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Terms and Conditions

These terms apply to any orders or goods purchased by you from Be Effective. We recommend you consult and read these carefully prior to placing an order.

The Paul E Mansfield Family Trust (ABN 44 911 806 860) trading as Be Effective Promotions or Be Effective.

These terms and conditions of supply, apply to customers of Be Effective Promotions. By placing an order with Be Effective, either by phone, email, website or by other means, the Customer is deemed to have accepted these terms and conditions, together with the terms and conditions relevant to any quotation.

Definitions

  • “Goods” shall mean all Goods supplied by Be Effective to the Customer, and where the context so permits shall include any supply of Services including advice or recommendations.
  • “Price” shall mean the Price payable for the Goods or Services as agreed between Be Effective and the Customer.

Acceptance

  • Any instructions received by Be Effective from the Customer for the supply of Goods or Services, shall constitute acceptance of the terms and conditions contained herein.

Quotations and Orders

  • Quotations are based on the cost of materials available at the time of quotation, and Be Effective has the right to make any necessary adjustments and correct any errors.
  • If the Customer varies the order after receipt of a quotation or order placement, or requests Be Effective to make adjustments to files or to the job specifications, Be Effective reserve the right to vary the price and present an additional invoice item or invoice for any extra amount caused by the variation.

Price and Payment

  • At Be Effective’s sole discretion the Price shall be either:
    • as indicated on invoices provided by Be Effective to the Customer in respect of Goods supplied; or
    • the quoted Price (subject to clause 2) which shall be binding upon Be Effective, provided that the Customer shall accept Be Effective’s quotation within thirty (30) days.
  • Be Effective reserve the right to change the Price in the event of a variation to the quotation specifications. Any variation from the quotation, plan of scheduled works, or specifications as a result of increases to the cost of materials and labour will be charged for on the basis of Be Effective’s quotation, and will be shown as variations on the invoice. Payment for all variations must be made in full at the time of completion.
  • Be Effective may amend the Price before the order has been completed to take into account any rise or fall in the cost of performing the order, and Be Effective shall notify the Customer of such amendment as soon as practicable thereafter. Upon Be Effective providing the Customer notification of such amendment, the amended estimate shall be deemed to be the Price for the purposes of these terms and conditions.
  • At Be Effective’s sole discretion a non-refundable deposit may be required.
  • At Be Effective’s sole discretion:
    • payment shall be due on delivery or collection of the Goods; or
    • payment shall be due before delivery or collection of the Goods; or
    • payment for approved customers shall be due thirty (30) days following the end of the month in which a statement is delivered to the Customer’s address or address for notices.
      Payment will be made by cash, or by cheque, or by bank cheque, or by credit card (plus a bank surcharge of up to two percent (2%) of the Price), or by direct credit.
  • The Customer acknowledges that whilst Be Effective will make every endeavour to produce the exact number of items in the Order, owing to human and/or machine/computer error the number of items actually produced may be 10% over or under the number specified in the Order.
  • Where such a variation occurs Be Effective will adjust the amount charged to the Customer for the Order as a pro rata amount, to reflect the actual number of items produced.
  • If the Order is suspended for more than 30 days at the request of the Customer, or as a result of something for which the Customer is responsible, Be Effective may issue an invoice for a particular sum (to be specified by Be Effective) for the work already done and for other costs incurred by Be Effective (such as storage costs).

Delivery of Goods

  • At Be Effective’s sole discretion, delivery of the Goods shall take place when:
    • the Customer takes possession of the Goods at Be Effective’s address; or
    • the Customer takes possession of the Goods at Be Effective’s nominated address (in the event that the Goods are delivered by Be Effective or Be Effective’s nominated carrier); or
    • the Customer’s nominated carrier takes possession of the Goods in which event the carrier shall be deemed to be the Customer’s agent.
  • The Customer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. In the event that the Customer or the Customer’s agent is unable to take delivery of the Goods as arranged, then Be Effective shall be entitled to charge a fee for re-delivery.
  • Delivery of the Goods to a third party nominated by the Customer, is deemed to be delivery to the Customer for the purposes of this agreement.
  • The failure of Be Effective to deliver, shall not entitle either party to treat this contract as repudiated.
  • Be Effective shall not be liable for any loss or damage whatsoever due to failure by Be Effective to deliver the Goods (or any of them) promptly or at all, where due to circumstances beyond the control of Be Effective.
  • Be Effective shall not be liable for insurance, freight or loss, or damage to Goods in transit incurred in delivery, or which have been left at Be Effective’s premises.
  • Be Effective has no obligation to insure any property in Be Effective’s possession.
  • If a Customer leaves property in Be Effective’s possession for more than 3 months, Be Effective may dispose of or sell the property and retain any proceeds of sale as compensation for holding and handling the property.

