All services supplied by K2AUSPROMO Pty Limited (“Yespost”) are supplied on the basis of its terms and conditions of supply which may be found below. Without limiting these terms and conditions of supply, we draw to your attention the following key conditions upon which Yespost’s services are provided:
K2AUSPROMO Pty Limited (ABN: 21 639 327 665)
Terms and Conditions of Supply
These Conditions of Contract set out below apply to all orders accepted by K2AUSPROMO Pty Limited (ABN: 21 639 327 665) (“Yespost”), to all Yespost quotes accepted by a customer or potential customer (“Customer”) and to all contracts for the purchase of services from Yespost .
Without limiting the specific provisions set out below, we draw to your attention the following key conditions upon which Yespost’s services are provided:
- Your materials will be collated with the materials of other customers and be distributed in the course of Yespost’s normal scheduled distributions.
- Your materials will be distributed by independent contractors who are not directly supervised by Yespost. Yespost does not accept responsibility for any delays or incorrect or failed deliveries. Yespost does not guarantee that every household within the agreed distribution areas will receive materials at all, or all materials in a delivery bundle. Matters such as lack of unimpeded access, safety issues, inclement weather, “no advertising material” directions, full letterboxes, and incorrectly labelled quantities are just some of the factors that affect the household delivery rate
- In the case of the provision of print services it is your responsibility to check the proofs provided by Yespost to you before printing.
- Yespost requires payment of its charges before providing any services.
- Yespost does not guarantee the outcome of any marketing campaign of which the distribution of your materials forms part.
- Yespost will not be liable or responsible for any loss or damage to your materials. As with any delivery or common carrier, risk of loss or damage remains with you and you must insure your materials.
- You are responsible for and must indemnify Yespost in respect of, any claim, loss or damage, arising out of or relating to, the content of your materials which you give Yespost to distribute. The content of your materials must comply with all applicable laws. For example, product safety laws, election notice laws, laws prohibiting misleading advertising etc.
Where used in these Conditions of Contract:
“GST” means a goods and services tax imposed under the GST Law.
“GST Amount” means the amount of GST payable in respect of a Taxable Supply calculated by applying the appropriate rate of GST in accordance with the GST Law.
“GST Law” has the meaning given to that term in A New Tax System (Goods and Services Tax) Act 1999, or, if the Act does not apply for any reason, means any Act imposing or relating to the imposition or administration of a goods and services tax in Australia, and any regulation made under the Act.
“Laws” means legislation, regulations, ordinances, codes, or standards.
“Materials” refers to any advertising, promotional or printed material, data, data files, or other information, material or goods provided by the Customer to Yespost for purposes of the Services.
“Personal Information” means information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.
“Pre-Print Materials” means any logos, images, copyrighted text and/or other data, files, information and intellectual property supplied by the Customer to Yespost for incorporation into any printed materials.
“Privacy Laws” refers to Privacy Act 1988 (Cth) and the National Privacy Principles contained in that Act.
“Services” refers to the services to be provided by Yespost as may be referred to and provided for in any accepted order or quotation and may include but not be limited to printing, wrapping, mail processing, distribution of Materials, delivery and ancillary services
1.ACCEPTANCE OF ORDERS AND QUOTATIONS
1.1 All orders for the provision of services placed with Yespost or quotations accepted by the Customer shall be subject to these Conditions of Contract.
1.2 Yespost may at any time and from time to time alter these Conditions of Contract and such altered Conditions of Contract shall apply to all orders placed or quotations accepted after notification by Yespost to the Customer of the relevant changes.
1.3 Yespost is not bound by any variation to these Conditions of Contract unless recorded in writing and signed by a duly authorised Officer of Yespost. These Conditions of Contract shall apply notwithstanding any provisions to the contrary which may appear on any order form or other document issued by the Customer.
1.4 All quotations are valid only for a period of thirty (30) days and Yespost may, in its discretion, refuse any purported acceptance by the Customer which occurs after that time.
1.5 The Customer acknowledges that it does not rely on any representation made (if any) by or on behalf of Yespost in relation to the commercial value of Services provided by Yespost and relies entirely on its own enquiries and evaluations in relation to the commercial value of any such Services.
2. PERFORMANCE OF SERVICES
2.1 The Customer acknowledges and accepts that Yespost may carry out services for other customers at the same time as providing Services to the Customer.
