Constant Supply PRINT ON DEMAND Terms and Conditions
B. Constant Supply (the Supplier) has developed the Licenced Software which automatically processes orders submitted on an internet shopfront and transmits the details of the order to the Supplier for manufacturing, packing and shipping.
C. You (the Client) wish to licence the Licenced Software and to engage Constant Supply to manufacture, pack and ship Products ordered using the Licenced Software.
D. Constant Supply has agreed to licence the Licenced Software to you and to manufacture, pack and ship the Products for you upon and subject to the terms and conditions of these terms and conditions.
E. By submitting an application to create an account with Constant Supply, you are agreeing to be bound by these terms and conditions. If you do not agree to be bound by these terms and conditions, you must not submit an application to create an account with Constant Supply or otherwise use the Licenced Software or Constant Supply’s Services.
F. Constant Supply reserves the right to update these terms and conditions at its utmost discretion from time to time. Any amendments to these Terms and Conditions will be effective immediately after Constant Supply posts them to Constant Supply’s Website. You are responsible for reviewing and becoming familiar with all such amendments, and you agree to review the terms of this Agreement each time you access or use the Licenced Software so that you are aware of any amendments to this Agreement. Where Constant Supply elects to amend this agreement, you will be agreeing to those amendments where you continue to use the Licenced Software or otherwise submit Purchase Orders after receiving notice of the amendments. If you do not agree to the amendments, you must cease using the Licenced Software and Constant Supply’s Services.
In this document, the following definitions apply:
(a) Agreement means the Agreement between the parties on the terms set out in this document;
(b) Application means an application to open an account with the Supplier in the form published by the Supplier from time to time;
(c) Client means any person who submits an Application;
(d) Client Store means an online store operated by the Client that utilises the online shopping software known as Shopify;
(e) Client’s STRIPE Account means an account with Stripe in the name of the Client which has been linked to the Licenced Software by the Client;
(f) Customer means a customer of the Client who places a Customer Order on the Client Store;
(g) Customer Order means an order for goods by a third party from the Client through the Client Store;
(h) Email Address means:
(i) For the Supplier, email@example.com ;
(ii) For the Client, the address nominated by the Client on their Application;
(i) GST means the goods and services tax as defined in the A New Tax System (Goods and Services) Act 1999 (Cth);
(j) GST Invoice means a valid GST tax invoice in a form that complies with the requirements of the GST Act, for each taxable supply under this Agreement;
(k) Intellectual Property Rights means all present and future rights conferred by statute, common law or equity in or in relation to any copyright, trade marks, designs, patents, circuit layouts, (whether registered or unregistered and any application or right to apply for registration) confidential information, know-how, business and domain names, inventions, and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields;
(l) Jurisdiction means the jurisdiction of the State of Queensland in the Commonwealth of Australia;
(m) Licence means the licence for the Licenced Software granted in accordance with clause 3 of this Agreement;
(n) Licenced Software means the Constant Supply POD Shopify Plugin software, as amended from time to time by the Supplier;
(o) Price means the price payable for Products ordered by the Client from the Supplier under this Agreement;
(p) Products means products ordered by the Client from the Supplier under a Purchase Order;
(q) Purchase Order means a purchase order for Products from the Client to the Supplier which sets out the following information:
(i) The name of the Customer;
(ii) The address of the Customer;
(iii) The Specifications of each Product ordered;
(iv) The quantity of each Product ordered; and
(v) The Client’s order number for the corresponding Customer Order;
(r) Services means Constant Supply’s manufacturing, packing and shipping (as agent) services provided in accordance with clauses 6 and 7 of these Terms and Conditions;
(s) Specification means any specifications, standards of quality and other requirements for each Product, as specified by the Client using the Licenced Software;
(t) Stripe means:
(i) Stripe Inc.;
(ii) Stripe Payments Europe, Limited;
(iii) Stripe Payments Australia Pty Ltd; and
(iv) Any subsidiary or holding company of any of the above entities;
(u) Supplier means Constant Supply Pty Ltd;
(v) Terms and Conditions means the terms and conditions in this document; and
(w) Website means Constant Supply’s website located at www.constant.supply.
