods); and
(ii) after examination by Promopeer, the goods are deemed to be defective goods,
otherwise the Customer will be deemed to have accepted the order. However, if Promopeer reasonably considers that goods returned by the Customer are not defective goods, the Customer must pay for their return to the Customer.
(d) If a dispute arises (including as to the quality of the goods), the Customer must accept and pay for the goods in full and settle any claim with the Supplier at a later date.
(e) Despite this clause, if the Customer rejects the goods then the Supplier will be able to sell such goods without prejudice to any claim that Supplier may have against the Customer for damages or any other rights or remedies of the Supplier.
(a) To the extent permitted by law, the Customer releases and forever discharges, Promopeer from all Claims, and indemnifies Promopeer from any Loss, arising out of or in connection with:
(i) a dispute between the Customer and a Supplier in relation to the supply of goods and Services (including a dispute as to the quality of the goods and services);
(ii) the use of the Website; or
(iii) any other matter or thing which is in any way connect with such dispute,
except to the extent that such dispute arises out of or in connection with Promopeer’s wilful misconduct.
To the extent permitted by law:
(a) any advice, recommendation, information or representation provided by Promopeer as to the quality or performance of the goods or their suitability for a particular purpose or otherwise in relation to the goods is given in good faith but without any liability or responsibility on the part of Promopeer;
(b) the Customer acknowledges that it has not relied upon or been induced by any representation of Promopeer in using the Website or in placing any order for goods;
(c) except as specifically set out in these terms and conditions, or contained in any warranty or statement provided with the goods, any term, condition or warranty in respect of the quality, merchantability, fitness for purpose, condition, description, assembly, manufacture, design or performance of the goods, whether implied by statute, common law, trade usage, custom or otherwise, is hereby expressly excluded;
(d) procuring the replacement or repair of the goods (which is the responsibility of the Supplier) is the absolute limit of Promopeer’s liability howsoever or wheresoever arising under or in connection with the sale, use of, storage or any other dealings with the goods by the Customer or any third party;
(e) Promopeer is not liable for any indirect, consequential, special, economic or punitive losses or expenses suffered by the Customer or any third party, howsoever caused, including loss of turnover, profits, business or goodwill or any liability to any other party;
(f) Promopeer will not be liable for any loss or damage suffered by the Customer where a Supplier has failed to meet any delivery date or cancels or suspends the supply of goods.
6.2 Subject to Law
(a) Nothing in these terms and conditions is to be interpreted as excluding, restricting or modifying or having the effect of excluding, restricting or modifying the application of any laws applicable to the sale of goods which cannot be excluded, restricted or modified.
(b) The Customer acknowledges that the Website is a marketplace for the supply of goods and services by a business to another business (i.e. a B2B marketplace) and that the goods and services supplied by Suppliers utilising the Website are not goods ordinarily acquired for ordinary household or domestic use.
If a non-excludable term, condition, guarantee, or warranty applies to the supply of goods or services utilising the Website by operation of law (including the Australian Consumer Law), then to the maximum extent permitted by law the liability of Promopeer for breach of such term, condition, guarantee or warranty will be limited to (at Promopeer’s election):
(a) in the case of goods:
(i) replacement of the goods or the supply of equivalent goods;
(ii) the cost of replacing the goods or acquiring equivalent goods;
(iii) the repair of the goods; or
(iv) the cost of having the goods repaired; and
(b) in the case of services:
(i) supplying the services again; or
(ii) payment of the cost of having the services supplied again.
7.1 Customer content
The Customer hereby grants Promopeer a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right to exercise any and all intellectual property rights (including copyright and trademark rights) in any content uploaded to the Website by the Customer, in any media known now or in the future and for any other purpose.
7.2 Moral rights
If the Customer is the author of any content that it uploads to the Website, then the Customer also irrevocably and unconditionally consents, to the maximum extent permitted by law (either present or future), to Promopeer and its licensees, contractors, assignees and successors, and their licensees and any other person authorised by any of them:
(a) disclosing, reproducing, copying, adapting, publishing, performing, exhibiting, communicating, renting, transmitting or otherwise using the content (and any adaptation or part of the content) anywhere in the world:
(i) in whatever form and in whatever circumstances Promopeer thinks fit, including adding to or otherwise altering the content (or any adaptation or part of the content); and
(ii) without making any identification of the Customer as the author in relation to the content (or any adaptation or part of the content); and
(b) doing anything or omitting to do anything in relation to the content (or any adaptation or part of the content) anywhere in the world that would otherwise infringe the moral rights, or any similar non-assignable, personal rights, that the Customer might have.
