Terms & Conditions

1. Definitions

1.1 "Build Services” means the build services referred to between the parties in the purchase order.

1.2 “Contract” means the terms and conditions contained in this document, together with any quotation, order, invoice or other document or amendments expressed to be supplemental to this Contract.

1.3 “Company” means Pop Up People Co ABN 82 645 689, its successors and assigns or any person acting on behalf of and with the authority of Pop Up People Co ABN 82 645 689.

1.4 "Confidential Information” means information of a confidential nature whether oral, written or in electronic form including, but not limited to, this Contract, either party’s intellectual property, operational information, know-how, trade secrets, financial and commercial affairs, contracts, client information and pricing details.

1.5 “Cookies” means small files which are stored on a user’s computer. They are designed to hold a modest amount of data (including Personal Information) specific to a particular client and website, and can be accessed either by the web server or the client’s computer.

1.6 “Claim” means any claim, right of action or demand (or similar legal entitlement), in any jurisdiction, including but not limited to at law, in tort (including negligence), under statute, in equity including quantum meruit or restitution based on unjust enrichment, for rectification, frustration or for any other legal equitable remedy.

1.7 “Customer” means the person/s, entities or any person acting on behalf of and with the authority of the Customer requesting the Company to provide the Services as specified in any proposal, quotation, order, invoice or other documentation, and: (a) if there is more than one Customer, is a reference to each Customer jointly and severally; and (b) if the Customer is a partnership, it shall bind each partner jointly and severally; and (c) if the Customer is a part of a Trust, shall be bound in their own capacity and in their capacity as a trustee; and (d) includes the Customer’s executors, administrators, successors and permitted assigns.

1.8 “GST” means Services and Services Tax (GST) as defined within the “A New Tax System (Services and Services Tax) Act 1999” (Cth).

1.9 “Intellectual Property” means the Company’s intellectual property licensed to or owned by the Company including copyright, patent rights, trademark rights, design rights, formulae, know-how, trade secrets, business processes, software and any and all other forms of Intellectual Property, wheresoever and howsoever arising, whether registered or unregistered, anywhere in the world.

1.10 “Price” means the Price payable (plus any GST where applicable) for the Service as agreed between the Company and the Customer in accordance with clause 5 below.

1.11 “PPSA” means the Personal Property and Securities Act 2009 (Cth) as amended from time to time.

1.12 “Services” means any services agreed to in a quotation or in writing between the Customer and the Company and the Build Services supplied by the Company to the Customer at the Customer’s request from time to time.

 

2. Acceptance

2.1 The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by this Contract if the Customer places an order for, or accepts and of the Services provided by the Company.

2.2 In the event of any inconsistency between the terms and conditions of this Contract and any other prior document or schedule that the parties have entered into, the terms of this Contract shall prevail.

2.3 Any amendment to the terms and conditions contained in this Contract may be amended by the Company giving written notice to the Customer.

2.4 The Customer acknowledges that the supply of Services on credit shall not take effect until the Customer has completed a credit application with the Company and it has been approved with a credit limit established for the account.

2.5 In the event that the supply of Services request exceeds the Customer’s credit limit and/or the account exceeds the payment terms, the Company reserves the right to refuse delivery of the Services.

2.6 In the event that the Services provided by the Company are the subject of an insurance claim that the Customer has made, then the Customer shall be responsible for the payment of any monies payable to the insurance company and agrees to honour their obligation for payment for such transactions invoiced by the Company and shall ensure payment is made by the due date irrespective of whether the insurance claim is successful.

2.7 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 14 of the Electronic Transactions (Queensland) Act 2001 or any other applicable provisions of that Act or any Regulations referred to in that Act.

 

3. Errors & Omissions

3.1 The Customer acknowledges and accepts that the Company shall not be liable in respect of any alleged or actual error(s) and/or omission(s): (a) resulting from an inadvertent mistake made by the Company in the formation and/or administration of this Contract; and/or (b) contained/omitted in/from any literature (hard copy and/or electronic) supplied by the Company in respect of the Services.

3.2 In the event such an error and/or omission occurs in accordance with clause 3.1, and is not attributable to the negligence and/or wilful misconduct of the Company; the Customer shall not be entitled to treat this Contract as repudiated nor render it invalid. 

