These Terms and Conditions apply to the supply of Goods and/or Services by the relevant PostNet Franchisee ("PostNet") and do not bind PostNet Australia Pty Ltd in any manner whatsoever.
1 Quotation, Proposal and Creation of Contract
1.2 Quotes are valid for a period of 30 days from their date of issue. Quotes will be deemed accepted upon the Client placing an order and/or instructing PostNet to proceed with the Project.
1.3 Proposals are valid and may be accepted within 30 days from their date of issue. After such 30 day period has expired, PostNet reserves the right to reconsider any term or condition of the Proposal (including the re-pricing of the Proposal).
1.4 Prices included in Quotations and Proposals are based on PostNet's current cost of production (materials, labour, machine time, etc.). If between the date of the Quotation and/or Proposal and the date of Completion of the Project, the price of any component such as labour or materials increases, PostNet reserves the right to vary the costs payable for the Project to reasonably reflect such increased costs. PostNet will advise the Client of any such proposed increase and the Client will have the right to terminate (by written notice to PostNet) the Project, subject to payment of all costs for work performed by PostNet up to the date of such termination.
2 Agency Arrangements
2.1 If the Client contracts with PostNet on behalf of any other person i.e. other than for the Client personally, the Client warrants that they are authorised to enter into a contract on behalf of such person and that the Client will be liable for all costs irrespective of whether or not the details of such other person are disclosed to PostNet.
2.2 If PostNet is contracted to work on a Proposal for a Client of the Client, PostNet will have no duty or responsibility to such Client and will not be contractually bound to such Client.
2.3 The Client agrees to indemnify PostNet against any claim (of any nature) by any Client of the Client which arises as a direct or indirect consequence of the Client's use, or inability or unwillingness to use, the material delivered by PostNet to the Client.
3 Client Brief and Instructions
3.1 PostNet prides itself on its ability to deliver quality work in a timely and cost-effective manner. Fundamental to this process is the completeness of scope of the Client's brief. To be able to provide Goods and/or Services and to deliver a Project on time and within the parameters of a Quotation and/or Proposal, all supporting documentation and information must be provided to PostNet before the issue of any Proposal and before PostNet commences work.
3.2 PostNet shall only be required to fulfil the requirements specified in the Quotation and/or Proposal. PostNet shall not be responsible for errors or omissions in the Client's instructions or verbal instructions.
3.3 On the valid acceptance of a Proposal, PostNet will, where applicable, confirm the proposed process, timeline and delivery date for the performance of the Project.
4 Costs and Fees
4.1 All prices are based on work specified in the Quotations and/or Proposals and/or further instructions given by the Client. The labour costs specified in PostNet's Quotations and/or Proposals are based either on an hourly rate or a Project basis. On occasion, where requested by a Client, PostNet may consider a retainer arrangement.
4.2 The Client will be liable for any goods and services tax (GST) payable on the supply of Goods and/or Services by PostNet to the Client. Goods and services tax (GST) will be charged in addition to costs and fees and will be itemised in the Invoices.
4.3 PostNet's initial consultation is provided free of charge.
4.4 Emergency turnaround requirements of less than 48 hours, and out of business hour requirements will attract a premium, which will be negotiated and agreed with the Client. Prices will be increased to cover overtime work or other additional costs incurred as a result of any requirement for urgent completion of a Project.
5 Payment Terms
5.1 All Invoices will be payable COD unless prior credit arrangements have been agreed upon.
5.2 Any credit arrangements will require PostNet's Account Application Form to be completed and approved by PostNet. Any credit provided to a Client must be paid in full within 30 days from the date of the Invoice.
5.3 Any deposit specified in the Proposal, must be paid by the Client on the date of acceptance of the Proposal and in any event before commencement of the Project. The amount of deposit will vary with the Goods and/or Services to be provided.
5.4 The amount of a deposit will reflect PostNet's reasonable estimate of costs incurred to the date prior to the due date of payment of the deposit and is non-refundable.
