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Terms and Conditions

ABOUT THE WEBSITE

Thank you for visiting Promosphere’s website.  This website (‘Site’) is operated by Promosphere Pty Ltd (ABN 72 621 586 810) (‘Promosphere’).

Our Site provides you with an opportunity to browse and purchase various products ('Products') that have been listed for sale through the Site. Your access to and use of our Site is governed by these terms and conditions (‘Terms’).

These Terms apply to any order (‘Order’) for Products placed by you (‘Customer’). In these Terms, “you” refers to the Customer.

Please read the Terms carefully as they govern your access to and use of our Site as a Customer.

By using the Site, you agree that you are bound by these Terms. If you do not agree with the Terms, you must refrain from the using the Site.

These Terms may be updated by us at any time, and by continuing to use the Site, Customer accepts the Terms as they apply from time to time.

 

WHO MAY PURCHASE PROMOSPHERE’S PRODUCTS

As a condition of access to our Products, you warrant that you are a person authorised to enter into a legally binding contract and all relevant consents have been obtained to purchase and use our Products.

When you process an Order with Promosphere, you are entering into a legal agreement between you, as a single entity, the company or organisation you represent, and Promosphere.

 

ACCURACY IN ORDERS

You are solely responsible for the accuracy of the information that you submit in relation to each Order for the Products. You agree that we do not control, verify or endorse that information.

Please take great care when ordering Products that you pay attention to the Products that you order when selecting details such as the correct size, quantity and branding.

It is your sole responsibility as to selection of design and materials and suggestions that are made by Promosphere shall not in any manner diminish your responsibility and liability for the selection of the materials and design that you select.

You agree and acknowledge while all effort is made to match PMS colours it is not always possible to match PMS colours exactly due to differing branding processes, techniques and type of Product material. 

 

CUSTOMER’S ACCEPTANCE OF ORDER

Your Order constitutes acceptance of our Terms. You are taken to have accepted an Order when you process an Order or notify Promosphere that you accept the Order electronically or in writing.

Any member of your staff (temporary, permanent, contracted) may accept an Order on your behalf and you will be bound by that Order.  

Each Order forms part of these Terms and these Terms apply in all respects to the Order which together with these Terms will form a binding agreement between you and us.

 

CUSTOMER’S VARIATION OR CANCELLATION OF ORDER

By accepting an Order, Promosphere will start the production and supply process for your Products and will incur costs and charges. Promosphere therefore has the sole discretion to accept or reject any cancellation or variation to an Order after the Order has been accepted by you. 

Any request for cancellation or variation of an Order accepted by you, in whatever form (including requests for additional Products) must be made in writing to Promosphere. A request for cancellation or variation must be agreed to in writing by Promosphere who reserves the right in its sole discretion to agree to or reject a cancellation or variation request from you.

Promosphere reserves the right to vary the Order to include any reasonable additional charge for any extra Product costs incurred or additional services carried out due to the cancellation or variation. If a job is cancelled or varied after acceptance of an Order, and the artwork proof has been received, you accept full responsibility for all costs incurred by Promosphere including but not limited to our time, sampling costs, stock movement, re-stocking charges, packing, freight, artwork, design, bank fees and any other administration charges. The total amount of the variation or cancellation charge is at the sole discretion of Promosphere.

A revised Order issued by Promosphere in respect of the requested variations must be accepted in writing by Customer and through Customer’s written acknowledgement, supersedes the original Order. Any extra charges or costs incurred as a result of the Order cancellation or variation will be the responsibility of the Customer and Customer will be invoiced accordingly. Promosphere has an automatic extension of time to deliver the Products equal to the delay caused by the cancellation or variation which must be agreed to by you and us in writing.

 

QUOTATIONS

All prices set out in our quotes (‘Quotes’) are valid for 14 days. Quotes for our USB Products are valid for 48 hours.

We source some of our Products overseas and because exchange rates can significantly impact our costs, we reserve the right to adjust our prices on the basis of current exchange rates. We reserve the right to reject an Order due to exchange rate fluctuations.

