Consignment Agreement Terms and Conditions

Uturn Digital Pty Ltd (ACN 652 399 623) (Uturn Digital) operates the website www.theturn.com.au (the 'Website'), which sells items on a consignment basis. You own the item(s) described in the Consignment Form. You agree to provide the item(s) to Uturn Digital for sale or return on the terms and conditions set out in this Consignment Agreement.

OPERATIVE PROVISIONS

1. Acceptable Items

(a) Uturn Digital sells, on a consignment basis, items from the brands listed on the Website (the List). The List is updated from time to time.

(b) Any items to be sold on the Website must be in a saleable condition. We do not accept items which are stained, marked, damaged, have an odour, are missing buttons or which are not authentic.

(c) Where items are not considered acceptable for sale (either not being in saleable condition or not a brand on our List), Uturn Digital will notify you by email and, at your option, the item may be returned to you (at your expense) or recycled.

(d) Uturn Digital accepts items for sale on a consignment basis from individuals and businesses.

2. Procedure

(a) To submit an item (or items) for sale on a consignment basis on the Website, you are required to register for an account on the consignment portal. We will collect the following personal information from you as part of the registration process:
 

(i) your name;
(ii) email address;
(iii) mailing address;
(iv) telephone number;
(v) preferred user name; and
(vi) password

(b) You warrant that you are of legal age and that any information you give to Uturn Digital in the course of completing the registration process will be accurate, correct and up to date.

(c) To submit an item (or items) for sale on a consignment basis on the Website, you must complete the Consignment Form with details of the specific items (Items) and accept the terms and conditions of this Consignment Agreement.

(d) Uturn Digital will then send you a courier bag for you to send the Items to ‘The Turn’ at 95 Bonds Road, Punchbowl NSW 2196.

(e) Once Uturn Digital has received the Items, we will:

(i) send you an email notification; and
(ii) assess each of the Items to check that the Items are in a saleable condition and are a brand on the List.

(f) If an Item is acceptable, we will notify you and the Item will be listed for sale on the Website.

(g) You may log into your account to view the status of your Items.

3. Agreement to sell

(a) In consideration of delivery of the Items by you to Uturn Digital and the Items being deemed acceptable for sale by Uturn Digital, Uturn Digital agrees to use reasonable endeavours to sell the Items.

(b) You acknowledge and agree that Uturn Digital will set the sale price for the Items.

4. Events upon sale

(a) You will be notified when your Item is sold.

(b) You acknowledge that Items which are purchased on the Website may be returned by the purchaser to Uturn Digital during the return period being a period of 14 days from the date of purchase (the Return Period).

(c) Within 5 days of the end of the Return Period, Uturn Digital will remit the proceeds of the sale to you (net GST), less Uturn Digital’s commission, as specified in the pricing table on the Website in relation to the Items sold. The payment to you will be made through our payment gateway provider (which is currently Shopfiy).

5. Sale or return

All Items which have not been sold by Uturn Digital within 60 days of the date the Item is listed for sale on the Website will either be, at your option:

(a) returned to you at your expense; or

(b) recycled

6. Title

Title in the Items will remain with you until the first of the following occurs:

(a) the Items are sold by Uturn Digital; or

(b) the Items are lost or damaged (whether or not by Uturn Digital or by any person for whom Uturn Digital has legal responsibility).

7. Risk

(a) Risk in the Items passes to Uturn Digital upon receipt of the Items by Uturn Digital.

(b) If any loss or damage to the Items occurs after receipt of the Items by Uturn Digital and prior to return of the Items to you, this will be considered to be a sale of the Items to Uturn Digital entitling you to payment pursuant to clause 4 of this Consignment Agreement

8. Uturn Digital’s obligations in relation to Items

Uturn Digital must not:

(a) misrepresent who is the owner of the Items; or

(b) in any way assign, charge, lease or otherwise deal with, or create a security interest over, the Items except for the purposes of, and consistent with, this Consignment Agreement.

9. Warranties and Indemnities

(a) You represent and warrant to Uturn Digital that:

(i) you are the sole owner of each Item you send to Uturn Digital for sale on a consignment basis;
(ii) you have clear title to each Item;
(iii) any description of any Item you provide is accurate, true and complete and that the Items do not contain any defects; and
(iv) all Items are authentic and do not infringe any intellectual property rights of a third party.

(b) You agree to indemnify Uturn Digital (and its directors, officers, shareholders and employees) from any and all liability (including lawyers’ fees) in respect of any claims or losses which might arise from the display and sale of any Items you provide to Uturn Digital on a consignment basis, including but not limited to any claims or losses in respect of the infringement of the intellectual property rights of any third party.

10. Personal Property Securities Act 2009 (Cth) (PPSA)

(a) You acknowledge and agree that:

(i) the consignment pursuant to this Consignment Agreement does not secure payment or performance of an obligation;
(ii) this Consignment Agreement does not constitute a security agreement; and
(iii) regardless of whether the consignment pursuant to this Consignment Agreement is a commercial consignment, you will not register nor seek to register any security interest against Uturn Digital (including, without limitation, by registering any financing statement or financing change statement) in respect of such consignment or this Consignment Agreement on the Personal Property Securities Register.