7.3 Third party intellectual property rights
(a) The Customer must not utilise the Website, or order and goods or services from Suppliers, in a way which infringes, or may infringe, on the intellectual property rights of any person anywhere in the world.
(b) The Customer warrants to Promopeer that it owns (or has the legal right to use) all content, images, logos, trademarks and/or such other branded material which may form part of the goods or services supplied by Promopeer or a Supplier.
(c) The Customer hereby indemnifies, and will keep indemnified, Promopeer and any Supplier from and against any Claims or Loss suffered or incurred by them arising out of or in connection with the Customer’s use of the Website in a way which infringes on the intellectual property rights of any third party.
If the Customer:
(a) fails to make any payment in accordance with these terms and conditions by the date it falls due;
(b) fails to comply with any of these terms and conditions;
(c) being an individual, becomes bankrupt, dies or becomes mentally or physically incapable of managing their affairs;
(d) being a corporation, passes a resolution for winding up or liquidation or enters into any composition or arrangement with creditors or if a receiver including a provisional receiver, or receiver and manager, trustee or administrator is appointed for any property or assets or becomes liable to be wound up by reason of insolvency or if any petition is presented for its winding up;
(e) has execution levied against it; or
(f) ceases or threatens to cease carrying on a business,
then the Customer will be in default under these terms and conditions and Promopeer may, without prejudice to any other remedy available to it under these terms and conditions or in law or equity do one or more of the following:
(g) charge the Customer interest on any sum due at the prevailing rate pursuant to the Penalty Interest Rates Act 1983 (Vic), calculated daily, for the period from the due date until the date of payment in full;
(h) immediately recover possession of any goods not paid for in full (and the Customer authorises, or will procure relevant authority for, Promopeer or its agents;
(i) charge the Customer for, and the Customer must indemnify Promopeer from, all Loss (including without limitation all legal costs and disbursements on an indemnity basis) incurred by it resulting from the default or in taking action to enforce compliance with these terms and conditions or to recover any goods;
(j) cease or suspend for such period as Promopeer thinks fit, the Customer’s access and use of the Website;
(k) by notice in writing to the Customer, terminate:
(i) the Customer’s use of the Website
(ii) any contract between the Customer and any Supplier which has not yet been performed;
(l) require that all money owing by the Customer to any Supplier, regardless of the due date, become immediately due and payable; and/or
(m) sue the Customer for breach of contract,
without effect on the accrued rights of Promopeer or any Supplier under any contract.
(b) Promopeer requires that the Customer comply with the National Privacy Principles in connection with any personal information that comes into its possession via the Website.
(c) Promopeer may give information about the Customer to any Supplier, a credit reporting agency, for the following purposes:
(i) supplying goods and services;
(ii) to obtain a consumer credit report; and/or,
(iii) to allow the credit reporting agency to maintain a credit information file containing information about the Customer.
(d) The information provided to the credit reporting agency may include:
(i) identity particulars of the Customer (e.g. name, sex address and the previous two addresses, date of birth, name of employer, and drivers’ license number);
(ii) these terms and conditions the trading history of the Customer on the Website;
(iii) the fact that the Customer is a user of the Website;
(iv) details of any payments made by the Customer;
(v) information that, in the opinion of Promopeer the Customer has committed a serious credit infringement (that is, fraudulently or shown an intention not to comply with its contractual obligations); and/or
(vi) details of dishonoured cheques or payments.
(e) The Customer hereby acknowledges and agrees that Promopeer:
(i) has informed it that it may give certain personal information about it to a credit reporting agency;
(ii) may obtain information about it from a business which provides information about commercial credit worthiness of persons for the purpose of assessing any credit advanced to the Customer;
(iii) may obtain a credit report containing information about it from a credit reporting agency;
(iv) may exchange information with any credit reporting agency, or any credit provider named in a credit report relating to the Customer for the purposes of:
(A) assessing whether to extend credit to the Customer;
(B) notifying other credit providers of any default by the Customer;
(C) exchanging information as to the status of any credit account; or
(D) to assess general credit worthiness.
(a) The Customer must read and understand all of Promopeer’s policies and procedures relating to the use of the Website.
(b) Any policies and procedures implemented by Promopeer in connection with the use of the Website form part of these terms and conditions and provide additional terms related to specific uses of the Website, including but not limited to:
(c) Promopeer may add, vary, update and/or revoke any of it’s policies from time to time and at any time. Variations to Promopeer’s policies will be effective as and from the date that they are posted on the Website.