5.5 PostNet will issue Invoices at Completion of the Project for the price specified in the Quotation and/or Proposal plus any additional charges referred to in these Terms and Conditions or as agreed, or if the Project is lengthy, PostNet may at its discretion issue interim Invoices on either a monthly basis or such lesser period by reference to the work performed to that date in accordance with the fee schedule included in the Proposal, or if no fee schedule is specified, as reasonably calculated by PostNet by reference to the amount of work performed.
5.6 PostNet may issue an Invoice for the amount specified in the Quotation and/or Proposal before commencing the Project where PostNet has not previously carried out work for the Client or where PostNet considers it prudent to do so. PostNet may, in the event that PostNet is of the view that completing the Project will take more than a month, at any time before the Project is completed, issue one or more Invoices for a proportion of the amount specified in the Quotation and/or Proposal (the proportion to be at PostNet's discretion) and require that proportion to be paid in advance of any further work being done.
6 Late or Non-Payment
6.1 If an Invoice is not paid when due, PostNet may cease any further work on the Project until all outstanding Invoices have been paid.
6.2 PostNet may at its option charge interest on amounts not paid when due. Such interest is to be calculated on a daily basis from the date any such amount should have been paid until the date of payment. Such interest will be payable at a rate equal to that charged by the Commonwealth Bank of Australia on overdrafts not exceeding $100,000, plus 3%. Such charge represents PostNet's genuine assessment of the liquidated damages which PostNet will suffer as a result of the Client's delay in making payment.
6.3 The Client must pay to PostNet any costs, expenses or losses incurred by PostNet as a result of the Client's failure to pay PostNet all sums outstanding from the Client to PostNet, including without limitation all debt collection and legal costs (on an indemnity basis).
7.1 PostNet shall notify the Client when the Goods and/or Services are ready for collection.
7.2 The Client must collect the Goods and/or Services from PostNet's premises upon being notified by PostNet that the Goods and/or Services are ready for collection. If PostNet agrees to deliver the Goods and/or Services, the Client shall bear all freight and charges of such delivery.
7.3 PostNet will use its best endeavours to deliver the correct quantity ordered. However, quantities will at all times be considered estimates only, and are conditional upon a margin of five percent (5%) being allowed for overs or shortages, which shall be charged for or deducted as appropriate.
8.1 The Client must inspect Goods and/or Services supplied by PostNet within seven (7) days from delivery or otherwise, within seven (7) days of notification that the Goods and/or Services are ready for collection. Any claims against PostNet must be in writing within such seven (7) days.
9.1 To the fullest extent permitted by law, except as provided herein or under the Australian Consumer Law, PostNet shall not be liable to the Client in contract or tort for any loss or damage or for consequential loss or damage of any kind (including but not limited to increased costs or expenses, any loss of profit, revenue, business, contracts or anticipated savings, any loss or expenses resulting from a claim by a third party or any other special, indirect or consequential loss or damage of any nature whatsoever) arising out of the supply of the Goods and/or Services, or arising out of PostNet's negligence, or caused by PostNet's failure to complete or delay in completing the Project or to deliver Goods and/or Services or in any way whatsoever.
9.2 Except as otherwise provided in the Australian Consumer Law, any advice, recommendation, information, assistance or service given by PostNet in relation to the Goods and/or Services provided by PostNet or their use or application is given in good faith and is believed to be accurate, appropriate and reliable at the time it is given, but is provided without any warranty of accuracy, appropriateness or reliability. PostNet does not accept any liability or responsibility for any loss suffered as a result of the Client's reliance on such advice, recommendation, information, assistance or service.
9.3 PostNet acknowledges liability for the guarantees in relation to the supply of Goods and/or Services prescribed by the Australian Consumer Law provided that to the extent permitted by the Australian Consumer Law, the liability for any failure to comply with such guarantees is hereby limited to:
(1) In the case of Goods, any one or more of the following:
(a) The replacement of the Goods or the supply of equivalent goods;
(b) The repair of the Goods;
(c) The payment of the cost of replacing the Goods or of acquiring equivalent goods; or
(d) The payment of the cost of having the Goods repaired; or
(2) In the case of Services:
(a) The supplying of the Services again; or
(b) The payment of the cost of having the Services supplied again.
