Vendor Terms and Conditions

Terms and Conditions - Suppliers and Decorators

Last Updated 20th March 2020

1              Use of Website

The Supplier, by creating an account on and continuing to use 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 Supplier 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 Supplier after the date of the change.

2              Transactions

2.1          Acknowledgement – orders from Customers

The Supplier, by accepting an order for goods and services from a Customer, acknowledges and agrees that:

(a)           it is expressly contracting with the Customer directly for the purchase of 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 Supplier 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 itself purchase the goods and services nor will it become responsible for the collection, acceptance or paymenf for such goods and services.

2.2          Procedures

(a)           The Supplier must comply with any procedure stipulated by Promopeer for the acceptance of orders for goods and services, and such procedures will be displayed on the Website.

(b)           If the Supplier has any standard trading terms that it would like displayed on the Website as a condition of accepting any orders, then the Supplier must supply those terms to Promopeer.

2.3          Off-Website transactions

(a)           The Supplier must not:

(i)            offer to sell goods or services to a Customer outside of the marketplace on the Website;

(ii)           accept an offer to sell goods or services from a Customer 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 a Customer or other Supplier directly to complete a transaction without utilising the Website.

(b)           The Supplier must immediately notify Promopeer if a Customer (or any other person) using the Website:

(i)            offers to acquire goods or services from the Supplier 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 Supplier breaches the provisions of this clause 2.3, Promopeer may (in its absolute discretion):

(i)            suspend or terminate the Supplier’s account; and/or

(ii)           terminate any incomplete transactions facilitated via the Website.

3              Pricing and payment

(a)           Unless otherwise agreed in writing all sales must be made at the price specified on the Website at the time that an order is placed.

(b)           The Supplier must pay the Service Fee to Promopeer in consideration for using the Website.

(c)           The Service Fee may be listed as exclusive of GST. If the Service Fee is listed as exclusive of GST, in addition to the amount payable for the use of the Website, the Supplier will pay to Promopeer, on demand, the GST payable in respect of the supply of the Website for the Supplier’s use.  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).

(d)           The Supplier hereby appoints Promopeer as its agent for the collection of all payments made by Customers in respect of goods and services supplied by the Supplier via the Website. The Supplier authorises Promopeer to:

(i)            render accounts to Customers on behalf of the Supplier;

(ii)           accept payment of such accounts on behalf of the Supplier; and

(iii)          hold such payments in trust until such time as:

(A)          the Customer has accepted the goods and services supplied by the Supplier; or

(B)          any dispute resolution process between the Customer and Supplier has been concluded.

(e)           Promopeer will account to the Supplier for all monies collected by Promopeer on the Supplier’s behalf, less:

(i)            the Service Fee payable to Promopeer; and/or

(ii)           any amounts refunded to the Customer following the conclusion of any dispute resolution procedure in respect of the supply of goods and services by the Supplier.

(f)            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 the Customer’s obligation to pay for those goods and services.

4              Fulfilment and delivery

4.1          Promopeer Standards

(a)           Promopeer may from time to time and at any time implement policies, standards and guidelines which must be adhered to by Suppliers in the acceptance, fulfilment and delivery of orders to Customers of the Website (Promopeer’s Standards).

(b)           Without limiting the generality of clause 4.1(a), Promopeer’s Standards may stipulate Promopeer’s requirements as to:

(i)            the standard of the service given by the Supplier to Customer’ of the Website;

(ii)           criteria for accepting, producing and dispatching goods or delivering services;

(iii)          timeliness in the delivery of goods and services;

(iv)          the quality of inputs utilised in the delivery of goods and services;

(v)           the Supplier’s response to orders, queries and complaints;

(vi)          the suitability of any delivery and shipping for a certain type of good; and/or

(vii)         any other matter that Promopeer considers necessary from time to time.

(c)           Promopeer may make, cancel, or revise Promopeer’s Standards at any time and notify the Supplier of any changes by posting the revised standards on the Website. Any revision of Promopeer’s Standards will apply to all uses of the Website by the Supplier after the date of the change.