(b) Expressions defined in the PPSA have the same meaning when used in this clause 10.

11. Privacy

(a) Uturn Digital takes your privacy seriously and any information provided in connection with the Consignment Agreement is subject to Uturn Digital's Privacy Policy, which is available on the Website.

12. Dispute Resolution

(a) Compulsory

If a dispute arises out of or relates to the Consignment Agreement, neither party may commence any Tribunal or Court proceedings in relation to the dispute, unless this clause 12 has been complied with (except where urgent interlocutory relief is sought).

(b) Notice

A party to the Consignment Agreement claiming a dispute ('Dispute') has arisen under the Consignment Agreement must give written notice (‘Notice’) to the other party detailing the nature of the dispute, the desired outcome and the action required to settle the Dispute. Notices can be sent to Uturn Digital at help@theturn.com.au.

(c) Resolution

On receipt of the Notice by that other party, the parties to the Consignment Agreement ('Parties') must:

(i) Within 2 business days of the other party’s receipt of the Notice, endeavour in good faith to resolve the Dispute expeditiously by negotiation or such other means upon which they may mutually agree;
(ii) If for any reason whatsoever, 15 business days after the date of the other party’s receipt of the Notice, the Dispute has not been resolved, the Parties must either agree upon selection of a mediator or request that an appropriate mediator be appointed by the New South Wales Small Business Commissioner (https://www.smallbusiness.nsw.gov.au/what-we-do/mediation) or his or her nominee;
(iii) The Parties are equally liable for the fees and reasonable expenses of a mediator and the cost of the venue of the mediation and, without limiting the foregoing, undertake to pay any amounts requested by the mediator as a precondition to the mediation commencing. The Parties must each pay their own costs associated with the mediation; and
(iv) The mediation will be held in Sydney, Australia.

(d) Confidential

All communications concerning negotiations made by the Parties arising out of and, in connection with, this dispute resolution clause are confidential and to the extent possible, must be treated as "without prejudice" negotiations for the purpose of applicable laws of evidence.

(e) Termination of Mediation

If 15 business days have elapsed after the start of a mediation of the Dispute and the Dispute has not been resolved, either Party may ask the mediator to terminate the mediation and the mediator must do so.

13. Notices

(a) Service of notices

A notice, demand, consent, approval or communication under this Consignment Agreement (Notice):

(i) must be in writing and in English directed to the recipient’s address for notices specified in the Consignment Form (as varied by any Notice);
(ii) must be hand delivered, left at or sent by prepaid post or email to the recipient’s address for notices specified in the Details (as varied by any Notice); and
(iii) may be given by an agent of the sender.

(b) Effective on receipt

A Notice given in accordance with clause 13(a) takes effect when received (or at a later time specified in it), and is taken to be received:

(i) if hand delivered or left at the recipient’s address, on delivery;
(ii) if sent by prepaid post, the third Business Day after the date of posting, or the seventh Business Day after the date of posting if posted to or from outside Australia; and
(iii) if sent by email, when received by the recipient’s email server (whether or not classified as spam) unless the sender receives an automated message that delivery of the email has failed,

but if the delivery under paragraph (I) or (II) is outside Business Hours, the Notice is taken to be received at the commencement of Business Hours after that delivery, receipt or transmission. For the purposes of the Consignment Agreement, ‘Business Day’ means a a day (other than a Saturday, Sunday or public holiday) on which banks are open for general banking business in Sydney, New South Wales and ‘Business Hours’ means between 9.00am and 5.00pm on a Business Day.

(c) Process service

Any process or other document relating to litigation, administrative or arbitral proceedings in relation to this Consignment Agreement may be served by any method contemplated by this clause in addition to any means authorised by law.

14. Governing Law

(a) The Consignment Agreement is governed by the laws in force in New South Wales, Australia.

(b) Each party submits to the non exclusive jurisdiction of the courts exercising jurisdiction in New South Wales, and any court that may hear appeals from any of those courts, for any proceedings in connection with the Consignment Agreement, and waives any right it might have to claim that those courts are an inconvenient forum.

15. Amendment and Assignment

(a) Amendment

This Consignment Agreement can only be amended, supplemented, replaced or novated by another document executed by the parties.

(b) Assignment

(i) You may only assign, encumber, declare a trust over or otherwise create an interest in your rights under this Consignment Agreement with the prior written consent of Uturn Digital (which will not be unreasonably withheld or delayed).
(ii) Uturn Digital may assign, encumber, declare a trust over or otherwise create an interest in its rights under this Consignment Agreement without your consent, and may disclose to any potential holder of the right or interest any information relating to this Consignment Agreement or any party to it.

16. Severance

If any part of this Consignment Agreement is found to be void or unenforceable by a Court of competent jurisdiction, that part shall be severed and the rest of the Consignment Agreement shall remain in force.

Last Updated: 3 December 2021