9.4 Except as otherwise provided in the Australian Consumer Law, PostNet will not be liable to the Client for loss, howsoever caused, of any Client property supplied to PostNet or for any damage, loss or destruction of any Client property unless the loss or damage has been caused by the failure of PostNet to exercise due care and skill in handling or storing such property.
9.5 PostNet will not be liable to the Client for loss, howsoever caused, of any data stored on disks, tapes, compact disks or other media supplied by the Client to PostNet or for any damage, loss or destruction of any property of the Client unless the loss or damage has been caused by the failure of PostNet to exercise due care and skill in handling or storing such property.
9.6 Unless expressly set out herein, all implied warranties and conditions in relation to any supply by PostNet are expressly excluded (unless such warranties cannot be excluded under law).
10 Expedited Completion of Project
10.1 The Client acknowledges that a requirement for urgent completion of a Project increases the likelihood of defects. PostNet will use reasonable efforts to avoid defects but will not be liable for defects arising because of urgent completion of a Project.
11 Cancellation and Postponement
11.1 Except as set out in clause 11.2, if a Project is terminated or cancelled or suspended or postponed for a period of up to 30 days by the Client prior to Completion, PostNet shall be entitled to be compensated for hours worked on the said Project to the date of termination, cancellation, suspension or postponement, including the costs of any materials, incidentals and third party contractors.
11.2 If the Project comprises in whole or in part any website development, then once the design work for a website has been signed off by the Client and website build has commenced, such website development component of the Project cannot be cancelled and the total cost of such website development must be paid for in full.
11.3 Except as otherwise provided in the Australian Consumer Law, the Client agrees that PostNet is not liable for any loss of income or for any indirect or consequential costs or damages suffered by the Client or by any third party as a result of any delay that has been caused to the Client's business or to the business of any third party due to the cancellation, suspension or postponement of any Project.
12 Third Party Contractors
12.1 PostNet, may as agent for the Client directly or indirectly engage the services of another contractor ("Third Party Contractor") to carry out all or part of the Project. PostNet shall pay the charges of Third Party Contractors on the Client's behalf and recharge them under the Project fees.
12.2 PostNet will take all reasonable care in selecting and instructing a Third Party Contractor. While reasonable care will be taken, PostNet has no control over the activities of a Third Party Contractor and therefore, except as otherwise provided in the Australian Consumer Law, accepts no responsibility for the services provided to the Client by any such Third Party Contractor or for any errors or omissions in its services or products. Any claim by the Client in relation to such services must be made directly against the Third Party Contractor.
13 Goods and/or Services from Third Party Suppliers
13.1 If PostNet must obtain goods (including stock, typefaces, plates, etc.) and/or services not normally stocked or supplied by PostNet from a third party in order to carry out the Client's instructions:
14 Material Supplied by Client
14.1 If PostNet and the Client agree that the Client is responsible for supplying materials for the purposes of the Project, the Client must supply sufficient quantities of materials to allow for spoilage, such quantity to be specified by PostNet. PostNet will not normally count or check the materials and if requested by the Client to do so, may charge for counting or checking. PostNet will not be responsible for any defects in the goods which are caused by defects in or the unsuitability of materials supplied by the Client. Property in any materials supplied by the Client and incorporated into the Goods and/or Services passes to PostNet at time of incorporation.
15 Copyright and Trademarks
15.1 Copyright in all work produced by PostNet shall remain the property of PostNet unless otherwise agreed in writing.
15.2 All Goods and/or Services provided by PostNet may only be used for lawful and ethical purposes. This includes, but is not limited to copyrighted material. PostNet is not required to perform any Goods and/or Services it considers to be unethical, objectionable, threatening, obscene or pornographic.