(a) a reference to persons includes corporations;
(b) words including singular numbers include plural numbers and vice versa;
(c) words including a gender include all genders;
(d) any reference to a Party to this Agreement includes its successors and permitted assigns;
(e) where a word or phrase is defined, its other grammatical forms has a corresponding meaning;
(f) a reference in this Agreement to a statute or a section of a statute includes all amendments to that statute or section passed in substitution for the statute or section referred to and incorporating any of its provisions;
(g) headings and underlinings have been inserted in this Agreement for the purpose of guidance only and do not affect the interpretation of this Agreement;
(h) a reference to a schedule is to a schedule to this Agreement and a reference to a part, clause or other sub-clause is a reference to a part, clause or other sub-clause in this Agreement;
(i) the words “includes” and “including” and words of similar effect are not words of limitation;
(j) an agreement, representation or warranty on the part of two or more persons binds them jointly and severally;
(k) an agreement, representation or warranty on the part of two or more pers if for the benefit of them jointly and severally;
(l) all references to currency are references to Australian Dollars;
(m) all references to time are references to time on the Gold Coast in the State of Queensland;
(n) all references to business days are references to days that are not Saturday, Sunday or a public holiday on the Gold Coast in the State of Queensland; and
(o) if the day for doing any act by a Party under or pursuant to this Agreement is not a business day, then that act may be performed by the Party on the next business day.
2.1 The Client may enter into an Agreement with the Supplier on the terms of these Terms and Conditions by submitting an Application to the Supplier in accordance with any directions of the Supplier for the submission of an Application. The date of the Agreement will be date the Client submits the Application to the Supplier.
2.2 Notwithstanding that this Agreement shall come into effect once the Client submits an Application, the Supplier shall be entitled to request such further information or documents from the Client that it deems necessary to confirm the identity of the Client to the reasonable satisfaction of the Supplier. Where the Supplier exercises its discretion to request further information under this clause, its obligations under this Agreement shall be suspended until such time as the Client provides the Supplier with all information requested by the Supplier.
2.3 This Agreement shall come into force on the date of this Agreement and shall, subject to the provisions of clause 11, remain in full force and effect for an initial period of twelve (12) months and thereafter for successive periods of twelve (12) months each unless and until either party hereto shall, one (1) month prior to the expiration of the initial period or of any of the subsequent periods, as the case may be, give notice in writing to the other party to terminate the Agreement at the end of the then running period.
3.1 The Supplier agrees to grant the Client a non-exclusive licence to use the Licenced Software on the Client Store in accordance with the terms of this Agreement.
3.2 The Client acknowledges and agrees that by integrating the Licenced Software into the Client Store:
(a) The Licenced Software’s intended use is to automate ordering Products from the Supplier to fulfil Customer Orders;
(b) The Client is authorising the automated actions of the Licenced Software by integrating the Licenced Software into the Client Store; and
(c) Any automated actions of the Licenced Software will be deemed to be actions of the Client on the basis that the Client has integrated the Licenced Software to perform those automated actions on behalf of the Client.
3.3 The Client warrants that:
(a) It will only utilise the Licenced Software in accordance with all directions and policies of the Supplier, as amended by the Supplier from time to time at its absolute discretion;
(b) It will not alter the Licenced Software in any way, including but not limited to extracting, altering or modifying the underlying code of the Licenced Software or any part thereof;
(c) If it becomes aware of any bug, defect or other circumstance in the Licenced Software producing a result that a reasonable person would interpret as a result that was not intended by the developer of the Licenced Software, it will provide the Supplier with particulars of that bug, defect or other circumstance as soon as reasonably possible after the Client becomes aware of that bug, defect or other circumstance and will otherwise do all things necessary to comply with any requests for further information about the bug, defect or other circumstance from the Supplier; and
(d) It will not use the Licenced Software to infringe upon the Intellectual Property Rights of any other person, including but not limited to using the Licenced Software in connection with the sale of any goods bearing words or images that infringe upon the copyright or trade marks of any third party.
3.4 The Client acknowledges and agrees that the Supplier is providing the Licence to the Licenced Software without any warranties as to its use, function or utility.
3.5 The Supplier shall be entitled to pre-screen, refuse, block, disable or remove any artwork, design or image from the Licenced Software in its sole unfettered discretion.
4.1 When a Customer Order is placed on the Client’s Store, the Licenced Software will send a Purchase Order to the Supplier for the Products ordered by the Customer in the Customer Order.
4.2 The Client acknowledges and agrees that any Purchase Order submitted to the Supplier by the Licenced Software integrated into the Client Store will be deemed to have been submitted by the Client and the Client warrants that it will not contest the validity of any purchase order submitted by the Licenced Software on its behalf, including but not limited to contesting the validity of any Purchase Order on the basis that the Client did not authorise the Purchase Order or otherwise on the basis that the Purchase Order was not submitted by the Client.
5.1 The Price of any Products and the associated Services will be the price displayed in the Licenced Software at the time the Purchase Order is submitted to the Supplier by the Client.