(d)           The Supplier must comply with Promopeer’s Standards in the supply of goods and services to Customers of the Website at all times, and a failure to do so will constitute a breach of a material term of these terms and conditions.

4.2          Delivery arrangements

(a)           Subject to Promopeer’s Standards, the Supplier will be entitled to choose the method of transport of the goods and may subcontract delivery in its absolute discretion.

(b)           Where a:

(i)            dispatch date has been communicated to a Customer, the Supplier must dispatch the goods to the Customer by that date; and

(ii)           delivery date has been communicated to a Customer, the Supplier will use it’s best endeavours to deliver the goods by that date.

(c)           The Supplier must immediately notify Promopeer if it has accepted an order and knows, or becomes aware, that it will not be able to dispatch the goods or perform the services within the time communicated the Customer.

4.3          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 upon acceptance of delivery by the Customer.

(b)           The Supplier will be responsible for 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 the Supplier, whether such goods are used singularly, or in combination with other goods, substances, or any process.

5              Returns, warranty and release

5.1          Supplier responsibility

(a)           The Supplier will be solely responsible for the supply of all goods and services via the Website to a Customer.

(b)           The Supplier warrants to Promopeer that the goods and services that it supplies to Customers of the Website:

(i)            are of an acceptable quality (i.e. they are safe, look acceptable, lasting and do all things that someone would normally expect them to do);

(ii)           match any description displayed on the Website;

(iii)          match any demonstration or sample;

(iv)          are fit for the purpose for which they are intended;

(v)           come with full title and ownership, and not subject to any hidden charges or right to possess the goods;

(vi)          meet any specific promises made by the Supplier to a Customer;

(vii)         are provided with acceptable care, skill and technical knowledge and while taking all necessary steps to avoid loss and damage; and

(viii)        be delivered within a reasonable timeframe.

5.2          No responsibility

(a)           The Supplier acknowledges and agrees that Promopeer is not the seller nor the supplier of the goods and services that the Supplier sells to Customers of the Website, and that the Supplier bears all responsibility for the goods and services that a Customer may acquire via the Website.

(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 the Supplier and, if the goods are not replaced, credit the account of the Customer for their invoice price if:

(i)            the Customer notifies Promopeer that goods are not:

(A)          delivered; or

(B)          of merchantable quality or in line with the warranties given by the Supplier under clause 5.1(b) (defective goods); and

(ii)           after examination by Promopeer, the goods are deemed, in the opinion of Promopeer, to be defective goods.

(d)           If a dispute arises (including as to the quality of the goods), the Supplier acknowledges that Promopeer may refund the Customer in full, and the Supplier must settle any claim with the Customer at a later date. The Supplier hereby releases and forever discharges Promopeer from all Claims or Loss arising out of or in connection with:

(i)            the dispute with the Customer; or

(ii)           Promopeer granting a refund to the Customer.

(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.

5.3          Release

(a)           To the extent permitted by law, the Supplier 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 connected with such dispute,

except to the extent that such dispute arises out of or in connection with Promopeer’s wilful misconduct.

6              Liability

6.1          Exclusions

To the extent permitted by law:

(a)           any advice, recommendation, information or representation provided by Promopeer as to the quality or performance of the Website or its suitability for a particular purpose or otherwise in relation to Website is given in good faith but without any liability or responsibility on the part of Promopeer;

(b)           the Supplier acknowledges that it has not relied upon or been induced by any representation of Promopeer in using the Website or in accepting any order for goods;

(c)           except as specifically set out in these terms and conditions, any term, condition or warranty in respect of the quality, merchantability, fitness for purpose, condition, description, assembly, manufacture, design or performance of the Website, whether implied by statute, common law, trade usage, custom or otherwise, is hereby expressly excluded;

(d)           a refund of the Service Fee payable on a particular transaction 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 between the Supplier and 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 Supplier 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 Supplier where a Customer has failed to accept delivery of any goods or cancels or suspends any order.

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 Supplier 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 use of the Website is not a supply of a service ordinarily acquired for ordinary household or domestic use.