15.3 The Client warrants to PostNet that the Client has copyright in, or a license to authorise PostNet to reproduce all materials supplied by the Client to PostNet for the purpose of the Project. The Client expressly authorises PostNet to reproduce all and any of such works for the purposes of the Project.
15.4 The Client warrants it has the right to use applicable trademarks which may be incorporated in any Project.
15.5 The Client indemnifies and agrees to keep PostNet indemnified against all liability, losses or expenses incurred by PostNet in any way directly or indirectly connected with any breach of copyright and trademarks or any third party in relation to any materials supplied by the Client for the purpose of the Project.
15.6 Conditional upon receipt of payment in full for the work performed by PostNet, PostNet grants to the Client a non-exclusive license to use PostNet's copyright in works created by PostNet for the purposes of the Project only, but for no other purposes.
16.1 The Client must keep confidential and must not (without PostNet's written consent) use any ideas, systems or processes, intellectual property communicated or made available by PostNet to the Client. Similarly PostNet agrees to maintain the confidentiality of the Client in all confidential materials supplied by the Client to PostNet for the purpose of the Project.
17 Final Proofs
17.1 Final proofs will be presented by PostNet to the Client for approval prior to Completion of work which forms part of the Project.
17.2 When the Client executes PostNet's proof approval document, the Client is assumed by PostNet to have reviewed all aspects of the material presented and to be satisfied with it and to have noted any exceptions in writing.
17.3 If PostNet has submitted to the Client a proof of the work, PostNet will not be responsible for any error in the work which appeared in the proof and which was not corrected by the Client before the Project was completed. The cost of additions or alterations to any proof submitted to a Client will be added to the price (unless changes to the proof are merely typographical corrections).
18.1 The risk in the Goods and/or Services passes to the Client at the time of delivery if PostNet delivers the Goods and/or Services to the Client's premises or the Client collects the Goods and/or Services from PostNet's premises. If the Goods and/or Services are not collected or delivered within 7 days of PostNet notifying the Client that the Goods and/or Services are ready for collection, risk passes on this date.
18.2 PostNet shall not be liable for insurance, freight or loss or damage to Goods and/or Services in transit incurred in delivery or which have been left at PostNet's premises.
18.3 PostNet has no obligation to insure any property of the Client in PostNet's possession. The Client must pay the cost of any insurance arranged by PostNet at the request of the Client.
18.4 If a Client leaves property in PostNet's possession for more than 12 months, PostNet may dispose of or sell the property and retain any proceeds of sale as compensation for holding and handling the property.
19.1 Ownership of and title to the Goods and/or Services contained in any Project delivered to the Client under any contract between PostNet and the Client, shall not pass to the Client until payment in full of all Invoices and sums due to PostNet under such contract has been made to PostNet.
19.2 The risk of damage to or destruction of any item delivered by PostNet to the Client shall pass to the Client upon delivery, notwithstanding that ownership of the item has not then passed, and the Client shall ensure that such item is adequately insured from time of delivery.
19.3 Until the Goods and/or Services have been paid for in full, the Client must not:
19.4 The Client irrevocably authorises PostNet at any time, to enter any premises upon which the Goods and/or Services are stored to enable PostNet to inspect the Goods and/or Services and, if the Client has breached these terms and conditions or suffers an Insolvency Event, to reclaim possession of the Goods and/or Services. The Client indemnifies PostNet against any liability to any person in connection with the entry or reclamation.
19.5 The Client acknowledges and agrees that:
19.6 The Client undertakes to:
19.7 The Client waives any rights to receive any verification statement or other notice required to be issued under the Personal Properties Securities Act 2010.
20.1 The Client expressly agrees that the use of websites which form part of any Project is at the Client's sole risk. Except as otherwise provided in the Australian Consumer Law, neither PostNet, nor its employees, affiliates, agents, third party information providers, contractors, merchants or licensors warrant that the website and any scripts or programs are entirely free of errors or defects or will not be interrupted.