5.2 Upon receipt of Purchase Order by the Supplier, the Client must pay the Price for the Purchase Order to the Supplier by direct debit from the Client’s Stripe Account and agrees to do all things necessary to authorise the Supplier to direct debit the Client’s Stripe Account. For the avoidance of doubt, performance of the Supplier’s obligations in relation to any Purchase Order is conditional upon the Supplier receiving payment in accordance with this clause.
5.3 The Client must make payment for a Purchase Order within 7 days from the date the Purchase Order is submitted to the Supplier. If the Supplier has not received payment for any Purchase Order by the date that is 8 days from the date the Purchase Order is submitted, the Purchase Order will be automatically cancelled and the Supplier will have no further obligations in relation to that Purchase Order.
5.4 The Supplier reserves the right to vary the prices displayed in the Licenced Software from time to time, provided that any variations will only take effect 14 days after written notice of the variations to the Client.
5.5 The Supplier may refuse any Purchase Order for any reason at any time at its sole absolute discretion, in which case it will notify the Client that the Purchase Order has been refused, refund any Price paid for that Purchase Order and thereafter shall have no further obligations under this Agreement with respect to that Purchase Order. The Supplier shall not be liable to the Client or any Customer or other third party by reason of refusing any Purchase Order.
6.1 Once the Supplier has received payment of the Price for the Purchase Order, the Supplier will manufacture the Products particularised in the Purchase Order.
6.2 Notwithstanding any other provision of this Agreement, the Supplier shall be entitled to refuse to manufacture any Products that it believes will infringe upon the Intellectual Property Rights of any third party in its absolute unfettered discretion. Within 5 business days of exercising its discretion under this clause, the Supplier will notify the Client of any decision not to manufacture any products and refund the Price paid to the Supplier for those Products to the Client’s STRIPE Account.
6.3 The Products shall at all times be manufactured and packed (including labelling) in accordance with such Specifications as shall from time to time be specified by the Client using the Licenced Software.
6.4 The Supplier shall manufacture, package and store the Products in conformity with the requirements of the laws of the Jurisdiction governing such manufacture, packaging and storage including but not limited to any Statute or Regulation governing the manufacture, packaging, labelling and sale of apparel and clothing products in the Jurisdiction.
6.5 The Supplier shall at all times acquire or use raw, packaging and other materials for the manufacture and packaging of the Products which are in accordance with the Specifications and the Supplier specifically acknowledges the Client's right to specify the quality, type, style and presentation of such raw, packaging and other materials, but only to the extent that the Licenced Software expressly permits the Client to specify those variables. For the avoidance of doubt, nothing in this clause shall entitle the Client to specify the quality, type, style and presentation of any raw, packaging or other materials through any methodology other than specifying those variables in the Licenced Software.
6.6 The Supplier reserves the right to amend the Licenced Software from time to time at its own absolute discretion to add to, remove or otherwise modify the ability of the Client to specify the quality, type, style and presentation of raw, packaging or other materials.
6.7 The Client acknowledges and agrees that whilst the Supplier will use its best efforts to provide the best images and descriptions, the Supplier does not guarantee that any colours or other details in any images in the Licenced Software or otherwise on the Website are completely accurate representations of the Products.
6.8 Where the Supplier becomes aware that any Products manufactured by the Supplier are defective:
(a) the Supplier will manufacture replacements where the defect is discovered by the Supplier prior to shipping the Product and use those replacement Products to fulfil the Purchase Order;
(b) clause 13 applies where the defects are discovered after the Products have been shipped by the Supplier;
(c) the Supplier reserves the right to donate all damaged Products with full or partial designs to charity and the Client hereby waive its right to collect royalties or any other payment or fees regarding damaged Products that are donated to charity in accordance with this clause.
7.1 Once the Supplier has manufactured the Products, it will:
(a) Package the Products for shipping; and
(b) Arrange for the Products to be shipped to the address specified in the Purchase Order.
7.2 Title and risk for the Products shall pass from the Supplier to the Client at the time of the Products are shipped to the address specified in the relevant Purchase Order.
7.3 The Client acknowledges and agrees that:
(a) It is appointing the Supplier as its agent for the sole express purpose of arranging for shipping of the Products in accordance with the relevant Purchase Order;
(b) The Supplier does not provide transportation or shipping services directly and will engage third parties to provide those services on behalf of the Client;
(c) The actions of the Supplier in arranging for the shipping of any Products under this Agreement will be deemed to be actions taken as agent for the Client, including engaging any third party to provide shipping or transportation services; and
(d) To the maximum extent permitted at law, the Supplier’s liability to the Client as its agent will be limited to liability for compliance with the express terms of this Agreement only and any implied terms or duties under the common law shall be excluded, or limited to the maximum extent permissible if those implied terms or duties cannot be excluded as a whole.
