We Turn Up Group Pty Ltd – Terms & Conditions of Trade

1. Definitions

1.1. “We Turn Up Group Pty Ltd” shall mean Colin Andrew Skinner its successors and assigns or any person acting on behalf of and with the authority of We Turn Up Group Pty Ltd
1.2. “Customer” shall mean the Customer (or any person acting on behalf of and with the authority of the Customer) as described on any quotation, work authorisation or other form as provided by We Turn Up Group Pty Ltd to the Customer.
1.3. “Guarantor” means that person (or persons), or entity, who agrees to be liable for the debts of the Customer on a principal debtor basis.
1.4. “Goods” shall mean Goods supplied by We Turn Up Group Pty Ltd to the Customer (and where the context so permits shall include any supply of Services as hereinafter defined) and are as described on the invoices, quotation, work authorisation or any other forms as provided by We Turn Up Group Pty Ltd to the Customer.
1.5. “Services” shall mean all Services supplied by We Turn Up Group Pty Ltd to the Customer and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).
1.6. “Price” shall mean the price payable for the Goods as agreed between We Turn Up Group Pty Ltd and the Customer in accordance with clause 4 of this contract.

2. The Commonwealth Trade Practices Act 1974 (“TPA”) and Fair Trading Acts (“FTA”)

2.1. Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the TPA or the FTA in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.

3. Acceptance

3.1. Any instructions received by We Turn Up Group Pty Ltd from the Customer for the supply of Goods and/or the Customer’s acceptance of Goods supplied by We Turn Up Group Pty Ltd shall constitute acceptance of the terms and conditions contained herein.
3.2. Where more than one Customer has entered into this agreement, the Customers shall be jointly and severally liable for all payments of the Price.
3.3. Upon acceptance of these terms and conditions by the Customer the terms and conditions are binding and can only be amended with the written consent of We Turn Up Group Pty Ltd.
3.4. The Customer shall give We Turn Up Group Pty Ltd not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer or any change in the Customer’s name and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s address, facsimile number, or business practice). The Customer shall be liable for any loss incurred by We Turn Up Group Pty Ltd as a result of the Customer’s failure to comply with this clause.
3.5. Goods are supplied by We Turn Up Group Pty Ltd only on the terms and conditions of trade herein to the exclusion of anything to the contrary in the terms of the Customer’s order notwithstanding that any such order is placed on terms that purport to override these terms and conditions of trade.
3.6. The Buyer shall ensure that the Seller has clear and free access to the worksite (during all hours allowed by relevant statutory authorities) in order for the Seller to complete the works.

4. Price And Payment

4.1. At We Turn Up Group Pty Ltd’s sole discretion the Price shall be either:
(a) as indicated on invoices provided by We Turn Up Group Pty Ltd to the Customer in respect of Goods supplied; or
(b) We Turn Up Group Pty Ltd’s quoted Price (subject to clause 4.2) which shall be binding upon We Turn Up Group Pty Ltd provided that the Customer shall accept We Turn Up Group Pty Ltd’s quotation in writing within thirty (30) days.
4.2. We Turn Up Group Pty Ltd reserves the right to change the Price in the event of a variation to We Turn Up Group Pty Ltd’s quotation.
4.3. At We Turn Up Group Pty Ltd’s sole discretion a deposit may be required.
4.4. At We Turn Up Group Pty Ltd’s sole discretion:
(a) payment shall be due on delivery of the Goods; or
(b) payment for certain approved Customer’s shall be due either fourteen (14) or thirty (30) days following the date of the invoice.
4.5. Time for payment for the Goods shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due seven (7) days following the date of the invoice.
4.6. Payment will be made by cash, or by cheque, or by bank cheque, or by direct credit, or by any other method as agreed to between the Customer and We Turn Up Group Pty Ltd.
4.7. GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.