Prices quoted are subject to seeing final artwork. Quotes are based on full artwork being supplied in the correct format, or additional artwork preparation costs will apply. All artwork must be supplied in Vector format as EPS, AI or PDF, with all text converted to outlines. PMS colours must be supplied by the Customer. Where a Customer does not provide PMS Colours, Promosphere will not be held responsible or liable for the final print/branding colour.

If required, additional artwork preparation will be invoiced as below:

1. $20 +gst for basic logo re-draws (per logo)

2. $45 +gst for advanced logo re-draws (per logo)

Every effort is made to quote accurately, and quotes are provided based on the information communicated at the time of quote. We reserve the right to review/change estimates on receipt of artwork, and we reserve the right to review prices quoted at the time of Order.

Promosphere is not liable for misquotes, typos, miscalculations, computer, and human error.

All prices are confirmed with your Order confirmation.

 

PRE-PRODUCTION SAMPLE(S) 

You may request from Promosphere pre-production samples (‘Pre-production Samples’) prior to placing an Order for our Products. If a Pre-product Sample is required, additional charges will apply. Promosphere reserves the right to supply you with Pre-production Samples which will be conditional upon: 

  1.    you agree to pay our fees to provide you with the Pre-production Samples;
  2.    any time constraints; and
  3.    if the manufacturing process allows the manufacture or supply of Pre-production Samples.

You must approve Pre-Production samples within 24 hours of receipt and within 4 hours for urgent jobs.

You agree that further variations made to Products after a Pre-production Sample is supplied, will incur additional costs and delivery delays.

 

PRODUCTS DELIVERED WITHOUT SAMPLES or PRE-PRODUCTION SAMPLE(S)

We strongly encourage the Order of Pre-production samples where available for your review or purchase prior to Order placement. If you do not review or Order Pre-production Samples, then you agree to accept full responsibility for the selection of the Products in your Order placement without claim.

If you do not provide adequate lead-time where physical Pre-production Samples are usually supplied for your Order, then you accept the delivered Products without claim.

 

PRODUCT SPECIFICATION

Promosphere reserves the right to discontinue and to modify at any time its Products range including the Products in its product catalogue or advertised on its Site as well as any changes to its Product designs or specifications.

 

PAYMENT TERMS

For new Customers, your first four (4) Orders will be invoiced for pre-payment until payment terms are established. 

For account Customers, unless otherwise stated, Promosphere require fifty percent (50%) deposit to be paid at the time of placement of the Order. The balance will be invoiced upon delivery, with payment required within seven (7) days. 

Promosphere will accept payment via the following methods:

  •   EFT (Bank Transfer)
  •   PayPal - fee of 2.6% plus $0.30
  •   Credit Card - fee of 1.75% plus $0.30 (Australian credit cards only)

If you fail to comply with our payment terms, Promosphere reserves the right to withhold further deliveries or, at its option, terminate the Order and any unpaid amount will then become immediately due. If Promosphere’s invoice remains unpaid for 30 days after the date of the invoice, Customer will be considered in breach of these Terms. Customer agrees to reimburse Promosphere for any legal or collection expenses, if these are sustained by Promosphere in taking recovery action to payments due and owing and remaining unpaid under these Terms.   

Promosphere reserves the right in its sole discretion to review and amend its payment arrangements under these Terms.

 

PRODUCTION OVER RUNS & UNDER RUNS
Promosphere will always aim to deliver the quantity in an Order. Due to some manufacturing processes or quality control procures, this will not always be possible. Promosphere therefore reserves the right to deliver and invoice +/- 5% of the quantity ordered. Plastic bags have an over / under run of +/- 10%. It is your responsibility to advise Promosphere if the quantity required is critical to the Order before accepting an Order. Promosphere disclaims any responsibility for shortfalls in the quantity of an Order due to circumstances outside of its control including for Force Majeure.  

 

LEAD TIMES / DELIVERY DATES
Any approval delays or payment delays by you will affect the delivery date and Promosphere cannot be held liable for any delays caused by your acts, omissions or delays.

You must promptly provide the information and documentation that Promosphere requires for completion of its obligations under these Terms and ensure that your staff fully co-operate with Promosphere to support and facilitate the timely and efficient completion of any Orders under these Terms.

It is your responsibility to promptly attend to the approval of:

1. Order confirmation(s) 

2. artwork(s) 

3. samples (where required), and

4. the payment of invoices due and owing.