In these terms and conditions:
(a) Claim includes a claim, notice, demand, action, proceeding, litigation, prosecution, dispute, order, declaration, inquiry, arbitration, investigation, judgment, award, damage, loss, cost, expense or liability however arising, whether present, unascertained, immediate, future or contingent, whether based in contract, tort or statute and whether involving a third party or a party to these terms and conditions or otherwise;
(b) content means any words, images, logos, registered or unregistered trademarks, any other intellectual property rights of whatsoever kind and wheresoever situate;
(c) Customer means any person who uses the Website for the purchase of goods and services from Suppliers and, where applicable, includes any servant, agent, partner, contractor, employee of that person;
(d) goods means all goods supplied by a Supplier to a Customer;
(e) Loss means all damage, loss, cost and expense (including legal costs and expenses of whatsoever nature or description);
(f) Promopeer means Promopeer Group Pty Ltd ACN 633 091 997 and its related entities and where applicable, includes any any servant, agent, partner, contractor, employee of that company;
(g) services means the following, as the context requires:
(i) the Website and online marketplace services supplied by Promopeer to Customers and Suppliers; or
(ii) any services supplied by a Supplier to a Customer;
(h) Supplier means any person who uses the Website to advertise and sell goods and services to Customers, and where applicable, includes any servant, agent, partner, contractor, employee of that person;
(i) Website means any of Promopeer's websites, including but not limited to promopeer.com, and any related websites, sub-domains and pages, and any of Promopeer’s social media pages/accounts.
In these terms and conditions:
(a) words importing the singular include the plural and vice versa;
(b) words importing any gender include all other genders;
(c) words importing persons include corporations, all bodies and associations corporate or unincorporate and vice versa and their heirs, successors, permitted assigns and transferees;
(d) any agreement, warranty, representation, obligation or liability which binds or benefits 2 or more persons under these terms and conditions binds or benefits those persons jointly and severally;
(e) any reference to a statute or statutory provision includes any statutory provision which:
(i) amends, extends, consolidates or replaces; or
(ii) has been amended, extended, consolidated or replaced by,
that statute or statutory provision and any other orders, regulations, instruments or other subordinate legislation made under that statute or statutory provision;
(f) headings are included for convenience only and will not affect the interpretation and construction of these terms and conditions;
(g) all references to dates and times are to times in Melbourne, Victoria;
(h) any reference to “includes” or “including” means “includes without limitation” or “including without limitation” respectively.
(a) The termination of any contract between Promopeer and the Customer, or any Supplier and the Customer, will not:
(i) relieve the Customer of their obligations to pay any money due under these terms and conditions; or
(ii) affect any provision contained in these terms and conditions which expressly or by implication is to become operative or continue to operate after the contract is terminated.
(b) The Customer agrees that all contracts made with Promopeer or any Supplier will be deemed to be made in the State of Victoria and the Customer agrees to submit to the jurisdiction of appropriate courts and tribunals in that State.
(c) The provisions of these terms and conditions will be separate and severable from each other to the extent that if any provision or provisions are unenforceable they will be read down so as to be enforceable or, if it cannot be so read down, they will be severed from these terms and conditions without affecting the enforceability of the remaining terms.
(d) Failure by Promopeer to enforce any of these terms and conditionswill not be construed as a waiver of any of Promopeer’s rights.
(e) All notices, requests, consents, approvals, reports, offers or other communications (Communications) given under these terms and conditions must be in writing and:
(i) delivered personally, by prepaid post, email or facsimile transmission to the party’s last known street or postal address, email address or facsimile number; and
(ii) will be considered to have been received if:
(A) delivered personally, on delivery;
(B) sent by prepaid post, on posting, notwithstanding that it may subsequently be returned through the Post Office unclaimed;
(C) sent by facsimile transmission, on production of a transmission control report indicating transmission without error; or
(D) sent by email, on receipt by the sender of confirmation on its computer that the message has been delivered.
(f) No agent, employee or representative of Promopeer (or any Supplier) will have any authority whatsoever to bind Promopeer to any affirmation, representation, warranty or condition concerning the use of the Website unless such affirmation, representation, warranty or condition is specifically included in writing within these terms and conditions.
(g) Promopeer is not the Customer’s agent for any purpose in relation to these terms and conditions or the Customer’s use of the Website.