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TERMS AND CONDITIONS OF THE CONSIGNMENT AGREEMENT

 

Updated 1st August 2021

 

Parties:

 

The Consignee: Susan Margaret Turner ABN 64 434 097 099 trading as The Uniform Exchange (The Consignee, The Uniform Exchange, the agent, we or us)

The Consignor: The person identified in the Drop Off Form

 

Background

1. The Consignor is the owner of the Consignment Stock and the expression Consignor in this Agreement includes the Consignor’s representatives.

2. The Consignee wishes to obtain the Consignment Stock on consignment from the Consignor.

3. The Consignor agrees to supply the Consignment Stock on consignment to the Consignee and to appoint the Consignee as its agent for the sale of the Consignment Stock in accordance with the terms and conditions of this Agreement.

1.              Definitions and Interpretation

1.1           Definitions

In this Agreement:

“Agreement” means this Consignment Agreement, including the Drop Off Form.

“Business Day” means a day which is not a Saturday, Sunday or bank or public holiday in New South Wales.

“Consignee” means Susan Margaret Turner ABN 64 434 097 099 trading as The Uniform Exchange.

“Consignment Period" means the day that custody, possession or control of the Consignment Stock is given to the Consignee or the Consignment Stock is delivered to the Delivery Address, until all of the Consignment Stock is sold by the Consignee, or returned to the Consignor, or becomes the property of the Consignee and is donated or recycled in accordance with the terms of this Agreement.

“Consignment Stock” is the stock or items as described on the Drop Off Form completed by the Consignor or filled out by the Consignee and accepted as correct by the Consignor when they bring stock in from time to time.

“Consignor” means the person identified in the Drop Off Form.

Consignor Payment means fifty (50%) of the balance of the Consignment Stock proceeds, after the GST has been deducted, and any administration fees

“Delivery Address” means 993 Pacific Highway Pymble NSW 2073.

“Drop Off Form” means the form to be completed by the Consignor.

“Event of Default” means:

(a)            the Consignee does not pay any money due for payment by it in accordance with this Agreement;

(b)            a representation, warranty or statement made or deemed to be made by a Party in this Agreement is untrue or misleading;

(c)            an event or series of events, including any material adverse change in the property or financial condition of a Party, occurs which has or is likely to have a material adverse effect on its ability to perform its obligations under this Agreement;

(d)            an investigation is instituted under the Corporations Act 2001 or other legislation into or an inspector is appointed to investigate a Party’s affairs;

(e)            a Party is or states that it is unable to pay all its debts as and when they become due and payable;

(f)             a corporate Party is taken or must be presumed to be insolvent or unable to pay its debts under any applicable legislation;

(g)            an application or order is made for the winding up or dissolution of a corporate Party or a resolution is passed or any steps are taken to pass a resolution for its winding up or dissolution;

(h)            an administrator, provisional liquidator, liquidator or person having a similar or analogous function under the laws of any relevant jurisdiction is appointed in respect of a corporate Party or any action is taken to appoint any such person and the action is not stayed, withdrawn or dismissed within 5 Business Days;

(i)              a controller is appointed in respect of any property of a corporate Party;

(j)              a corporate Party is deregistered under the Corporations Act 2001 or notice of its proposed deregistration is given to the corporation;

(k)            a distress, attachment or execution is levied or becomes enforceable against any property of a corporate Party;

(l)              a corporate Party enters into or takes action to enter into an arrangement (including a scheme of arrangement or deed of Consignor arrangement), composition or compromise with, or assignment for the benefit of, all or any class of its creditors or members or a moratorium involving any of them;

(m)          a receiver or receiver and manager is appointed in respect of any individual Party;

(n)            a petition for the making of a sequestration order against the estate of a Party is presented and the petition is not stayed, withdrawn or dismissed within five (5) Business Days or a Party presents a petition against itself;

(o)            a Party presents a declaration of intention under section 54A of the Bankruptcy Act 1966;

(p)            an individual Party dies; or

(q)            anything analogous to or of a similar effect to anything described above under the law of any relevant jurisdiction occurs in respect of a Transaction Party.

“Parties” means the Consignor and the Consignee.

“Payment Method” means cash or cheque, or other payment method as advised by the Consignee from time to time.