 

4. Change in Control

4.1 The Customer shall give the Company not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s name, address, contact phone or fax number/s, change of trustees or business practice). The Customer shall be liable for any loss incurred by the Company as a result of the Customer’s failure to comply with this clause.

 

5. Price and Payment

5.1 At the Company’ sole discretion, the Price shall be either: (a) as indicated on invoices provided by the Company to the Customer in respect of the Services supplied; or (b) the Price as at the date of delivery of the Services according to the Company’ current price list; or (c) the Company’ estimated Price (subject to clause 6) which shall not be deemed binding upon the Company as the actual Price can only be determined upon completion of the Services. The Company undertakes to keep the Customer informed should the actual Price look likely to exceed the original estimate.

5.2 At the Company’ sole discretion, a non-refundable deposit may be required, the amount or percentage of which will be stipulated at the time of the Customer’s order and shall become immediately due and payable.

5.3 At the Company’ sole discretion: (a) payment shall be due on completion of the Services; or (b) payment for approved Customers shall be due seven (7) days following the end of the month in which a statement is posted to the Customer’s address or address for notices.

5.4 Payment will be made by cash, or by cheque, bank cheque, electronic/on-line banking, credit card (a surcharge may apply per transaction of the Price), or by any other method as agreed to between the Customer and the Company.

5.5 The Company may in its discretion allocate any payment received from the Customer towards any invoice that the Company determines and may do so at the time of receipt or at any time afterwards. On any default by the Customer the Company may re-allocate any payments previously received and allocated. In the absence of any payment allocation by the Company, payment will be deemed to be allocated in such manner as preserves the maximum value of the Company’ Purchase Money Security Interest (as defined in the PPSA) in the Services.

5.6 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 the Company nor to withhold payment of any invoice because part of that invoice is in dispute.

5.7 Unless otherwise stated the Price does not include GST. In addition to the Price the Customer must pay to the Company an amount equal to any GST the Company must pay for any supply by the Company under this or any other agreement for the sale of the Services. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition, the Customer must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.

 

6. Additional Charges

6.1 the Company reserves the right to change the Price: (a) if a variation to the Services which are to be provided is requested; or (b) in the event of increases to the Company in the cost of labour or Services, or fluctuations in currency exchange rates, which are beyond the Company’ control.

 

7. Delivery

7.1 At the Company’ sole discretion delivery of the Services shall take place when: (a) the Company provides the Services at the Company’ address; or (b) the Company provides the Services at the Customer’s nominated address.

7.2 Where the Company is to provide any Services at the Customer’s nominated address then the Customer shall be liable for all costs incurred by the Company from the time they depart from, and until they return to, their normal place of work.

7.3 Any time specified by the Company for delivery of the Services is an estimate only and the Company will not be liable for any loss or damage incurred by the Customer as a result of delivery being late. However, both parties agree that they shall make every endeavour to enable the Services to be delivered at the time and place as was arranged between both parties. In the event that the Company is unable to supply the Services as agreed solely due to any action or inaction of the Customer, then the Company shall be entitled to charge a reasonable fee for redelivery and/or storage.

 

8. Risk

8.1 Risk of damage to or loss of the Services passes to the Customer on Delivery and the Customer must insure the Services on or before Delivery.

8.2 If any of the Services are damaged or destroyed following delivery and/or prior to ownership passing to the Customer, the Company is entitled to receive all insurance proceeds payable for the Services. The production of this Contract by the Company is sufficient evidence of the Company’ rights to receive the insurance proceeds without the need for any person dealing with the Company to make further enquiries.

8.3 If the Customer requests the Company to leave Services outside the Company’ premises for collection or to deliver the Services to an unattended location, then such Services shall be left at the Customer’s sole risk.

8.4 The Customer is responsible for any loss or damage to the Services during the period of hire.

8.5 The Customer will use the Services for the intended use.

 

9. Title of Build Services

9.1 the Company and the Customer agree that ownership of the Build Services shall not pass until: (a) the Customer has paid the Company all amounts owing to the Company; and (b) the Customer has met all of its other obligations to the Company.

9.2 Receipt by the Company 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.

9.3 It is further agreed that:

(a) until ownership of the Build Services passes to the Customer in accordance with clause 9.1 that the Customer is only a bailee of the Build Services and must return the Build Services to the Company on request.

