1. Basis of Agreement
1.1 These Terms apply to every contract for the sale of goods or services by Us to You, unless We agree otherwise in writing.
1.2 The descriptions, illustrations and performance specifications of goods or services in a quotation, catalogues, prices in a price list and other advertising material do not form part of this Agreement.
1.3 Any written quotation provided by Us to You concerning the proposed supply of goods or services is:
(a) valid for 60 days;
(b) subject to You offering to enter into an Agreement and accepting these Terms;
1.4 The Agreement is entered into when:
(a) You request Us, whether verbally, in writing or by any other means, to commence any work for You or on behalf of another individual or business, or
(b) We provide You with any goods or services.
1.5 We may vary or amend these Terms by notice in writing to You or if stated in our quote. Any variations or amendments will apply to orders made by You after the date of notice.
2.1 Prices quoted, whether in a price list, by written quotation or verbally, for the supply of goods and services, include GST and any other taxes or duties imposed on or in relation to the goods and services. The Customer must pay any GST and any other taxes or duties imposed on the goods and services.
2.2 If You request any variation to an Agreement, We may increase the price to account for the variation.
2.3 Where there is any change in the costs incurred by Us in relation to the goods or services, We may vary our price for the goods or services in order to take account of any such change, by notifying You.
3.1 Subject to clause 3.2 and unless otherwise agreed in writing, payment for any goods or services must be made within 14 days from the date from which our invoice is raised.
3.2 We reserve the right to require payment in full on, or prior to the delivery of the goods or completion of the services.
3.3 Payment by cheque is not deemed made until the proceeds of the cheque have cleared.
3.4 We may amend any payment terms upon giving written or verbal notice to You.
3.5 We retain complete ownership of all goods and Intellectual Property relating to any order, until complete payment has received by You.
4. Payment Default
4.1 If You default in payment by the due date of any amount payable to Us then all money which would become payable by You to Us at a later date on any account, becomes immediately due and payable without the requirement of any notice to You, and We may, without prejudice to any other remedy available to us:
(a) charge You interest on any sum due at the prevailing rate pursuant to the Penalty Interest Rates Act 1983 (Vic) plus 4 per cent for the period from the due date until the date of payment in full;
(b) charge You for, and You must indemnify Us from, all costs and expenses (including without limitation all legal costs and expenses) incurred by Us resulting from the default or in taking action to enforce compliance with the Terms or to recover any goods;
(c) cease or suspend for such period as We think fit, supply of any further goods or services to You;
(d) by notice in writing to You, terminate any contract with You so far as unperformed by Us; without effect on any of our accrued rights under any contract.
4.2 We may, at our option, also rely on Clauses 4.1(c) and (d) where You:
(e) are an individual and become bankrupt or enter into any scheme of arrangement or any assignment or composition with or for the benefit of your creditors or any class of your creditors generally; or
(f) are a corporation and, You enter into any scheme of arrangement or any assignment or composition with or for the benefit of your creditors or any class of your creditors generally, or have a liquidator, provisional liquidator, administrator, receiver or receiver and manager appointed, or any action is taken for, or with the view to, the liquidation (including provisional liquidation), winding up or dissolution without winding up.
5. Performance of Agreement
5.1 Any period or date for delivery of goods or provision of services communicated to you by any means is intended as an estimate only and is not a contractual commitment. We will use our reasonable endeavours to meet any estimated dates for delivery of the goods or completion of the services but will not be liable for any loss or damage suffered by You or any third party for failure to meet any estimated date.
6. Returns and Exchanges
6.1 We will not be liable for any defects, shortages, damage or non-compliance with the specifications in the Agreement unless You notify Us in writing with full details within 7 business days of delivery of the goods or provision of the services.
6.2 If You do not give the notice as required in clause 6.1, You are deemed to have accepted the goods or services.
6.3 When any defects, shortages, claim for damage or non-compliance with the Agreement specifications is accepted We may, at our option, replace the defective or missing goods or re-provide services.
6.4 We will not accept goods for return that:
(a) have been altered in any way; or
(b) have been used.
7. Intellectual Property
7.1 You acknowledge that You have no proprietary right or interest in Our Intellectual Property. You must not at any time create, sell, manufacture or process any goods using or taking advantage of the Intellectual Property.
7.2 Any Intellectual Property provided to You by Us in connection with the goods and services remains our exclusive property and must be returned to Us on demand and must not be copied or communicated to any third party without Our express written consent.
7.3 You warrant that, where You provide intellectual property ("Client IP") for use by Us to fulfil any order, that You own the copyright in, or have licence to authorise the reproduction of, all artistic and literary works and specifically authorise Us to use the intellectual property for that purpose.
7.4 You license Us to use the Client IP in our own promotional materials to depict the quality and range of our goods and services.
7.5 You indemnify and agree to keep Us indemnified against all liability, losses or expenses incurred by Us in relation to, or in any way directly or indirectly connected with any breach of any intellectual property rights in relation to any Client IP.