“Recycled” means that the Consignment Stock that has not been sold, and that becomes the property of the Consignee under the Terms & Conditions, will be donated to a charity, not-for-profit entity or social enterprise of the Consignee’s choosing, without further notice to the Consignee.

1.2           Interpretation

In this Agreement, unless expressed to the contrary:

(a)            words in the singular include the plural and vice versa;

(b)            headings are for convenience and do not affect the interpretation of this Agreement;

(c)            any gender includes the other gender;

(d)            a reference to a clause, paragraph, schedule or annexure is a reference to a clause, paragraph, schedule or annexure, as the case may be, of this Agreement;

(e)            if any act which must be done under this Agreement is to be done on a day that is not a Business Day then the act must be done on or by the next Business Day;

(f)             a reference to any legislation includes subordinate legislation and all amendments, consolidations or replacements from time to time;

(g)            if a word or phrase is defined in this Agreement then any other grammatical form of the word or phrase shall have a corresponding meaning;

(h)            a reference to a natural person includes a body corporate, partnership, joint venture, association, government or statutory body or authority or other legal entity;

(i)               “includes” and similar words mean includes without limitation;

(j)              no clause of this Agreement shall be interpreted to the disadvantage of a Party merely because that Party drafted the clause or would otherwise benefit from it;

(k)            a reference to a Party includes the Party’s legal personal representatives, successors, assigns and persons substituted by novation;

(l)              a reference to this or any other agreement includes the agreement, all schedules and annexures as novated, amended or replaced and despite any change in the identity of the parties;

(m)          a reference to a covenant, obligation or agreement of two or more persons binds or benefits them jointly and severally;

(n)            a reference to time is to local time in New South Wales; and

(o)            a reference to “$” or “dollars” refers to the currency of Australia from time to time.

2.              Term and Acceptance

2.1           This Agreement shall be valid from the date that the Consignor first delivers Consignment Stock to the Consignee until terminated earlier in accordance with this Agreement.

2.2           The Consignor accepts this Agreement by signing the Drop Off Form. 

3.              Consignment Stock

3.1           The Consignor will provide the Consignee with Consignment Stock as set out in the Consignee’s Drop Off Form from time to time. The Consignor warrants that the particulars in the Drop Off Form are accurate and the Consignor warrants and agrees to indemnify and hold harmless the Consignee against any misdescription, error or omission contained therein.

3.2           Consignment Stock that comprises of clothing, articles of textile or books will only be accepted if current, clean, pressed and on hangers (as the case may be). Any item found to be damaged and deemed unsellable by the Consignee, becomes the property of the Consignee and will be donated or recycled.

3.3           The Consignee retains the absolute discretion to accept or reject Consignment Stock for whatever reason and to sell the Consignment Stock that is accepted to whomever and on such terms and for whatever prices it deems appropriate.

3.4           The Consignee does not guarantee the sale of the Consignment Stock.  

3.5           The Consignor will arrange delivery of the Consignment Stock to the Consignee’s Delivery Address at the Consignor’s expense.

3.6           The Consignee may, at its own expense and on giving not less than seven (7) day’s notice to the Consignor, return any Consignment Stock to the Consignor.

4.              Risk and damage

4.1           Upon delivery of the Consignment Stock to the Consignee, risk (but not legal title) in the Consignment Stock will pass from the Consignor to the Consignee. In selling the Consignment Stock the Consignee will be acting as the agent of the Consignor, only in respect of the Consignment Stock listed in the Drop Off Form. The Consignee is not your general agent.

4.2           The Consignee will take all reasonable care with the Consignment Stock, including to ask that customers of the Consignee do not eat or drink in the consignment shop. The Consignee will inform the Consignor of loss of and/or damage caused to the Consignment Stock during the Consignment Period.

4.3           If any Consignment Stock is lost, stolen, irreparably damaged or destroyed, the Consignee agrees that the Consignee is deemed to have purchased such Consignment Stock from the Consignor, and is liable to pay the Consignor Payment to the Consignor, on the terms and conditions set out in this Agreement.

4.4           This clause will survive termination of this Agreement.

5.              Payment and Donations of Consignor Payment

5.1           For each sale of Consignment Stock the Consignee will receive payment on the Consignor’s behalf, unless the Consignment Stock has been donated to the Consignee by the Consignor, as listed in the receipt book. You will not receive payment for these.

5.2           The Parties agree that the Consignor Payment will be deducted from the proceeds of sale received by the Consignee.