The Order confirmation delivery date is an estimated delivery date to the Customer. It is the Customer’s responsibility to advise Promosphere of critical delivery dates prior to accepting an Order.

 

SHIPPING

Promosphere will make best efforts to ship your Products to the nominated destinations in the most economical way available given the specified delivery dates for your Order.

Promosphere will not be held responsible for any unforeseen delays affecting the delivery of Products over which we have no direct control. For example, Promosphere disclaims any liability for Products lost or delayed by common carrier, international or Australian Customs delays, strikes, industrial action, natural disasters, 'acts of God', mis-redirected freight, loss of individual cartons etc.

Shipping costs are included in our final Quote. Shipping is estimated at the time of quoting and may vary once the Order is accepted.

Any additional costs that may occur due to freight re-direction instructions, after the shipment has been collected, under any circumstance (including delayed shipments) are the full responsibility of the Customer and for which Promosphere will not be liable.

 

CLAIMS AND RETURNS

For the supply of Products within Australia, returns and refunds will be processed in accordance with the Australian Consumer Law.

It is your responsibility to inspect the Products on delivery. Should your Products be defective upon receipt (including as to quantity or quality), any claims made by you must be made in writing to us. You must contact us within seven (7) days of delivery to report any discrepancies or faults to make a claim.

You are responsible for returning the Products to Promosphere. Defective products will only be accepted for credit within 14 calendar days of the date of delivery and must be accompanied by your invoice, your Order details and a reason for the return so that we can identify the transaction and assess the legitimacy of the fault.

Promosphere will process returns for defective or faulty Products or where the Product substantially does not match the Pre-production Sample. Except as otherwise required by law, no returns will be processed for Products where a Pre-Production Sample has not been purchased or reviewed prior to the Order and matching of the Product to the Order is a subjective assessment as to colour, design and materials.

You acknowledge and agree that reasonable variations from Product to Product will occur. For example:

  •     material colours may vary slightly between batches, and
  •     print colours and branding positions may vary slightly from product to product.

While every effort is made to match PMS colours, it is not always possible to match PMS colours exactly, as branding processes and techniques differ, and Product materials differ from product to product.

You agree that for digital printing, including by heat transfer or by dye sublimation, that PMS colours cannot be exactly matched.

Products must not be returned to us without our prior written approval. It is your responsibility to contact us before returning Products to Promosphere which are at your cost. Returned Products must be accompanied by your Invoice and Order details. You acknowledge and agree that you are liable for any postage and shipping costs associated with any refund pursuant to this clause.

Promosphere reserves the right to re-supply Products that are defective.

Products that are embellished by you in any manner, screen printed, embroidered, label changed etc. cannot be returned to Promosphere. Returns will only be accepted in original condition and in original packaging. Any Products that have been modified or excessively handled will not be accepted as a return. Returns will not be accepted for Products that have not been used in accordance with any accompanying documentation, that have been modified in any way, repaired by someone other than Promosphere or used in a manner or purpose for which the Product was not intended.

 

WARRANTIES

Promosphere Warranties. Unless otherwise stated, all implied warranties and conditions in relation to any supply by Promosphere are expressly excluded. Promosphere will, in its sole discretion, pass on to you the benefit of any manufacturers’ warranties. 

Customer Warranties. You warrant and represent to Promosphere that:

  •   you are the owner or licensee of the intellectual property used in the artwork for the Products that we supply to you and you have the right to use, publish, licence or otherwise deal with the artwork in those Products;
  •   your artwork does not infringe the intellectual property or other similar rights of a third party or contravene any applicable laws and regulations; and
  •   you indemnify Promosphere against any loss and in respect of any claim alleging that the artwork or any other material supplied to Promosphere by you infringes intellectual property or other similar rights or contravenes any applicable laws and regulations.

 

GENERAL DISCLAIMER

You acknowledge that Promosphere does not make any terms, guarantees, warranties, representations or conditions whatsoever regarding the Products other than provided for in these Terms.

Promosphere will make every effort to ensure a Product is accurately depicted on the Site, however, you acknowledge that sizes, colours and materials may differ from what is displayed on the Site.