(b) the Customer holds the benefit of the Customer’s insurance of the Build Services on trust for the Company and must pay to the Company the proceeds of any insurance in the event of the Build Services being lost, damaged or destroyed.

(c) the Customer must not sell, dispose, or otherwise part with possession of the Build Services other than in the ordinary course of business and for market value. If the Customer sells, disposes or parts with possession of the Build Services then the Customer must hold the proceeds of any such act on trust for the Company and must pay or deliver the proceeds to the Company on demand.

(d) the Customer should not convert or process the Build Services or intermix them with other Services but if the Customer does so then the Customer holds the resulting product on trust for the benefit of the Company and must sell, dispose of or return the resulting product to the Company as it so directs.

(e) the Customer irrevocably authorises the Company to enter any premises where the Company believes the Build Services are kept and recover possession of the Build Services.

(f) the Company may recover possession of any Build Services in transit whether or not delivery has occurred.

(g) the Customer shall not charge or grant an encumbrance over the Build Services nor grant nor otherwise give away any interest in the Build Services while they remain the property of the Company.

(h) the Company may commence proceedings to recover the Price of the Build Services sold notwithstanding that ownership of the Build Services has not passed to the Customer.

 

10. Storage

10.1 If the Services are or include the Company storing any possessions of the Customer, the Customer acknowledges the Customers possessions are being stored at the risk of the Customer at all times.

10.2 The Company is providing a space for the Customer to store possessions and is not responsible for loss or damage of the Customer’s possessions.

10.3 The Customer must maintain insurance over the Customers possessions at all times and acknowledges that the Company is not required to and will not insure the Customers possessions.

10.4 The Customer can access and remove their possessions at any time by providing reasonable notice for access to the Company’s warehouse.

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11. Personal Property Securities Act 2009 (“PPSA”)

11.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA. 1.2 Upon assenting to this Contract in writing the Customer acknowledges and agrees that this Contract constitutes a security agreement for the purposes of the PPSA and creates a security interest in all Services and/or collateral (account) – being a monetary obligation of the Customer to the Company for Services – that have previously been supplied and that will be supplied in the future by the Company to the Customer.

11.2 The Customer undertakes to:

(a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which the Company may reasonably require to:

(i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;

(ii) register any other document required to be registered by the PPSA; or

(iii)correct a defect in a statement referred to in clause 1.2(a)(i) or 1.2(a)(ii);

(b) indemnify, and upon demand reimburse, the Company for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Services charged thereby; (c) not register a financing change statement in respect of a security interest without the prior written consent of the Company;

(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Services and/or collateral (account) in favour of a third party without the prior written consent of the Company;

(e) immediately advise the Company of any material change in its business practices of selling the Services which would result in a change in the nature of proceeds derived from such sales.

11.3 The Company and the Customer agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by this Contract.

11.4 The Customer waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.

11.5 The Customer waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.

11.6 Unless otherwise agreed to in writing by the Company, the Customer waives their right to receive a verification statement in accordance with section 157 of the PPSA.

11.7 The Customer must unconditionally ratify any actions taken by the Company under clauses 10.2 to 10.4.

11.8 Subject to any express provisions to the contrary (including those contained in this clause 10) nothing in this Contract is intended to have the effect of contracting out of any of the provisions of the PPSA.

 

12. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)

12.1 The Customer must inspect the Services on delivery and must within two (2) days of delivery notify the Company in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Customer must notify any other alleged defect in the Services as soon as reasonably possible after any such defect becomes evident. Upon such notification, the Customer must allow the Company to inspect the Services.

12.2 Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into this Contract (Non-Excluded Guarantees).

12.3 The Company acknowledges that nothing in this Contract purports to modify or exclude the Non-Excluded Guarantees.

12.4 Except as expressly set out in this Contract or in respect of the Non-Excluded Guarantees, the Company makes no warranties or other representations under this Contract including but not limited to the quality or suitability of the Services. The Company’s liability in respect of these warranties is limited to the fullest extent permitted by law.

12.5 If the Customer is a consumer within the meaning of the CCA, the Company’ liability is limited to the extent permitted by section 64A of Schedule 2.

12.6 If the Company is required to replace the Services under this clause or the CCA, but is unable to do so, the Company may refund any money the Customer has paid for the Services.