2.2 Yespost shall not be responsible for any loss or damage caused by, any failure or delay to provide, the Services including where such failure or delay is wholly or partly due to any cause or circumstance whatsoever outside the reasonable control of Yespost.
2.3 Yespost may sub-contract the performance of part or all of its obligations to provide the Services.
3. LETTERBOX DISTRIBUTION SERVICES
This section 3 applies to a letterbox distribution service forming the whole or part of the services provided by Yespost.
3.1 The Customer acknowledges and agrees that:
(a) its Materials for distribution may be distributed together with materials of other customers of Yespost, and
(b) Yespost does not guarantee full distribution of all Materials to all households within the agreed distribution areas, and accepts no liability for any failure to deliver to all households within agreed distribution areas. Factors beyond Yespost’s control such as health and safety issues, hazardous conditions, adverse weather conditions, accessibility of letterboxes, signs on letterboxes and the independent nature of Yespost’s distribution contractors may adversely affect distribution.
(c) At any given time, a particular agreed distribution area may not be fully covered by Yespost’s distribution network. Yespost reserves the right to change the scope and size of distribution areas at any time.
(d) Yespost’s dwelling counts by suburb or distribution area are estimates only, may not be accurate, and may change from time to time.
3.2 Yespost does not guarantee when delivery and distribution shall take place. The specific days and times of the provision of Services during the period allocated for the Services shall be at the absolute discretion of Yespost.
3.3 Yespost will not be liable for any loss or damage caused by or contributed to by any delay, loss, omission or misplacement of Materials during its performance of the Services.
3.4 Where an order is cancelled more than seven (7) days prior to the proposed provision of Services a cancellation fee of 10% of the agreed or quoted price shall be payable by the Customer. This cancellation fee is not a penalty but is a genuine pre-estimate of damages incurred by Yespost.
3.5 Where an order is cancelled less than seven (7) days prior to the proposed provision of Services a cancellation fee of 25% of the agreed or quoted price shall be payable by the Customer. This cancellation fee is not a penalty but is a genuine pre-estimate of damages incurred by Yespost.
3.6 Yespost reserves the right to refuse, suspend or terminate any provision of Service or future provision of Service at any time by oral or written notice without being required to give any reason and without being liable for any loss or damage incurred by the Customer or any third party as a result.
4. PRINT SERVICES
This section 4 applies to a design and/or print service forming the whole or part of the Services provided by Yespost.
4.1 Nothing herein conveys to either party any right, title, interest in the other party’s pre-existing intellectual property. All intellectual property rights created by or arising out of the performance of the Services by Yespost will vest in Yespost. Upon payment of fees due and owing in respect of the relevant Services, Yespost grants to the Customer a perpetual and royalty free licence to use the same for the purposes of enjoyment of the benefit of the Services.
4.2 Whether The Customer or Yespost produce artwork, The Customer must promptly review, check and verify the design and content of the Artwork. The Customer releases Yespost from and against all liabilities, loss, damage, demands, claims, costs and expenses caused by any inaccuracy or other defect in the printed materials which were reviewed by the Customer. The Customer indemnifies Yespost and its employees, agents and contractors against all liabilities, loss, damages, demands, claims, costs and expenses incurred by them as a result of the publication, distribution or issuing of the printed materials including any reliance placed by any person on their contents.
5. RISK IN CUSTOMER MATERIALS
5.1 Notwithstanding delivery of Materials by the Customer to Yespost all risk in the Materials shall remain with the Customer and the Customer shall indemnify Yespost against any loss or damage to the Materials. Without limiting the generality of the foregoing, Yespost is not responsible for any loss of or damage to Materials which are delivered outside of the timeframes specified by Yespost, and/ or, to a Yespost delivery address which is not the address specified by Yespost.
6. PAYMENT TERMS, TAXES and GST
6.1 Save for defined terms in this Agreement, capitalised expressions set out in this clause have the same meanings as those expressions in the GST Law.
6.2 Unless otherwise expressly indicated, all amounts relating to a Taxable Supply quoted by Yespost or stated in this Agreement represent the Value of the Taxable Supply and do not include the GST Amount.
6.3 Where a Taxable Supply is made by Yespost to the Customer, the Customer will pay to Yespost the GST Amount applicable to that Taxable Supply in addition to any other amount payable under this Agreement in respect of that Taxable Supply (including but not limited to the Service Fee). Unless otherwise specified in writing by Yespost, the Customer will pay the GST Amount concurrently with the payment of the earliest of any other amount payable in respect of the Taxable Supply.