Nothing in these Terms limits or excludes any guarantees, warranties, representations or conditions implied or imposed by law, including the Australian Consumer Law (or any liability under them) which by law may not be limited or excluded. 

Subject to this clause, and to the extent permitted by law all terms, guarantees, warranties, representations or conditions which are not expressly stated in these Terms are excluded and Promosphere will not be liable for any special, indirect or consequential loss or damage, loss of profit or opportunity, or damage to goodwill arising out of or in connection with the Terms (including as a result of not being able to supply the Products or the late supply of the Products), whether at common law, under contract, tort (including negligence), in equity, pursuant to statute or otherwise.

Use of the Site and the Products of Promosphere (including our shipping services) is at your own risk.  Everything on Site, and the Products of Promosphere, are provided to you on an "as is" and "as available" basis, without warranty or condition of any kind, except as otherwise expressly provided in these Terms.

None of the affiliates, directors, officers, employees, agents, contributors, third party content providers or licensors of Promosphere (including any third party where the shipping services are made available to you) make any express or implied representation or warranty about the content on the Site or any Products referred to on the Site. This includes (but is not restricted to) loss or damage you might suffer as a result of any of the following:

  •     failure of performance, error, omission, interruption, deletion, defect, failure to correct defects, delay in operation or transmission, computer virus or other harmful component, loss of data, communication line failure, unlawful third-party conduct, or theft, destruction, alteration or unauthorised access to records;
  •     the accuracy, suitability or currency of any information on the Site or any of its content related to Products (including third party material and advertisements on the Site);
  •     costs incurred as a result of you using the Site or any of the Products;
  •     the content on the Site or operation in respect to links which are provided for your convenience;
  •     any failure to complete a transaction, or any loss arising from e-commerce transacted on the Site; or
  • any defamatory, threatening, offensive or unlawful conduct of third parties or publication of any materials relating to or constituting such conduct 



LIMITATION OF LIABILITY

Every effort is made to ensure that specifications, drawings and any other information on the Site and the Order is accurate but Promosphere excludes any liability for errors. You are excluded from making a claim against Promosphere for any minor deviation regarding the dimensions, quality or finish of your Order.

You agree that you cannot rely on any advice or representation by Promosphere or any descriptions, illustrations or specifications contained in any document produced by Promosphere.

Where Promosphere has produced artwork proofs or logo positions for a job, these are only designed as a representation of your design. The colours and sizing can vary on the actual Product. A signed or written (email) confirmation of artwork is considered full acceptance of the proof and an authority for Promosphere to proceed.

Promosphere will not be liable for loss or damage (including loss or damage as a result of third party claims, any loss of profits, loss of goodwill, loss of opportunity or any indirect, exemplary, special, incidental or consequential loss or damage) of any kind whatsoever, whether for negligence, breach of contract, misrepresentation or otherwise. 

Promosphere is not liable for the quality, fitness or fire retardant of any materials to be used in connection with the Order to you or any third party.

This exclusion of liability includes without limitation:

  •   the completeness, truth, suitability, quality or accuracy of the information or Products descriptions published on our Site or the Order (including third-party material and advertisements);
  •   that the information on the Site is up to date; or
  •   any of the Products on the Site will remain available.

These Terms are to be read subject to any legislation that prohibits or restricts the exclusion, restriction or modification of any implied warranties, conditions, guarantees or obligations. If such legislation applies, to the extent possible we limit our liability as follows, at our option:

  •     for any claims relating to these Terms, to the purchase price of the Products;
  •     in the case of products including any digital products (a) the replacement of the products or the supply of equivalent products; (b) the repair of the products; (c) the payment of the cost of replacing the products or of acquiring equivalent products; or (d) the payment of having the products repaired; or
  •     in the case of services, the supply of the services again or the payment of the cost of having the services supplied again.

Promosphere’s total liability arising out of or in connection with the Products or these Terms, however arising, including under contract, tort (including negligence), in equity, under statute or otherwise, will not exceed the most recent purchase price paid by you under these Terms or where you have not paid the purchase price, then the total liability of Promosphere is the resupply of information or Products to you.

Promosphere is not responsible or liable in any manner for any content or material on the Site or the Order (including its content or any third-party content) posted on the Site, the Order or in connection with the Products.