5. Delivery Of Goods

5.1. At We Turn Up Group Pty Ltd’s sole discretion delivery of the Goods shall take place when the Customer takes possession of the Goods at the Customer’s nominated address (in the event that the Goods are delivered by We Turn Up Group Pty Ltd or We Turn Up Group Pty Ltd’s nominated carrier).
5.2. At We Turn Up Group Pty Ltd’s sole discretion the costs of delivery are included in the Price.
5.3. The Customer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. In the event that the Customer is unable to take delivery of the Goods as arranged then We Turn Up Group Pty Ltd shall be entitled to charge a reasonable fee for redelivery.
5.4. Delivery of the Goods to a third party nominated by the Customer is deemed to be delivery to the Customer for the purposes of this agreement.
5.5. We Turn Up Group Pty Ltd may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
5.6. The failure of We Turn Up Group Pty Ltd to deliver shall not entitle either party to treat this contract as repudiated.
5.7. We Turn Up Group Pty Ltd shall not be liable for any loss or damage whatever due to failure by We Turn Up Group Pty Ltd to deliver the Goods (or any of them) promptly or at all, where due to circumstances beyond the control of We Turn Up Group Pty Ltd.

6. Risk

6.1. If We Turn Up Group Pty Ltd retains ownership of the Goods nonetheless, all risk for the Goods passes to the Customer on delivery.
6.2. If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, We Turn Up Group Pty Ltd is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by We Turn Up Group Pty Ltd is sufficient evidence of We Turn Up Group Pty Ltd’s rights to receive the insurance proceeds without the need for any person dealing with We Turn Up Group Pty Ltd to make further enquiries.
6.3. The Buyer acknowledges that Goods supplied may exhibit variations in shade, colour, texture, surface and finish, and may fade or change colour over time. The Seller will make every effort to match batches of product supplied in order to minimise such variations but shall not be liable in any way whatsoever where such variations occur.
6.4. It is the intention of the Seller and agreed by the Buyer that it is the responsibility of the Buyer to provide and have erected scaffolding to enable the works to be undertaken (where in the Seller’s opinion it is deemed necessary). It is also agreed that all scaffolding erected will comply with industry safety standards and that any person erecting the scaffolding shall be suitably qualified to ensure its safe and proper erection and where necessary shall hold a current certificate of competency and/or be fully licensed.
6.5. The Buyer agrees to remove any furniture, furnishings or personal goods from the vicinity of the works and agrees that the Seller shall not be liable for any damage caused to those items through the Buyers failure to comply with this clause.

7. Title

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

8. Defects

8.1. The Customer shall inspect the Goods on delivery and shall within seven (7) days of delivery (time being of the essence) notify We Turn Up Group Pty Ltd of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer shall afford We Turn Up Group Pty Ltd an opportunity to inspect the Goods within a reasonable time following delivery if the Customer believes the Goods are defective in any way. If the Customer shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which We Turn Up Group Pty Ltd has agreed in writing that the Customer is entitled to reject, We Turn Up Group Pty Ltd’s liability is limited to either (at We Turn Up Group Pty Ltd’s discretion) replacing the Goods or repairing the Goods except where the Customer has acquired Goods as a consumer within the meaning of the Trade Practices Act 1974 (CWlth) or the Fair Trading Acts of the relevant state or territories of Australia, and is therefore also entitled to, at the consumer’s discretion either a refund of the purchase price of the Goods, or repair of the Goods, or replacement of the Goods.
8.2. Goods will not be accepted for return other than in accordance with 8.1 above.