7.4 The Client acknowledges and agrees that any timeframes for delivery specified in the Licenced Software and/or the Website are provided as estimates only and the Supplier makes no warranties about the accuracy of those timeframes for delivery. The Supplier shall have no liability whatsoever to the Client or any Customer in relation to any failure to delivery any Products in accordance with the any timeframes for delivery specified in the Licenced Software or on the Website or any other timeframes for delivery specified by the Supplier through any other means.
(a) It is the sole and absolute owner of all Intellectual Property Rights subsisting in any artwork, design or image (including but not limited to any Intellectual Property Rights in any trade marks or trade names incorporated into the artwork design or image) that it makes available for sale in connection with the Licenced Software, or if the Client is not the owner, that the Client has express authority and written permission to use and reproduce such artwork, design or image from all persons with Intellectual Property Rights subsisting in that artwork, design or image;
(b) It will not make any artwork, design or image that infringes or is likely to infringe upon the Intellectual Property Rights of any third party available for sale on the Client Store or otherwise in connection with the Licenced Software;
(c) It will not make any artwork, design or image available for sale on the Client Store or otherwise in connection with the Licenced Software that includes any words, images or subject matter that are:
(i) abusive, threatening, defamatory, obscene, illegal or unlawful; or
(ii) otherwise likely to damage the reputation or goodwill of the Supplier by association with those words, images or subject matter;
(d) it will not use the Licenced Software or the Services in connection with any actions that are unlawful or illegal, including but not limited to any actions that are fraudulent, false or misleading or which constitute false or misleading representations or misleading and deceptive conduct under the Competition and Consumer Act 2010 (Cth) (or any analogous provisions under any law in any other jurisdiction);
(e) It will not submit any Purchase Order to the Supplier that requires the Supplier to undertake any act that:
(i) Infringes or is likely to infringe upon the Intellectual Property Rights of any third party, including but not limited to requiring the Supplier to produce a Product bearing an artwork, design or image that infringes upon any copyright or trademarks of any third party; or
(ii) is unlawful under the laws of:
(A) the Jurisdiction;
(B) the jurisdiction where the Client resides;
(C) the jurisdiction where the relevant Customer resides; or
(D) any other jurisdiction which has laws that apply, or are likely to apply in the reasonable opinion of the Supplier, to the provision of the Licenced Software and/or the provision of the Services in accordance with this Agreement.
(f) It is not the target of any trade, financial or economic sanctions and it does not appear on a sanctions related list, including lists maintained by the U.S. Department of Treasury’s Office of Foreign Assets Control, the U.S. Department of State, the U.S. Department of Commerce, the European Union, or Her Majesty’s Treasury of the United Kingdom;
(g) It will not export, re-export, or otherwise transfer any Products to countries or territories that are the target of comprehensive embargoes or sanctions (including Cuba, Iran, Syria, North Korea, and the Crimea region) or parties on the sanctions-related lists referenced in clause 8.1(f) above;
(h) It will not interfere with or try to disrupt the Licenced Software, the Services or Constant Supply’s business in general, including but not limited to attempting to upload data containing a virus or other harmful code into the Licenced Software or the Website; and
(i) It will not use the Licenced Software to send, knowingly receive, upload, download, use, or re-use any material which does not comply with this Agreement; or to engage in any other conduct that restricts or inhibits anyone's use or enjoyment of the Licenced Software or the Services, or which, as determined by the Supplier, may harm the Supplier (including its related parties) or expose it to liability.
8.2 The Client agrees to grant the Supplier a non-exclusive, worldwide, royalty-free, irrevocable, sub-licensable, perpetual licence to use, display, edit, modify, reproduce, distribute, store and prepare derivative works of any artwork, design or image uploaded to the Licenced Software to provide the Services and to promote the Licenced Software and/or the Services, in any formats and through any mediums, including on any website operated by the Supplier or any related party of the Supplier, on any third party website, advertising medium or social media. The Client warrants that it has legal standing to grant this licence and that the Supplier performing any of the actions contemplated in this clause will not infringe upon the Intellectual Property Rights of any third party. For the avoidance of doubt, this licence does not entitle the Supplier to sell any goods bearing the artwork, design or image uploaded to the Licenced Software to any party other than the Client.