Production Process and Risk

  • Whilst every care is taken by Be Effective to carry out the instructions of the Customer, it is the Customer’s responsibility to undertake a final proof read of the Goods. Be Effective shall be under no liability whatever for any errors not corrected by the Customer in the final proof reading. Should the Customer’s alterations require additional proofs this shall be invoiced as an extra.
  • Proofs will not be supplied to the Customer unless specified in the quotation. Be Effective is not responsible for production errors if:
    (a) proofs are not requested by the Customer; or
    (b) the work is printed with the Customer’s approval; or
    (c) changes are communicated orally; or
    (d) the opportunity to view and authorise a proof is declined.
  • The cost of any additions, alterations or corrections to the proof after prior approval by the Customer will be added to the price.
    Where the Customer requests a press check, the Customer must be present to authorise the printing process. Any lost press time (including for additional adjustments or alterations made by the Customer) must be paid for by the Customer.
  • The Customer acknowledges that differences in paper, equipment and ink, may cause a variation in colour, and such variation will not detract from the order being acceptable and completed.
  • While every effort will be taken by Be Effective to match colours, Be Effective shall be under no liability whatever to the Customer for any variation in colours between the Customer’s samples and the finished Goods.
  • Be Effective shall not be held liable for inks fading or deteriorating through general wear and tear.
  • All artwork, designs, typesetting, proofs, drawings, sketches, paintings, photographs, dummies, blocks, engravings, dies, plates or cylinders, electronic data or other media, or data and other material produced by Be Effective in the course of or in preparation for performing the Order (whether or not in fact used for the purposes of performing the Order) are the property of Be Effective.
  • The Customer cannot require Be Effective to supply the Customer any data so stored. In the event Be Effective does supply any data so stored or created, Be Effective may charge for retrieval and supplying such data to the Customer.
  • Be Effective will not be responsible for storing any data when the Order has been completed. If Be Effective agrees to store such data, Be Effective may charge for doing so.

Retention of Title

  • Be Effective and the Customer agree that ownership of the Goods shall not pass until:
    • the Customer has paid Be Effective all amounts owing for the particular Goods; and
    • the Customer has met all other obligations due by the Customer to Be Effective in respect of all contracts between Be Effective and the Customer.
  • Receipt by Be Effective of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then Be Effective’s ownership or rights in respect of the Goods shall continue.
  • It is further agreed that:
    • where practicable the Goods shall be kept separate and identifiable until Be Effective shall have received payment and all other obligations of the Customer are met; and
    • until such time as ownership of the Goods shall pass from Be Effective to the Customer, Be Effective may give notice in writing to the Customer to return the Goods or any of them to Be Effective. Upon such notice the rights of the Customer to obtain ownership or any other interest in the Goods shall cease; and
    • Be Effective shall have the right of stopping the Goods in transit whether or not delivery has been made; and
    • if the Customer fails to return the Goods to Be Effective then Be Effective or Be Effective’s agent may (as the invitee of the Customer) enter upon, and into land and premises owned, occupied or used by the Customer, or any premises where the Goods are situated and take possession of the Goods; and
    • the Customer is only a trustee of the Goods and until such time as Be Effective has received payment in full for the Goods then the Customer shall hold any proceeds from the sale or disposal of the Goods, up to and including the amount the Customer owes to Be Effective for the Goods, on trust for Be Effective; and
    • the Customer shall not deal with the money of Be Effective in any way which may be adverse to Be Effective; and
    • the Customer shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of Be Effective; and
    • Be Effective can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Customer; and
    • until such time that ownership in the Goods passes to the Customer, if the Goods are converted into other products, the parties agree that Be Effective will be the owner of the end products.