6.              Consignor’s Obligations and Warranties

6.1           Contact: The Consignor must contact The Uniform Exchange regularly (minimum twice a year) for an update regarding any Consignor Payment is due and owing to the Consignor in respect of sales. The Uniform Exchange is under no obligation to contact you.

6.2           Stock: Consignment Stock that has not been sold within thirty six (36) months from the date on the Drop Off Form, becomes the property of The Uniform Exchange and will be donated or recycled. 

6.3           Consignor Payment: The Consignor is responsible for attending The Uniform Exchange’s Delivery Address to collect the Consignor Payment. The Uniform Exchange may agree to pay the Consignor Payment to the Consignor to an account nominated by the Consignor, only if it is not reasonably practicable for the Consignor to attend The Uniform Exchange’s Delivery Address to collect the Consignor Payment.

6.4           Choice: When you and The Uniform Exchange communicate, you can choose to (1) collect the Consignor Payment, (2) nominate an account for payment of the Consignor Payment, or (3) give The Uniform Exchange permission to donate the Consignor Payment to a charity, not-for-profit entity or social enterprise of the Consignee’s choosing. If you do not confirm item (1), (2), or (3) within six months, you give The Uniform Exchange permission to donate the Consignor Payment (less admistration fees)  to a charity, not-for-profit entity or social enterprise of The Uniform Exchange’s choosing, without further notice to you.

6.5           No contact: ​The Uniform Exchange is under no obligation to contact you. If you do not contact The Uniform Exchange, and if The Uniform Exchange tries to contact you but cannot contact you on the contact details that you provided on the Drop Off Form, for a period of at least 12 months from the date of Drop Off or the date of sale of Consignment Stock if there has been a sale, then you give The Uniform Exchange permission to donate the Consignor Payment (less administration fee) to a charity, not-for-profit entity or social enterprise of the Consignee’s choosing, without further notice to you.

6.6           The Consignor warrants and represents to the Consignee that throughout the Consignment Period:

(a)            it has legal capacity, power and authority to enter into this Agreement;

(b)            it has all rights in relation to the Consignment Stock and to perform its obligations as set out in this Agreement.

7.              Consignee’s Obligations and Warranties

7.1           The Consignee acknowledges and agrees that:

(a)            it has legal capacity, power and authority to enter into this Agreement;

(b)            it will comply with any reasonable directions given to it by the Consignor from time to time;

(c)            it will act lawfully and will comply with any applicable licenses, laws, regulations, industry codes of conduct, health and safety requirements and Australian standards in relation to the use of the Consignment Stock;

(d)            it will follow the Consignor’s directions regarding the Consignment Stock; and

(e)            if necessary, it is registered for GST purposes.

8.              Insurance

8.1           Insurance of the Consignment Stock will be a matter for the Consignor.

9.              Termination

9.1           Either party may terminate this Agreement at any time by giving 30 days’ notice in writing.

9.2           At any time during the Consignment Period, the Consignor may terminate this Agreement by giving notice in writing to the Consignee where there is an Event of Default.

9.3           Upon termination of this Agreement, the Consignment Stock will be dealt with as set out in clause 6.

9.4           The accrued rights, obligations and remedies of the Parties are not affected by the termination of this Agreement.

10.          Dispute Resolution

10.1       If there is a dispute between the Parties in relation to this Agreement, the Parties agree to the following dispute resolution procedure:

(a)            The complainant who has the dispute must tell the respondent in writing, the nature of the dispute, what outcome the complainant wants and what action the complainant thinks will settle the dispute. The Parties agree to meet in good faith to attempt to resolve the dispute by agreement between them, within two (2) weeks of the complainant sending this notice, if reasonable, or as soon as possible after this period.

(b)            If the parties will not meet, or cannot agree on how to resolve the dispute within two (2) weeks of the meeting, either of the parties may refer the matter to a mediator. If the parties cannot agree on whom the mediator should be, either party may ask the Law Society of the New South Wales to appoint a mediator.  The mediator may decide the time and place for mediation. The Parties must attend mediation to try to resolve the dispute through mediation or other alternative dispute resolution processes.

10.2       Any attempts made by the Parties to resolve a dispute pursuant to this clause shall be without prejudice to any other rights or entitlements of the Parties under this Agreement, by law or in equity.