8.3 The Supplier may:
(a) immediately suspend performance of some or all of its obligations under this Agreement, including but not limited to suspending its obligations to manufacture any Products;
(b) suspend or revoke the Client’s access to the Licenced Software; and/or
(c) immediately terminate this Agreement by written notice to the Client;
where the Client breaches any of its warranties under clause 8.1 or 8.2 above, in the reasonable opinion of the Supplier. For the avoidance of doubt, the Supplier shall not be obligated to provide the Client with any statement of reasons or any other documents where exercising its rights under this clause.
8.4 The Client agrees to indemnify and keep indemnified the Supplier against any and all loss incurred and damage suffered by the Supplier resulting from any breach of any of the Client’s warranties under clauses 8.1 and 8.2, including paying all legal costs incurred by the Supplier on a solicitor and own client basis. For the avoidance of doubt, this indemnity shall survive termination of this Agreement and will continue to bind the Client.
8.5 The Client acknowledges and agrees that the Intellectual Property Rights in any digital works created by the Licenced Software or in connection with the Licenced Software or the Services, including but not limited to any mock-ups, templates, images or other design assets, will be the sole and exclusive property of the Supplier and may only be used by the Client on the Client Store whilst the Agreement remains in effect. Nothing in this Agreement will grant the Client any right to use any of those digital works after termination of this Agreement.
8.6 The Supplier reserves the right to remove, disable or ban any artwork, design or image from the Licenced Software, or to otherwise take any and all steps available to the Supplier to prevent any artwork, design or image from being sold in conjunction with the Licenced Software and/or the Services under this Agreement, which:
(a) infringes, or is likely to infringe, the Intellectual Property Rights of any third party, including but not limited to infringing on the copyright and/or trademarks of any third party; or
(b) is unlawful under the laws of:
(i) the Jurisdiction;
(ii) the jurisdiction where the Client resides;
(iii) any other jurisdiction which has laws that apply, or are likely to apply in the reasonable opinion of the Supplier, to the provision of the Licenced Software and/or the provision of the Services in accordance with this Agreement;
in the sole absolute opinion of the Supplier, without prior notice to the Client.
8.7 Except insofar as is necessary to use the Licenced Software under the Licence, the Client acknowledges that it neither has nor shall secure by this Agreement or by its acts during the continuance of this agreement any right or licence in or to any of any trademark, symbols or trade names in respect thereof, whether or not registered or to any labelling or packaging designs used by the Supplier or by any corporation related to the Supplier in connection with any of the Licenced Software or the Products. Title to all such trademarks, symbols and trade names, and the right to use designs shall at all times remain vested in the Client or its related corporations.
9.1 The Client undertakes to keep secret and confidential all information other than information in the public domain supplied by or obtained from the Supplier or its associated companies and not to disclose or permit the same to be disclosed either during the term of this agreement or at any time thereafter to any third party except with the prior written consent of the Supplier or its successors.
9.2 Where the prior written consent of the Suppliers or its successors has been obtained pursuant to clause 9.1 the Client shall, prior to such disclosure, obtain undertakings from the recipient in terms similar to those provided in clause 9.1.
10.1 Either party (termination party) may terminate this agreement forthwith by written notice to the other:
(a) if such other party shall fail to comply with the terms, provisions, conditions, obligations and requirements contained herein on its part to be performed and observed and shall fail within twenty‑one (21) days of being notified thereof in writing to remedy such breach; or
(b) if such other party shall be wound up or go into liquidation voluntarily or otherwise (except for the purposes of amalgamation or construction).
10.2 The Supplier may terminate this Agreement by 7 days written notice to the Client.
(a) The Licence shall be terminated and the Client will cease to have access to the Licenced Software;
(b) The Client must remove the Licenced Software from the Client Store;
(c) This Agreement will immediately terminate; and
(d) The parties shall no longer be bound by this Agreement, subject to clause 11 below.
11.1 Upon termination of this agreement for any reason whatsoever:
(a) The Supplier shall continue to perform this agreement for any Purchase Order placed and paid prior to termination;
(b) Any Purchase Order that was placed but not paid before termination shall be withdrawn and the Supplier shall have no further performance obligations with respect to those Purchase Orders;
(c) The Client shall have the limited right to access the Licenced Software for thirty (30) from the date of termination for the sole purpose of extracting and storing records relating to its use of the Licenced Software and the Services, including but not limited to any Purchase Orders submitted through the Licenced Software. For the avoidance of doubt, the Client will not have access to any other functionality of the Licenced Software under this limited right of access. Upon expiry of this limited right, the Client shall have no entitlement to access to the Licenced Software or any other records relating to the Client’s use of the Licenced Software or the Services;
(d) The Client shall remain bound by all indemnities provided under this Agreement;
(e) Any clauses of this Agreement that are expressly intended to survive termination of this Agreement will continue to bind the Parties; and
(f) The Parties will otherwise be released from their obligations under this Agreement.