Shortcomings and Deficiencies

  • The Customer shall inspect the Goods on delivery and shall within seven (7) days of delivery (time being of the essence) notify Be Effective of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote.
  • The Customer shall afford Be Effective an opportunity to inspect the Goods within a reasonable time following delivery if the Customer believes the Goods are defective in any way.
  • If the Customer shall fail to comply with these provisions, the Goods shall be presumed to be free from any defect or damage.
  • For defective Goods, which Be Effective has agreed in writing that the Customer is entitled to reject, Be Effective’s liability is limited to either (at Be Effective’s discretion)
    • replacing the Goods; or
    • repairing the Goods; or
    • refunding of the purchase price of resupplying the Goods.
  • Be Effective will not be liable for Goods which have not been stored or used in a proper manner.
  • Be Effective will have no liability to the Customer in relation to any loss, damage or expense caused by Be Effective’s failure to complete the Order or to deliver the Goods as a result of fire, flood, tempest, earthquake, loss of power, riot, civil disturbance, theft, crime, strike, lockout, breakdown, war, the inability of Be Effective’s normal suppliers to supply necessary materials or any other matter beyond Be Effective’s control.

Intellectual Property

  • Where Be Effective has designed, drawn or written Goods for the Customer, then the copyright in those designs and drawings and documents shall remain the property of Be Effective, and shall only be used by the Customer at Be Effective’s discretion.
  • The Customer warrants that the Customer has copyright in or a licence to authorise Be Effective to reproduce, all works supplied by the Customer to Be Effective for the purposes of the Order, and the Customer hereby expressly authorises Be Effective to reproduce all and any of such works for the purposes aforesaid;
  • The Customer hereby indemnifies and agrees to keep indemnified Be Effective against all liability, losses or expenses incurred by Be Effective in relation to, or in any way directly or indirectly connected with any breach of copyright or of any rights in relation to copyright in such works supplied as aforesaid.
  • The Customer is hereby granted a non-exclusive licence to use the copyright in any works authored by Be Effective for the purposes of the Order. However, the exercise of such licence shall be conditional upon Be Effective having received all monies due to Be Effective under these Terms and Conditions.
  • The Customer must keep confidential and not use any ideas communicated by Be Effective to the Customer without Be Effective’s written consent.
  • The Customer warrants that all designs or instructions to Be Effective will not cause Be Effective to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify Be Effective against any action taken by a third party against Be Effective in respect of any such infringement.
  • The Customer agrees that Be Effective may use any documents, designs, drawings or Goods created by Be Effective for the purposes of advertising, marketing, or entry into any competition.

Cancellation

  • Be Effective may cancel any contract to which these terms and conditions apply, or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Customer. On giving such notice Be Effective shall repay to the Customer any sums paid in respect of the Price. Be Effective shall not be liable for any loss or damage whatsoever arising from such cancellation.
  • Cancellation of orders for Goods made to the Customer’s specifications or non-stocklist items will definitely not be accepted, once production has commenced.

General

  • If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
  • If any provisions of these terms and conditions are inconsistent with the PPSA, the PPSA shall prevail to the extent of that inconsistency.
  • These terms and conditions and any contract to which they apply shall be governed by the laws of South Australia and are subject to the jurisdiction of the courts of Adelaide, South Australia.
  • Be Effective shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by Be Effective of these terms and conditions.
  • In the event of any breach of this contract by Be Effective the remedies of the Customer shall be limited to damages which under no circumstances shall exceed the Price of the Goods.
  • The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by Be Effective nor to withhold payment of any invoice because part of that invoice is in dispute.
  • Be Effective may license or sub-contract all or any part of its rights and obligations without the Customer’s approval
  • The Customer agrees that Be Effective may review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which Be Effective notifies the Customer of such change. The Customer shall be under no obligation to accept such changes except where Be Effective supplies further Goods to the Customer and the Customer accepts such Goods.
  • Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.

The failure by Be Effective to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Be Effective’s right to subsequently enforce that provision.

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