11.          Costs and Expenses

11.1       Each Party must pay its own costs and expenses (including legal costs and expenses) in relation to the negotiation, preparation and execution of this Agreement and any variation or replacement of this Agreement.

11.2       The Parties will share equally any duty, taxes, registration and other fees (including fines and penalties relating to the duty, taxes and fees) which are payable in relation to this Agreement and any transaction contemplated by it.

12.          Amendment and Records

12.1       This Agreement may only be amended by written agreement executed by all the Parties.

13.          Notices and Records

(a)            Form of notice

A notice or other communication must be in writing in English and may be:

(i)              delivered personally;

(ii)            given by an agent of the sender;

(iii)           left at a Party’s current delivery address for notices as set out in this Agreement;

(iv)           sent by prepaid mail to a Party’s current postal address for notices as set out in this Agreement;

(v)            sent by email to a Party’s current email address for notices as set out in this Agreement; and/or

(vi)           sent by fax to a Party’s current fax number for notices as set out in this Agreement.

(b)            Receipt of notice

A notice or communication is taken as having been given:

(i)              when left at a Party’s current delivery address for notices; or

(ii)            if mailed within Australia to an Australian address, on the third Business Day after posting; or

(iii)           if mailed outside of Australia to an Australian postal address or within Australia to an address outside of Australia, on the tenth Business Day after posting;

(iv)           if sent by email, when the sender receives an email read receipt regarding the recipient’s email address; or

(v)            if send by fax, when the sender receives a fax report from the recipient’s fax machine acknowledging receipt of the notice, unless the fax is received after 5pm in the place of receipt, in which case it is taken as having been given at 9am on the next day that is not a Saturday, Sunday or bank or public holiday in the place of receipt.

(c)            A Party may change its address for service of notices by written notice to the other Party.

(d)            The Consignee may also keep records of telephone communications with you.

14.          General

(a)            Relationship: The Consignee may describe themselves as an authorised Consignee of the Consignment Stock, but must not describe itself in any way as an employee or agent of the Consignor, except to the limited extent described in clause 4.  This Agreement is not intended to create a relationship between the Parties of partnership, joint venture, agency or employer-employee, except as described in clause 4.

(b)            Assignment: This Agreement is personal to the Parties.  A Party must not assign or deal with the whole or any part of its rights or obligations under this Agreement without the prior written consent of the other Party (such consent not to be unreasonably withheld). Any purported dealing in breach of this clause is of no effect.

(c)            Waiver or variation of rights: Any failure or delay by a Party in exercising a power or right (either wholly or partially) in relation to this Agreement does not operate as a waiver or prevent that Party from exercising that power or right or any other power or right.  A Party is not liable to any other Party for any loss, cost or expense that may have been caused or contributed to by the failure, delay, waiver or exercise of a power or right.

(d)            Powers, rights and remedies: Except as expressly stated to the contrary in this Agreement, the powers, rights and/or remedies of a Party under this Agreement are cumulative and are in addition to any other powers, rights and remedies of that Party.  Nothing in this Agreement merges, extinguishes, postpones, lessens or otherwise prejudicially affects any power, right, or remedy that a Party may have at any time against the other Party to this Agreement or any other person.

(e)            Consents and approvals: Where this Agreement provides that a Party may conditionally or unconditionally give or withhold any consent or approval in relation to any matter in this Agreement, that Party may in its absolute discretion, and without being obliged to give reasons for doing so, withhold any consent or approval or give consent or approval conditionally or unconditionally.

(f)             Further assurance: Each Party must from time to time and in a timely manner do all things reasonably required of it by the other Party to give effect to this Agreement.

(g)            Counterparts: This Agreement may be executed in any number of counterparts and, if so, the counterparts taken together will constitute one and the same Agreement.  The date of this Agreement will be the date that it is executed by the last Party.

(h)            Entire agreement and understanding: In respect of the subject matter of this Agreement: this Agreement contains the entire understanding between the Parties; all previous oral and written communications, representations, warranties or commitments are superseded by this Agreement and do not affect the interpretation or meaning of this Agreement; and each of the Parties has relied entirely on its own enquiries before entering into this Agreement.

(i)              Governing law and jurisdiction: This Agreement is governed by the laws of New South Wales and the Commonwealth of Australia. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in New South Wales.

 

LegalVision ILP Pty Ltd owns the copyright in this document and use without permission is prohibited.

 

 

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