12.1 The Client warrants that all information provided to the Supplier by the Client is accurate, true, not misleading and not deceptive. If the Client provides the Supplier with any information that is inaccurate, false, misleading or deceptive:
(a) The Client shall be liable to the Supplier for damages and losses (including taxes) arising out of the information that is inaccurate, false, misleading or deceptive;
(b) The Client shall be required to indemnify the Supplier against any such damages or losses (including taxes); and
(c) The Supplier shall be entitled to charge the Client for any such damages or losses, including but not limited to charging the Client’s STRIPE Account for the whole or part of those damages or losses.
12.2 If either party hereto elects to terminate this agreement under any of the foregoing provisions, the other party shall not be entitled to demand any damages, compensation or indemnity of any kind as a consequence of any such termination. However, any termination of this agreement shall not affect any of the obligations that may have arisen prior to the date of termination.
12.3 The Client acknowledges and agrees that it is solely responsible for the content of the Client Store and the Supplier makes no warranties about the content of the Client Store. The Client will be solely responsible for any Customer Orders taken by the Client through the Client Store and the Supplier shall have no liability to the Customer whatsoever in relation to any Customer Order or any actions taken by the Client. The Client releases the Supplier from any claims related to products sold by the Client through the Client Store, including claims relating to misrepresentation by the Client to its Customers.
12.4 Notwithstanding any other provision of this Agreement, the Supplier’s maximum liability to the Client under this agreement for any breach of this Agreement shall be limited to and shall not exceed the total Price paid by the Client for the Services under this Agreement in the twelve month period immediately prior to the actions that constitute the breach. The Parties expressly acknowledge and agree that this limitation clause shall limited liability howsoever arising, including liability for negligence.
12.5 The Client acknowledges and agrees that the Licenced Software and the Services are provided “as is”, with all faults and without any kind of warranty (express or implied), except for the warranties provided with respect to Products in clause 13 below. To the fullest extent permitted by law, we are expressly disclaiming any and all warranties or conditions of non-infringement, merchantability, and fitness for a particular purpose, as well as any warranties or conditions implied by a course of performance, course of dealing, or usage of trade, with respect to the Licenced Software and the Services, except for the warranties or conditions provided in section 13 below. Some jurisdictions do not allow limitations on implied warranties or conditions, so the above limitations may not apply to you.
12.6 For the avoidance of doubt, nothing in this Agreement will limit the liability of the Supplier for any consumer guarantees under Division 1 of Part 3-2 of Schedule 2 of the Competition and Consumer Act 2010 (Cth).
12.7 The Client uses the Licenced Software and/or the Services solely at their own risk. The Supplier does not guarantee that:
(a) The Licenced Software and/or the Services will be secure or available at any particular time or location. For the avoidance of doubt, the Supplier shall not be liable for any delays, interruptions or loss of data in connection with the use of the Licenced Software and the Services;
(b) any errors for which the Supplier is responsible will be corrected;
(c) the Licenced Software and/or the Services will always be free of viruses or other harmful materials; or
(d) the results of using the Licenced Software and/or the Services will meet your expectations.
12.8 To the fullest extent permitted by law, the Supplier shall not be liable to the Client or any Customers for any lost profits or revenues, diminution in value, or for any consequential, incidental, indirect, special, exemplary, enhanced, or punitive damages arising out of or relating to the Licenced Software or Services or this Agreement, regardless of:
(a) whether any of the foregoing damages were foreseeable;
(b) whether or not the Client or the Customer were advised of the possibility of incurring any of the foregoing damages;
(c) the legal or equitable theory (contract, tort, or otherwise) upon which the claim is based; and
(d) any specific circumstances of the Client and/or the Customer.
The liability of the Supplier will under no circumstances exceed the actual amount paid by the Client for the Services that the Client has purchased or used through the Licenced Software. Some jurisdictions do not allow the exclusion or limitation of incidental, consequential or certain other damages, so the above limitations and exclusions may not apply to you.
13.1 We warrant that, at the time of delivery of a Product to a Customer, the Product will not be materially defective or damaged (Limited Warranty). The Supplier is providing this Limited Warranty to the Client only and no Customer shall be entitled to rely on the Limited Warranty.
13.2 The limited Warranty specifically excludes liability for damage or defects caused by any of the following:
(a) The actions of the Client, the Customer or any other third party;
(b) Any improper handling (including during shipping), use or storage of the Products;
(c) Any failure to follow any Product instructions;
(d) Any modification to the Product;
(e) Any unauthorised repair to the Product; or
(f) Any external causes such as accidents, fire, flood, “acts of God” or other actions or events beyond our reasonable control; or
(g) Any costs or expenses related to the loss of use of the Product or any other costs or expenses not covered by this Limited Warranties.