You acknowledge that Promosphere does not provide the shipping services for delivery of the Products to you and you agree that Promosphere will not be liable to you for any special, indirect or consequential loss or damage, loss of profit or opportunity, or damage to goodwill arising out of or in connection with the shipping services including for late delivery of the Products.

 

INDEMNITY

You must fully indemnify Promosphere against any loss, claim, damage, suit, action, expense or liability whatsoever incurred by you in connection with:

  •   the handling, transport, storage, display or use of the Product from the time you assume risk for the Products;
  •   any negligence, wrongful act or omission, or breach of statutory duty by you or your employees, contractors, officers or agents in relation to the supply under these Terms.

You must pay Promosphere all outstanding invoices in the event of any such loss, claim, damage, suit, action, expense or liability whatsoever and howsoever incurred.

You agree to indemnify Promosphere, its affiliates, employees, agents, contributors, third party content providers and licensors from and against any breach of the Terms.

 

TITLE AND RISK

Title to the Products will remain with Promosphere until you have paid the full invoice price for the Products.

Risk passes to you from the time that Promosphere ships the Products. Promosphere is under no obligation to insure the Products after they have left its place of business at the time of which risk passes to you including without limitation all loss or damage to the Products.

Promosphere will hold a general lien on all Products which are in the possession of Promosphere for all sums payable by the Customer to Promosphere and for that purpose shall have the right to sell any such Products by public auction or private sale and out of the money arising from the sale, may retain the sum to pay for all charges and expenses relating to any sums payable under these Terms.

Promosphere may exercise this right under the lien for any amounts invoiced that remain unpaid or where an administrator, receiver or liquidator is appointed to manage the affairs of Customer.

 

DISPUTE RESOLUTION

A Party must not start arbitration or court proceedings (except proceedings seeking interlocutory relief) in respect of a dispute arising out of these Terms (Dispute) unless it has complied with this clause. A Party claiming that a Dispute has arisen must notify each other Party to the Dispute giving details of the Dispute. During the 30-calendar day period after a Notice is given (or longer period agreed in writing by the Parties to the Dispute) (Initial Period) each Party to the Dispute (Disputant) covenants with the other to cooperate and take all reasonable steps necessary to attempt to resolve the Dispute.If the Disputants are unable to resolve the Dispute within the Initial Period, each Disputant agrees that the Dispute must be referred for mediation, at the request of any Disputant, to:

  •   a mediator agreed on by the Disputants; or
  •   if the Disputants are unable to agree on a mediator within seven days after the end of the Initial Period, then the Disputants must submit the Dispute for mediation through the Chair of Resolution Institute (ACN 008 651 232) or the Chair’s designated representative and the Resolution Institute Mediation Rules shall apply to the mediation.

The role of any mediator is to assist in negotiating a resolution of the Dispute.  A mediator may not make a decision that is binding on a Disputant unless that Disputant has so agreed in writing. Any information or documents disclosed by a Disputant under this clause must be kept confidential and may not be used except to attempt to resolve the Dispute. Each Disputant must pay its own costs of complying with this clause. The Disputants must pay equally the costs of any mediator engaged. The mediation will be held in Melbourne, Australia.

After the Initial Period, a Disputant that has complied with this section may terminate the dispute resolution process by giving Notice to each other Disputant. A Party to a dispute will only be entitled to pursue other remedies available to it at law or otherwise, if the parties have failed to resolve the dispute within thirty (30) calendar days after commencement of dispute resolution.

 

JURISDICTION AND GOVERNING LAW

In the event of any dispute arising out of or in relation to the Site or your Order, you agree that the exclusive venue for resolving any dispute shall be in the courts of Victoria, Australia. The Terms are governed by the laws of Victoria, Australia. Any dispute, controversy, proceeding or claim of whatever nature arising out of or in any way relating to the Terms and the rights created hereby shall be governed, interpreted and construed by, under and pursuant to the laws of Victoria, Australia, without reference to conflict of law principles, notwithstanding mandatory rules. The validity of this governing law clause is not contested. The Terms shall be binding to the benefit of the parties hereto and their successors and assigns. 

 

© 2018 Promosphere Pty Ltd. All Rights Reserved.

 

Terms last updated 10th March, 2018