6.4 Yespost will provide the Customer with a Tax Invoice in a form which complies with the GST Law before any GST Amount is payable.
6.5 Any reference in this Agreement to a cost or expense which is to be reimbursed by the Customer to Yespost excludes any amount in respect of GST forming part of the cost or expense when incurred by Yespost for which Yespost can claim an Input Tax Credit provided that nothing in this clause will prevent Yespostfrom charging the GST Amount to the Customer in respect of a Taxable Supply for which the cost or expense is Consideration.
6.6 In calculating the Value of the Taxable Supply, Yespost’s obligations are limited to those contained in this Agreement and the GST Law.
6.7 In the event of an increase in the costs of providing the services caused by circumstances outside of the reasonable the control of Yespost, including the imposition of a new direct or indirect tax or impost or levy, and other legislative changes Yespost reserves the right to review and vary its pricing.
6.8 All prices, fees and charges set out in this Agreement are exclusive of all indirect taxes (including but not limited to sales tax, goods and services tax and similar consumption and value-added taxes) and other governmental charges. Yespost will separately itemise all such taxes and governmental charges in its invoices and the Customer will pay to Yespost all such taxes and governmental charges at the same time as the prices, fees or charges to which they relate are payable.
6.9 Payment of the quoted price is required in the time specified in the Quotation or as otherwise specified in writing by Yespost or if the time for payment is not so specified then the Customer will make payment within seven (7) days from the date of Yespost’s invoice.
6.10 Without limiting any other right available to it under these terms and conditions, Yespost may increase its freight charges from 1 January each calendar year, in line with the increase in the consumer price index (CPI All Groups, weighted average of eight capital cities) over the preceding 12 month period.
7. WARRANTIES AND INDEMNITIES
7.1 These Conditions of Contract do not exclude, restrict or modify the application of any provisions of any Commonwealth, State or Territorial Law which by law cannot be excluded, restricted or modified and should any of these conditions be held to so exclude, restrict or modify then those conditions shall be deemed to be severed from these Conditions of Contract.
7.2 To the extent permitted by law, Yespost’s liability for any loss or damage arising from or relating to the provision of the Services, including negligence, shall be limited at Yespost’s discretion to one of the following:
(a) Payment of the cost of supplying the relevant Services in respect of which the loss or damage arose; or
(b) supplying the Services again.
In no event will Yespost have any liability to the Customer for any additional loss or liability, including any indirect or consequential loss or damage, resulting from Yesposts provision of the Services or otherwise, , including without limitation liability for the costs of replacing any Materials, or in the event of non-delivery of Materials, liability for the production and printing costs of the Materials.
7.3 The Customer warrants that any and all Materials and Pre-Print Materials:
(a) do not contain any matter which is obscene, defamatory, or illegal or which infringes any copyright, trade mark or other intellectual property right;
(b) are accurate and up-to-date;
(c) can be used in providing of the Services without contravening any Law or the rights of any third party; and
(d) to the extent that they incorporate Personal Information concerning individuals:
(i) information has been collected in compliance with the Privacy Laws and, in particular, has been collected by lawful and fair means and not in an unreasonably intrusive way; and
(ii) at or before the time of collection, reasonable steps were taken to ensure the individuals whose Personal Information was collected were made aware of the purpose for which it was being collected and that the individuals have a right of access to their Personal Information; and
(iii) use of the information in providing the Services will not breach the Privacy Laws.
7.4 Without limiting any other right or remedy available to it, Yespost may reject any Materials, Pre-Print Materials or an order for Services which fails to comply with the Customer’s warranty in clause 8.3.
7.5 The Customer will and does hereby indemnify Yespost its servants and agents against all liability, claims, actions, proceedings, losses, damage, costs and expenses incurred by Yespost arising out of or relating to any breach by the Customer of its obligations in these Conditions of Contract, any breach of warranty by the Customer, the content of the Materials and Pre-Print Materials, and any negligent or wrongful or unlawful act or omission on the part of the Customer, its employees or agents.
8.1 Governing Law
The Customer agrees that these Conditions of Contract shall be construed according to the laws of New South Wales, and the parties submit to the jurisdiction of the courts of that state.
Yespost may in its discretion sub-contract any or all of the provision of the Services.