13.3 The Limited Warranty stats on the date of delivery of the Product to the Client’s Customer and lasts for thirty (30) days (Warranty Period).
13.4 The Client acknowledges and agrees that its sole remedies for any breach of the Limited Warranty shall be:
(a) The Supplier providing a replacement of the Product free of charge; or
(b) The Supplier refunding the Price paid by the Client for the Products;
with the Supplier retaining the sole discretion to choose the remedy.
13.5 Promptly following delivery of a Product, the Customer must inspect the Product. If a Product is materially defective (including any error by the Supplier in printing) or damaged upon receipt, or if the Customer received the wrong Product, then in order to be eligible for service under this Limited Warranty, the Client must submit a claim within the Warranty Period in compliance with our Return Policy. For the avoidance of doubt, the Customer must contact the Client regarding any defective or damaged Product and with respect to any delivery of the wrong Product and the Client must provide the Supplier with written notice of that defective or damaged or wrong Product. The Customer shall not be entitled to contact the Supplier directly in relation to any claim under the Limited Warranty and the Supplier shall have no obligations to take any further action in relation to any notice received by the Customer whatsoever.
13.6 The remedies described in this clause 13 are the Client’s sole and exclusive remedies (and the Supplier’s entire liability) for any breach of this Limited Warranty. The Supplier’s liability for a defective or damaged product shall under no circumstances exceed the actual amount received by the Supplier for the product, nor shall the Supplier under any circumstances, to the fullest extent permitted by law, be liable for any lost profits or revenues, diminution in value, or for any consequential, incidental, indirect, special, exemplary, enhanced or punitive damages or losses arising out of our products, regardless of:
(a) (i) whether any of the foregoing damages were foreseeable,
(b) (ii) whether or not you were advised of the possibility of incurring any of the foregoing damages,
(c) (iii) the legal or equitable theory (contract, tort, or otherwise) upon which the claim is based, and
(d) (iv) any specific circumstances of you and/or your customer.
Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you. This limited warranty gives you specific legal rights and you may also have other rights, which vary from jurisdiction to jurisdiction. We limit the duration and remedies of all implied warranties or conditions with respect to our products, including without limitation the warranties or conditions of merchantability and fitness for a particular purpose, to the duration of the Warranty Period. Some jurisdictions do not allow limitations on how long an implied warranty or condition lasts, so the above limitation may not apply to you.
14.1 To the fullest extent permitted by law the Client releases the Supplier from any and all claims and demands, as well as any and all damages, losses, liabilities, judgments, costs, reasonable attorneys' fees, and other expenses incurred or suffered by the Supplier, of every kind and nature, known and unknown, relating to or arising out of any right, claim, or matter:
(a) which is disclaimed by the Supplier (or for which the Supplier provides no guarantees) under this Agreement, or
(b) for which the Supplier is otherwise indemnified or released by the Client under this Agreement.
14.2 To the fullest extent permitted by law the Client will defend, indemnify, and hold the Supplier harmless from any claim or demand made by any third party (including, but not limited to, the Customer), as well as any and all damages, losses, liabilities, judgments, costs, reasonable attorneys' fees, and other expenses of every kind and nature, known and unknown, incurred or suffered by the Supplier, relating to or arising out of:
(a) The Client’s breach of this Agreement,
(b) The Client’s use (or misuse) of the Licenced Software or the Services,
(c) your Content,
(d) the infringement by your Content or your account of someone else’s intellectual property or other rights,
(e) your violation of any law or the rights of a third party, or
(f) any claims related to products or items sold by the Client through the Licenced Software or otherwise in conjunction with our Services, including claims for misrepresentations by the Client to its Customers and claims for physical injury or property damage by any of your products or items that are warehoused for the Client by the Supplier.
The Supplier shall retain control its defence against any claim or demand at its absolute unfettered discretion, notwithstanding the obligations of the Client under this indemnity, and the Client must co-operate with the Supplier to the extent requested by the Supplier to allow the Supplier to defend any claims or demands.
14.3 For the avoidance of doubt, each indemnity in this Agreement is in addition to any other indemnity provided by the Client under this Agreement and each indemnity in this Agreement gives rise to a separate, distinct enforceable right of the Supplier to enforce that indemnity, which shall not merge with any other right to enforce any other indemnity.
15.2 The Client warrants that it has all necessary permits and authority to provide the Customer’s personal information to the Supplier in accordance with this Agreement.