9. Warranty

9.1. Subject to the conditions of warranty set out in clause 9.2 We Turn Up Group Pty Ltd warrants that if any defect in any workmanship of We Turn Up Group Pty Ltd becomes apparent and is reported to We Turn Up Group Pty Ltd within twelve (12) months of the date of delivery (time being of the essence) then We Turn Up Group Pty Ltd will either (at We Turn Up Group Pty Ltd’s sole discretion) replace or remedy the workmanship.
9.2. The conditions applicable to the warranty given by clause 9.1 are:
(a) the warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
(i) failure on the part of the Customer to properly maintain any Goods; or
(ii) failure on the part of the Customer to follow any instructions or guidelines provided by We Turn Up Group Pty Ltd; or
(iii) any use of any Goods otherwise than for any application specified on a quote or order form; or
(iv) the continued use of any Goods after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or
(v) fair wear and tear, any accident or act of God.
(b) the warranty shall cease and We Turn Up Group Pty Ltd shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without We Turn Up Group Pty Ltd’s consent.
(c) in respect of all claims We Turn Up Group Pty Ltd shall not be liable to compensate the Customer for any delay in either replacing or remedying the workmanship or in properly assessing the Customer’s claim.
9.3. For Goods not manufactured by We Turn Up Group Pty Ltd, the warranty shall be the current warranty provided by the manufacturer of the Goods. We Turn Up Group Pty Ltd shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Goods.
9.4. All items have 12 months manufactory warrantee date of insulation

10. Intellectual Property

10.1. Where We Turn Up Group Pty Ltd has designed, drawn or written Goods for the Customer, then the copyright in those designs and drawings and documents shall remain vested in We Turn Up Group Pty Ltd, and shall only be used by the Customer at We Turn Up Group Pty Ltd’s discretion.
10.2. The Customer warrants that all designs or instructions to We Turn Up Group Pty Ltd will not cause We Turn Up Group Pty Ltd to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify We Turn Up Group Pty Ltd against any action taken by a third party against We Turn Up Group Pty Ltd in respect of any such infringement.

11. Default & Consequences of Default

11.1. 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 one half percent (2.5%) per calendar month and such interest shall compound monthly at such a rate after as well as before any judgment.
11.2. If the Customer defaults in payment of any invoice when due, the Customer shall indemnify We Turn Up Group Pty Ltd from and against all costs and disbursements incurred by We Turn Up Group Pty Ltd in pursuing the debt including legal costs on a solicitor and own client basis and We Turn Up Group Pty Ltd’s collection agency costs.
11.3. Without prejudice to any other remedies We Turn Up Group Pty Ltd may have, if at any time the Customer is in breach of any obligation (including those relating to payment), We Turn Up Group Pty Ltd may suspend or terminate the supply of Goods to the Customer and any of its other obligations under the terms and conditions. We Turn Up Group Pty Ltd will not be liable to the Customer for any loss or damage the Customer suffers because We Turn Up Group Pty Ltd has exercised its rights under this clause.
11.4. If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten percent (10.00%) of the amount overdue (up to a maximum of two hundred dollars ($200.00)) shall be levied for administration fees which sum shall become immediately due and payable.
11.5. Without prejudice to We Turn Up Group Pty Ltd’s other remedies at law We Turn Up Group Pty Ltd shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to We Turn Up Group Pty Ltd shall, whether or not due for payment, become immediately payable in the event that:
(a) any money payable to We Turn Up Group Pty Ltd becomes overdue, or in We Turn Up Group Pty Ltd’s opinion the Customer will be unable to meet its payments as they fall due; or
(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; 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.

12. Security And Charge

12.1. Despite anything to the contrary contained herein or any other rights which We Turn Up Group Pty Ltd may have howsoever:
(a) where the Customer and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Customer and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to We Turn Up Group Pty Ltd or We Turn Up Group Pty Ltd’s nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Customer and/or the Guarantor acknowledge and agree that We Turn Up Group Pty Ltd (or We Turn Up Group Pty Ltd’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 We Turn Up Group Pty Ltd elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Customer and/or Guarantor shall indemnify We Turn Up Group Pty Ltd from and against all We Turn Up Group Pty Ltd’s costs and disbursements including legal costs on a solicitor and own client basis.
(c) the Customer and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint We Turn Up Group Pty Ltd or We Turn Up Group Pty Ltd’s nominee as the Customer’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 12.1.