20.2 The website, scripts, graphics or any other programming code created for the Client which form part of such website remain the property of PostNet until all outstanding Invoices are paid in full.
20.3 Any scripts, CGI applications, PHP scripts, or software (unless specifically agreed) produced for the Client shall remain (subject to any third party licenses), the copyright of PostNet and may only be commercially reproduced or resold with the permission of PostNet.
20.4 PostNet is not and will not be responsible for any copyright or intellectual property infringements relating to or caused by materials submitted by the Client. PostNet reserves the right to refuse any material of a copyrighted nature unless adequate proof is given of permission to use such material. Any additions to the website will be carried out at the discretion of PostNet. If there is no charge made by PostNet for such additions then, except as provided in the Australian Consumer Law, PostNet accepts no responsibility to ensure that such additions are error free and reserves the right to charge an amount for any correction to such additions or in relation to any other additions.
20.5 The Client agrees to make available to PostNet as soon as is reasonably possible, all materials required to complete the website to the agreed standard and within the timetable set out in the Proposal.
20.6 PostNet will not be liable:
21 Electronic Media
21.1 All discs, tapes, compact discs or other media (other than the media supplied by the Client) used by PostNet to store data for the purposes of completing the Project are the property of PostNet. The Client cannot require PostNet to supply to the Client any such data. PostNet may charge the Client for supplying such data where it chooses to supply such data to the Client.
21.2 PostNet will not be liable for storing any data on discs, tapes, compact discs or other media when the Project has been completed. If PostNet agrees to store such data, PostNet may charge the Client to do so.
22 Force Majeure
22.1 PostNet will not be liable for any loss, damage or expense suffered or incurred by the Client where such loss is occasioned by any cause beyond PostNet's reasonable control, including and without limiting the generality of the foregoing, by war, insurrection, terrorism, fires, floods, strikes, lockouts, delays in transport, breakdowns in machinery, the inability or failure of a supplier to supply necessary materials, or prohibitions or other action by any government or semi-government authority, or embargoes.
23 Immediate Termination
23.1 In the event that:
then in any such event PostNet shall (without prejudice to any other right or remedy available to it) be entitled to terminate or cancel any contract between itself and the Client or suspend any further deliveries of the Project or Goods and/or Services without any liability to the Client and if any materials or Goods and/or Services have been delivered or supplied but not paid for, the price of such materials and Goods and/or Services shall become immediately due and payable, notwithstanding any previous agreement or arrangement to the contrary.
24 Changes to Terms and Conditions
24.1 These Terms and Conditions may be amended at any time without notice to the Client. The Terms and Conditions which apply to any Proposal will be those current at the date of the Quotation and/or Proposal.
25 PostNet Australia Pty Ltd not party and not liable
25.1 The Client acknowledges that PostNet Australia Pty. Ltd. is not a party to this agreement and will not be liable in any manner including for any of the obligations assumed by PostNet under these Terms and Conditions.
26 No Waiver
26.1 A power or right is not waived solely because the party entitled to exercise that power or right does not do so. A single exercise of a power or right will not preclude any other or future exercise of that power or right or of any other power or right. A power or right may only be waived in writing, signed by the party to be bound by the waiver.
27.1 Any provisions in these Terms and Conditions which is invalid or unenforceable in any jurisdiction must be read down for the purposes of that jurisdiction, if possible, so as to be valid and enforceable. If that provision cannot be read down then it is capable of being severed to the extent of the invalidity or unenforceability without affecting the remaining provisions of these Terms and Conditions or affecting the validity or enforceability of that provision in any other jurisdiction.
28 Governing law and jurisdiction
28.1 These Terms and Conditions are governed in law in force in the State or Territory in which PostNet's premises are located and the parties submit to the non-exclusive jurisdiction of the courts of that State or Territory and any courts which may hear appeals from those courts in respect of any proceedings in connection with these Terms and Conditions.