(b) Where the Supplier exercises its right to vary the terms of this Agreement under this clause:
(i) The variations will take effect once the Supplier posts amended Terms and Conditions to the Website;
(ii) The Client will be deemed to have consented to the variations where the Client uses the Licenced Software or the Services after the amended Terms and Conditions have been posted;
(iii) The Client’s rights under this Agreement will be suspended until such time as the Client consents to the variations;
(iv) The Client must not use the Licenced Software or the Services after variations take effect unless the Client has consented to the variations; and
(v) If the Client does not wish to continue using the Licenced Software or the Services in accordance with this Agreement as amended under this clause, it must take steps to terminate this Agreement under clause 10.3.
(c) For the avoidance of doubt, nothing in this clause 13.1 imposes any requirement for the Client to consent to any variations before they will take effect, or otherwise makes the exercise of the Supplier’s right under clause 13.1(a) conditional upon the consent or approval of the Client.
(a) The Supplier may, at its own unfettered discretion, transfer or assign this agreement or any right or obligation under this Agreement at any time, including the right to engage third parties to perform any part of the Services. For the avoidance of doubt, the Client expressly acknowledges that the Supplier may engage sub-contractors to perform any of its obligations under this Agreement.
(b) The Client may not assign or transfer this Agreement for any reason whatsoever.
17.3 Force Majeure
(a) No Party shall be liable for any costs or damages due to delay or non-performance under this Agreement arising out of any cause or event beyond such Party’s control, including, without limitation, cessation of services hereunder or any damages resulting therefrom to the other Party as a result of work stoppage, power or other mechanical failure, inability to acquire raw materials, computer virus, natural disaster, governmental action, communication disruption, an outbreak of a pandemic disease or government regulation (“Force Majeure Event”).
(b) During the Force Majeure event all obligations under this Agreement will be suspended until the Force Majeure event has ended. Upon cessation of the Force Majeure event, the Parties will have seven (7) days to perform any obligations suspended during the Force Majeure Event.
(c) Should the Force Majeure event continue for a period of sixty (60) days or longer, any Party may terminate this Agreement.
(b) A notice is deemed to be given and received:
(i) if given in accordance with clause 13.3(a)(i):
(A) Where the email is transmitted before 4:00pm in the place of delivery, on the next business day after the day of delivery in the place of delivery; and
(B) Where the email is transmitted after 4:00pm in the place of delivery, on the second business day occurring after the day of delivery in the place of delivery;
(ii) If given in accordance with clause 13.3(a)(ii); at the time the message or notification becomes available to be viewed by the Client in the Licenced Software;
(iii) if given in accordance with clause 13.3(a)(iii), on the next business day after the day of delivery in the place of delivery; and
(iv) if given in accordance with clause 13.3(a)(iv), five (5) clear business days after the day of posting in the place of delivery.
17.5 Governing Law And Jurisdiction
(a) This agreement shall be governed by and be construed in accordance with the laws of the Jurisdiction for the time being in force, and the parties agree to submit to the non‑exclusive jurisdiction of the courts of that Jurisdiction.
Any waiver in regard to the performance of this Agreement must be in writing and applies only to the specified instance, and must not affect the existence and continued applicability of the terms of it thereafter.
17.7 Further Assurance
Each party shall sign, execute and complete all such further documents as may be necessary to effect, perfect or complete the provisions of this agreement and the transactions to which it relates.
This Agreement may be executed in any number of counterparts, each of which when executed and delivered shall constitute an original of this Agreement, but all the counterparts shall together constitute the same agreement. No counterpart shall be effective until each party has executed at least one counterpart. The Parties to this Agreement may deliver a counterpart to the other Parties using electronic transmission, including but not limited to email.
17.9 GST and Duties
(a) If GST is payable in respect of payments made by the Client to the Supplier under this Agreement, the amounts payable will be increased by the amount of the GST.
(b) All stamp duties and governmental charges arising out of or incidental to this Agreement are the responsibility of and must be paid by the Licensee.
17.10 Entire Understanding
(a) This agreement contains the entire understanding and agreement between the parties as to the subject matter of this Agreement.
(b) All previous negotiations, understandings, representations, warranties (other than warranties set out in this agreement), memoranda or commitments in relation to, or in any way affecting, the subject matter of this agreement are merged in and superseded by this agreement and shall be of no force or effect whatsoever and no party shall be liable to any other party in respect of such matters.
(c) No oral explanation or information provided by any party to another shall affect the meaning or interpretation of this Agreement or constitute any collateral agreement, warranty or understanding between any of the parties.