8. Ownership of Copyright
8.1 Ownership of copyright in the Copyright Material will remain vested in Us.
8.2 Where by virtue of the Copyright Act 1968, or other Act of any Federal or State Parliament copyright in the Copyright Material would vest in You, You hereby assign such copyright to Us.
9. Artwork and Orders
9.1 All artwork provided must be able to meet our file specifications. We will not be liable for any errors which occur in the electronic transfer of any artwork.
9.2 Whether provided by Us or You, You must carefully review and approve all proofs or layouts before submitting or providing approval for us to print or publish Your order, to ensure the order is free of errors (eg, spelling mistakes, incorrect colours, etc) and meets your expectations. If, for whatever reason the order contains any type of errors and We proceed to arrange printing or publishing to any medium You accept responsibility of any alterations or subsequent changes required to make the order suitable, which will be arranged by Us at your cost.
9.3 In regards to printed products, although we will use our best endeavours to ensure that requested colours are matched we do not guarantee an exact match in colour or texture between your artwork (including electronic graphic file or previously printed material) or any other materials supplied by You. While we do have quality control processes in place You acknowledge and accept that there are acceptable levels of colour variation (+/- 5%) from print run to print run, from stock to stock, from back to front and between different printing processes.
9.4 Trimming may vary by up to 2 millimetres from the proof, specification or print job to print job.
10.1 Except as specifically set out herein, or contained in any warranty statement provided with the goods or services, any term, condition or warranty in respect of the quality, merchantability, fitness for purpose, condition, description, assembly, manufacture, design or performance of the goods or services, whether implied by statute, common law, trade usage, custom or otherwise, is hereby expressly excluded.
10.2 Replacement of the goods or resupply of the services is the absolute limit of our liability howsoever arising under or in connection with the sale, use of, storage or any other dealings with the goods or services by You or any third party.
10.3 We are not liable for any indirect or consequential losses or expenses suffered by You or any third party, howsoever caused, including but not limited to loss of turnover, profits, business or goodwill or any liability to any other party.
10.4 We will not be liable for any loss or damage suffered by You where We have failed to deliver goods or services or fails to meet any delivery date or cancels or suspends the supply of goods or services, or suspends or cancels the Copyright Licence.
10.5 Nothing in the Terms is to be interpreted as excluding, restricting or modifying or having the effect of excluding, restricting or modifying the application of any State or Federal legislation applicable to the sale of goods or supply of services which cannot be excluded, restricted or modified.
10.6 We will not accept any responsibility for any outcome arising from the use of any third party suppliers you engage (such as website hosting providers, distribution companies, printers etc.) regardless of whether we have dealings with them on your behalf.
11.1 The law of Victoria from time to time governs the Terms and the parties agree to the non-exclusive jurisdiction of the courts of Victoria, the Federal Court of Australia, and of courts entitled to hear appeals from those Courts.
11.2 Failure by Us to enforce any of these Terms shall not be construed as a waiver of any of our rights.
11.3 If any of the Terms are unenforceable it shall be read down so as to be enforceable or, if it cannot be so read down, the term shall be severed from these Terms without affecting the enforceability of the remaining terms.
11.4 A notice must be in writing and handed personally or sent by facsimile or prepaid mail to the last known address of the addressee. Notices sent by pre-paid post are deemed to be received upon posting. Notices sent by facsimile are deemed received on the facsimile machine confirming transmission
12.1 We are bound by the Privacy Act 1988 and take steps to ensure that all personal information obtained in connection with You will be appropriately collected, stored, used, disclosed and transferred in accordance with the National Privacy Principles. Such information may be accessed by request to Us in accordance with the Privacy Act.
12.2 We require that You comply with the National Privacy Principles in connection with any personal information supplied to You by Us in connection with this Agreement.
13.1 In these Terms:
"Agreement" means any agreement or contract entered into for the provision of goods or services by Us to You;
“GST” means the Goods and Services tax as defined in A New Tax System (Goods and Services Tax) Act 1999 as amended;
"Copyright Licence" means the licence to use the Copyright Material granted by Us to You;
"Copyright Material’ means any copyright work produced by Blue Penguin Design in the provision of the goods or services;
"Goods" means any goods provided to You by Us or procured by Us for You and includes without limitation printing proofs (both conceptual and final), printed stationery, business cards, brochures, and any other printed material or artwork;
“Intellectual Property” means all copyright, trade marks, designs, specifications, confidential information, (whether registrable or not) owned or licensed by Us in respect of the goods and services; and
"Services" means the provision by Us to You of any services including without limitation, graphic design, printing;
"Terms" means these Terms and Conditions;
'We", "Us", "Our" means Blue Penguin Design (ABN 72 266 755 710) PO Box 1278 Epping VIC 3076; and
"You", "Your" means a person, firm or corporation, jointly and severally if there is more than one obtaining the goods and services from Us.