12.7 If the Customer is not a consumer within the meaning of the CCA, the Company’ liability for any defect or damage in the Services is: (a) limited to the value of any express warranty or warranty documentation provided to the Customer by the Company at the Company’ sole discretion; (b) limited to any warranty to which the Company is entitled, if the Company did not manufacture the Services; (c) otherwise negated absolutely.

12.8 Subject to this clause 11, returns will only be accepted provided that: (a) the Customer has complied with the provisions of clause 11.1; and (b) the Company has agreed that the Services are defective; and (c) the Services are returned within a reasonable time at the Customer’s cost (if that cost is not significant); and (d) the Services are returned in as close a condition to that in which they were delivered as is possible.

12.9 Notwithstanding clauses 11.1 to 11.8 but subject to the CCA, the Company shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of: (a) the Customer failing to properly maintain or store any Services; (b) the Customer using the Services for any purpose other than that for which they were designed; (c) the Customer continuing the use of any Services after any defect became apparent or should have become apparent to a reasonably prudent operator or user; (d) the Customer failing to follow any instructions or guidelines provided by the Company; (e) fair wear and tear, any accident, or act of God.

12.10 Notwithstanding anything contained in this clause if the Company is required by a law to accept a return then the Company will only accept a return on the conditions imposed by that law.

 

13. Limitation of Liability

13.1 The Customer releases the Company for any liability for the Services.

13.2 The Customer acknowledges once the Services have been delivered (to the Customer’s address or Customer’s nominated address) or installed (or during storage where applicable), the Customer is responsible for and liable for the maintenance of and quality control of the Services.

13.3 The Customer indemnifies the Company against all Claims made against the Company for losses, damages, costs or expenses which the Company suffers or incurs out of or in connection with a breach of the Customers obligations under these Terms and Conditions.

13.4 The Customer releases the Company from any damage to persons (including death) or property caused by the Services once the Services are in possession of the Customer.

 

14. Intellectual Property

14.1 The Company is licensed to use and/or owns the Intellectual Property and in particular is licensed to use the Intellectual Property required for the manufacture of the Services.

14.2 The Customer agrees that it will not at any time, whether while this Contract is current or after its termination, attempt to disclose to a third party, copy or reproduce the Intellectual Property. If such unauthorised use or disclosure occurs the Customers agree that the Company will be entitled to take action against the Customer including cancelling this Contract and taking legal action including injunction proceedings.

14.3 Where the Company has developed Services specifically for the Customer, then the copyright in any designs and drawings and formulae shall remain the property of the Company. The Customer, if required by the Company, will assign any interest it may have in such designs, drawings and formulae to the Company for consideration of $1.00. Under no circumstances may such designs, drawings and formulae be used by the Customer without the express written approval of the Company.

14.4 The Customer warrants that all designs, specifications or instructions given to the Company will not cause the Company to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify the Company against any action taken by a third party against the Company in respect of any such infringement.

 

15. Default and Consequences of Default

15.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at the Company’ sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.

15.2 If the Customer owes the Company any money the Customer shall indemnify the Customer from and against all costs and disbursements incurred by the Company in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own Customer basis, the Company’s’ contract default fees, and bank dishonour fees).

15.3 Further to any other rights or remedies the Company may have under this Contract, if a Customer has made payment to the Company by credit card, and the transaction is subsequently reversed, the Customer shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by the Company under this clause 10, where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Customer’s obligations under this Contract.

15.4 Without prejudice to the Company’ other remedies at law the Company shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to the Company shall, whether or not due for payment, become immediately payable if: (a) any money payable to the Company becomes overdue, or in the Company’ opinion the Customer will be unable to make a payment when it falls due; (b) the Customer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors (other than as specified in the amendments to the Corporations Act 2001 (Cth) enacted by Part 2 of the Treasury Law Amendment (2017 Enterprise Incentives No. 2) Act 2017 (Cth)); or (c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer (other than as specified in the amendments to the Corporations Act 2001 (Cth) enacted by Part 2 of the Treasury Law Amendment (2017 Enterprise Incentives No. 2) Act 2017 (Cth)).

 

16. Security and Charge

16.1 Despite anything to the contrary contained herein or any other rights which the Company may have howsoever:

(a) where the Customer is the owner of land, realty or any other asset capable of being charged, the Customer agrees to mortgage and/or charge all of their joint and/or several interests in the said land, realty or any other asset to the Company or the Company’s’ nominee to secure all amounts and other monetary obligations payable under this Contract. The Customer agrees that the Company (or it’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations payable hereunder have been met.