13. Cancellation

13.1. We Turn Up Group Pty Ltd may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Customer. On giving such notice We Turn Up Group Pty Ltd shall repay to the Customer any sums paid in respect of the Price. We Turn Up Group Pty Ltd shall not be liable for any loss or damage whatever arising from such cancellation.
13.2. In the event that the Customer cancels delivery of Goods the Customer shall be liable for any loss incurred by We Turn Up Group Pty Ltd (including, but not limited to, any loss of profits) up to the time of cancellation.

14. Privacy Act 1988

14.1. The Customer and/or the Guarantor/s agree for We Turn Up Group Pty Ltd to obtain from a credit reporting agency a credit report containing personal credit information about the Customer and Guarantor/s in relation to credit provided by We Turn Up Group Pty Ltd.
14.2. The Customer and/or the Guarantor/s agree that We Turn Up Group Pty Ltd may exchange information about the Customer and the Guarantor/s with those credit providers either named as trade referees by the Customer or named in a consumer credit report issued by a credit reporting agency for the following purposes:
(a) to assess an application by Customer; and/or
(b) to notify other credit providers of a default by the Customer; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Customer is in default with other credit providers; and/or
(d) to assess the credit worthiness of Customer and/or Guarantor/s.
14.3. The Customer consents to We Turn Up Group Pty Ltd being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
14.4. The Customer agrees that personal credit information provided may be used and retained by We Turn Up Group Pty Ltd for the following purposes and for other purposes as shall be agreed between the Customer and We Turn Up Group Pty Ltd or required by law from time to time:
(a) provision of Goods; and/or
(b) marketing of Goods by We Turn Up Group Pty Ltd, its agents or distributors in relation to the Goods; and/or
(c) analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to provision of Goods; and/or
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by Customer; and/or
(e) enabling the daily operation of Customer’s account and/or the collection of amounts outstanding in the Customer’s account in relation to the Goods.
14.5. We Turn Up Group Pty Ltd may give information about the Customer to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Customer; and/or
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Customer.

15. Building and Construction Industry Security of Payments Act 1999

15.1. At We Turn Up Group Pty Ltd’s sole discretion, if there are any disputes or claims for unpaid Goods and/or Services then the provisions of the Building and Construction Industry Security of Payments Act 1999 may apply.
15.2. Nothing in this agreement is intended to have the affect of contracting out of any applicable provisions of the Building and Construction Industry Security of Payments Act 1999 of New South Wales, except to the extent permitted by the Act where applicable.

16. General

16.1. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity,
existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
16.2. These terms and conditions and any contract to which they apply shall be governed by the laws of New South
Wales and are subject to the jurisdiction of the courts of New South Wales.
16.3. We Turn Up Group Pty Ltd shall be under no liability whatever to the Customer for any indirect loss and/or
expense (including loss of profit) suffered by the Customer arising out of a breach by We Turn Up Group Pty
Ltd of these terms and conditions.
16.4. In the event of any breach of this contract by We Turn Up Group Pty Ltd the remedies of the Customer shall be
limited to damages which under no circumstances shall exceed the Price of the Goods.
16.5. 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 We Turn Up Group Pty Ltd.
16.6. We Turn Up Group Pty Ltd may license or sub-contract all or any part of its rights and obligations without the
Customer’s consent.
16.7. The Customer agrees that We Turn Up Group Pty Ltd may review these terms and conditions at any time. If,
following any such review, there is to be any change to these terms and conditions, then that change will take
effect from the date on which We Turn Up Group Pty Ltd notifies the Customer of such change.
16.8. 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.
16.9. The failure by We Turn Up Group Pty Ltd to enforce any provision of these terms and conditions shall not be
treated as a waiver of that provision, nor shall it affect We Turn Up Group Pty Ltd’s right to subsequently
enforce that provision.