6.3          Limitations

If a non-excludable term, condition, guarantee, or warranty applies to Supplier’s use of 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              Website content and intellectual property rights

7.1          Supplier content

The Supplier 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 Supplier, in any media known now or in the future and for any other purpose.

7.2          Moral rights

If the Supplier is the author of any content that it uploads to the Website, then the Supplier 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 Supplier 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 Supplier might have.

7.3          Third party intellectual property rights

(a)           The Supplier must not utilise the Website in a way which infringes, or may infringe, on the intellectual property rights of any person anywhere in the world.

(b)           The Supplier 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 the Supplier.

(c)           The Supplier hereby indemnifies, and will keep indemnified, Promopeer and any Customer from and against any Claims or Loss suffered or incurred by them arising out of or in connection with the Supplier’s breach of any intellectual property rights of any third party.

8              Default

If the Supplier:

(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 Supplier 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 Supplier 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)           charge the Supplier for, and the Supplier 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, and offset the amount of such Loss against any funds held by Promopeer on behalf of the Supplier;

(i)            cease or suspend for such period as Promopeer thinks fit, the Supplier’s access and use of the Website;

(j)            by notice in writing to the Supplier, terminate:

(i)            the Supplier’s use of the Website

(ii)           any contract between the Customer and any Customer which has not yet been performed;

(k)           require that all money owing by a Customer to the Supplier be paid to Promopeer in lieu of the Supplier; and/or

(l)            sue the Supplier for breach of contract,

without effect on the accrued rights of Promopeer or any Customer under any contract.

9              Privacy

(a)           Promopeer is bound by the Privacy Act 1988 and takes steps to ensure that all personal information obtained in connection with the Supplier will be appropriately collected, stored, used, disclosed and transferred in accordance with the National Privacy Principles. The Supplier can access and read Promopeer’s privacy policy here [link to privacy policy].

(b)           The Supplier must 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 Supplier to any 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 Supplier.

(d)           The information provided to the credit reporting agency may include:

(i)            identity particulars of the Supplier or any of its officers (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 Supplier on the Website;

(iii)          the fact that the Supplier is a user of the Website;

(iv)          details of any payments made or goods supplied by the Supplier;

(v)           information that, in the opinion of Promopeer the Supplier 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 Supplier 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 Supplier;

(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 Supplier for the purposes of:

(A)          assessing whether to extend credit to the Supplier;

(B)          notifying other credit providers of any default by the Supplier;

(C)          exchanging information as to the status of any credit account; or

(D)          to assess general credit worthiness.

10           Additional terms

(a)           The Supplier must read and understand all of Promopeer’s policies and procedures relating to the use of the Website, including Promopeer’s Standards.

(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:

(i)            [insert links to any policies that you implement over time regarding the use of the site. These may change and be added to as your business grows. I’ve added examples in italics, but these don’t all need to be implemented at launch]

(ii)           user privacy policy;

(iii)          website outages;

(iv)          prohibited and restricted uses of the Website;

(v)           rules for listings.

(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.

11           General

11.1        Definitions

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 servant, agent, partner, contractor, employee of that company;

(g)           Service Fee means the amount payable by the Supplier to Promopeer in connection with the use of the Website, as communicated to the Supplier from time to time and for the avoidance of doubt may include:

(i)            a commission on sales;

(ii)           a subscription;

(iii)          any disbursement fees; and/or

(iv)          a combination of the above.

(h)           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;

(i)            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;

(j)            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.

11.2        Interpretation

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.

11.3        Miscellaneous

(a)           The termination of any contract between Promopeer and the Supplier, or the Supplier and any Customer, will not:

(i)            relieve the Supplier 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 Supplier agrees that all contracts made with Promopeer or any Customer will be deemed to be made in the State of Victoria and the Supplier 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 conditions will 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 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)           Other than as expressly set out in these terms and conditions, Promopeer is not the Supplier’s agent for any purpose in relation to these terms and conditions or the Supplier’s use of the Website.