(b) should the Company elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Customer shall indemnify the Company from and against all costs and disbursements including legal costs on a solicitor and own Customer basis.

(c) the Customer agrees to irrevocably nominate constitute and appoint the Company or the Company’s nominee as the Customer’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 14.1.

 

17. Cancellation

17.1 Without prejudice to any other remedies the Company may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under this Contract the Company may suspend or terminate the supply of Services to the Customer. The Company will not be liable to the Customer for any loss or damage the Customer suffers because the Company has exercised its rights under this clause.

17.2 The Company may cancel any Contract to which this Contract apply or cancel delivery of Services at any time before the Services are delivered by giving written notice to the Customer. On giving such notice the Company shall repay to the Customer any sums paid in respect of the Price. The Company shall not be liable for any loss or damage howsoever arising from such cancellation.

17.3 In the event that the Customer cancels the delivery of Services the Customer shall be liable for any loss incurred by the Company (including, but not limited to, any loss of profits) up to the time of cancellation.

 

18. Service of Notices

18.1 Any written notice given under this Contract shall be deemed to have been given and received: (a) by handing the notice to the other party, in person; (a) by leaving it at the address of the other party as stated in this Contract; (b) by sending it by registered post to the address of the other party as stated in this Contract; (c) if sent by facsimile transmission to the fax number of the other party as stated in this Contract (if any), on receipt of confirmation of the transmission; (d) if sent by email to the other party’s last known email address.

18.2 Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.

 

19. Trusts

19.1 If the Customer at any time upon or subsequent to entering in to the Contract is acting in the capacity of trustee of any trust (“Trust”) then whether or not the Company may have notice of the Trust, the Customer covenants with the Company as follows:

(e) the Contract extends to all rights of indemnity which the Customer now or subsequently may have against the Trust and the trust fund;

(a) the Customer has full and complete power and authority under the Trust to enter into the Contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Customer against the Trust or the trust fund. The Customer will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity;

(b) the Customer will not without consent in writing of the Company (the Company will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events:

(i) the removal, replacement or retirement of the Customer as trustee of the Trust;

(ii) any alteration to or variation of the terms of the Trust;

(iii)any advancement or distribution of capital of the Trust; or (iv)any resettlement of the trust property.

 

20. Dispute Resolution

20.1 If a dispute arises between the parties to this Contract then either party shall send to the other party a notice of dispute in writing adequately identifying and providing details of the dispute. Within fourteen (14) days after service of a notice of dispute, the parties shall confer at least once, to attempt to resolve the dispute. At any such conference each party shall be represented by a person having authority to agree to a resolution of the dispute. In the event that the dispute cannot be so resolved either party may by further notice in writing delivered by hand or sent by certified mail to the other party refer such dispute to mediation. Any mediation shall be:

(c) referred to a mediator to be nominated by the President of the Institute of Arbitrators and Mediators Australia; and

(d) conducted in accordance with the Institute of Arbitrators and Mediators Australia Rules for the Conduct of Commercial Mediation.

 

21. General

21.1 The failure by either party to enforce any provision of this Contract shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of this Contract shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.

21.2 This Contract to which they apply shall be governed by the laws of Queensland, the state in which the Company has its principal place of business, and are subject to the jurisdiction of the Brisbane Courts in Queensland.

21.3 The Company 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 the Company of the terms of this Contract.

21.4 The Company may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Customer’s consent.

21.5 The Customer may not licence or assign its interest in the Contract without the written approval of the Company.

21.6 The Customer agrees that the Company may amend the terms of this Contract for subsequent future contracts with the Customer by disclosing such to the Customer in writing. These changes shall be deemed to take effect from the date on which the Customer accepts such changes, or otherwise at such time as the Customer makes a further request for the Company to provide Services to the Customer.

21.7 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.

21.8 Both parties warrant that they have the power to enter into this Contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this Contract creates binding and valid legal obligations on them.

21.9 If any provision of this Contract is held to be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired. 

21.10 Any reference in this Contract to any Statute or Statutory Provision includes a reference to that Statute or Statutory Provision as from time to time amended, extended or re-enacted.