User Agreement & Conditions of Sale

Terms and conditions

Disclaimer

Pop Up Design and its related sites, products, services, and tools (individually and collectively, the “site”) is owned and operated by Concept & Co Pty Ltd (ACN 638 793 012) trading as Pop Up Design (ABN 21 638 793 012) “popupdesign.com.au” “Us” or “We” or “Seller”). This user agreement and conditions of sales (“terms”) govern your (“User” or “You”) use of and conduct on the site. Should you purchase any item(s) on the site, the conditions of sale beginning, principally, at Clause 3 (referred to as the “Conditions of Sale”) shall govern your transaction as a prospective purchaser and buyer (collectively, “buyer”).

1. The site

The site provides an online marketplace for verified sellers (“Seller”) (“Vendor”)    that offers to sell goods (“items”) to prospective purchasers. In the event of a sale of any item, the sale is made directly between the buyer and the Seller, Vendor, and is governed by this User Agreement and the Conditions of Sale.

2. Terms of Use

Pop Up Design provides users with access to and use of the site subject to your compliance with these terms and the Pop Up Design’s privacy policy. Your use of the site constitutes your express agreement to these terms and our privacy policy. If you do not agree to these terms or our privacy policy, you may not access or use the site.

3. The Role of Pop Up Design.

(a) The role of Pop Up Design is expressly limited to making the Site available and maintaining the Site for Sellers, Vendors, Buyers, and Users. Pop Up Design is an intermediary and not an agent or fiduciary for any Seller, Buyer or User for any purpose. Pop Up Design is not responsible for the actual sale of any Item and does not control the information provided by Sellers, Buyers, or Users, nor their acts or omissions. Pop Up Design is independent from the Seller, Buyer and User, and no partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by the operation of this Site by Pop Up Design.

(b) Pop Up Design may, but is not obligated to, provide intermediary services between the Buyer and Seller in connection with customer service or dispute resolution matters. In the event Pop Up Design elects in its sole discretion to provide intermediary services, then the decision of Pop Up Design is final and binding on all parties and cannot be appealed, challenged or reversed.

4. Registration and Account Access.

(a) Registration may be required in order to use the Site. Registrants are required to provide certain information such as a valid email address, and to select a password to be used to create and access their accounts. This password and other registration details should be kept safe and not shared with anyone. Registrants may voluntarily provide additional information in the registration process to personalize their accounts. Registrants may access their accounts to view their profile information as well as transaction information by clicking the icon on the home page of the Site after logging in.

(b) Users may cancel their registration and account at any time. For your security, requests to terminate accounts must originate from the registered email account with Pop Up Design addressed to support@popupdesign.com. Under no circumstances will a cancellation request received via the phone or otherwise be accepted.

5. Eligibility to Use the Site.

Minors are not permitted to use the Site. Users must be 18 years of age or older to use this Site. This Site is not directed at children under the age of 13 and does not knowingly collect information from such minor children.

Conditions of sale

6. Relationship of the parties.

(a) The Seller, Vendor is responsible for accurately describing and pricing the items it is offering for sale and for delivering the items to the Buyer in accordance with the arrangements made between the Buyer and the Seller, including the transfer of title and payment of sales tax or GST or import/export duty to the appropriate authority.

(b) The buyer is solely responsible for determining the value, condition and authenticity of the items being purchased, to pay the purchase price to the Seller including any sales tax, GST or import/export duties, and to arrange for shipping of the items purchased.

(c) The role of Pop Up Design is expressly limited as set forth in Clause 3 above. Pop up Design relies on the Sellers for such information and is not responsible in any way for the description or pricing of Items on the Site provided by the Seller. Pop up Design is not responsible for the delivery or transfer of legal ownership of Items from a Seller to you. We are not responsible for the delivery of payment from you to the Seller unless we explicitly agree to be.

7. Items available on the site.

(a) All items displayed on the site are offered for sale subject to availability. Some items displayed on the site are unique and are also offered in other retail opportunities independent from Pop Up Design, and therefore some items may no longer be available.

(b) The Site is designed to provide the Buyer access to Items as the Sellers present them. Items can be warehouse stock, brand new, or ex-display. The Buyer is aware that unless stated otherwise, some ex-display Items are neither new nor in ‘perfect’ condition. An Item may require touch-up or repairs prior to use and that the available information about these Items may be limited. Accordingly, Pop Up Design does not verify any information provided by the Seller (or its representative selling an Item) and Pop Up Design makes no representations or warranties with respect to the Seller, the Item or the information related to the Item.

(c) The buyer is aware that unless stated otherwise, Items require assembly.

8. The sale process; Auctions when apllicable.

(a) When a Buyer identifies an Item for purchase, the Buyer may make an offer to purchase the Item (“Offer”) directly through the Site’s checkout page, or by contacting Pop up Design through any method listed on the Site (including by telephone). When making an Offer, the Buyer shall submit valid payment information to Pop up Design for payment of the Total Purchase Price. The “Total Purchase Price” is defined as the price agreed to on the Site between Buyer and Seller and includes: (i) the final, agreed upon price of the Item (the “Purchase Price”); (ii) any applicable shipping fees; and (iii) any sales tax, use tax, VAT, Internet sales tax and/or any other taxes or levies that the Seller is required to collect from the Buyer under applicable law at the time of sale. By making an Offer, the Buyer irrevocably agrees to pay the Total Purchase Price and, unless a counter-offer is made, the Seller agrees to sell the Item for the Total Purchase Price to the Buyer.

(b) If a Seller has indicated that the price of an Item is negotiable, then the Buyer may make an Offer through the Site to the Seller to purchase the Item at an alternative price selected by the Buyer or may inquire by using the telephone number displayed on the Site. Such calls will be operated and recorded by Pop up Design to log transactions, and for training and quality assurance purposes.

(c) An Offer may not be cancelled or revoked by a Buyer unless the Offer was made prior to the Total Purchase Price being fully confirmed by the Buyer and Seller e.g. because the shipping fees were not fully known at the time of placing the Offer (subject to any statutory rights that a Buyer may have). The Seller, at its sole discretion, may: (i) accept the Offer; (ii) decline the Offer; or (iii) make a counter-offer to the Buyer (“Counter-Offer”). By making a Counter-Offer, the Seller agrees to sell the Item to the Buyer at the Counter-Offer price and represents that the Item is available for immediate sale as long as the Buyer agrees to the Counter-Offer, and subject to any additional conditions contained in the Counter-Offer. Either the Buyer, the Seller, or Pop up Design may place a time limit on the effectiveness of the Offer and each party acknowledges that the Offer will lapse at the end of the offer period. If the Buyer agrees to pay the Counter-Offer price, then the Buyer shall acknowledge that acceptance by either confirming the purchase on the “offer status section” page of the Buyer’s Pop up Design account, or by confirming acceptance over the telephone.

(d) The sale takes place between the Buyer and the Seller, and a confirmation of sale (“Order Confirmation”) is posted to the “offer status section” page of the Buyer’s Pop up Design account, once: (i) the Seller has accepted and confirmed the Buyer’s Offer; or (ii) the Buyer has acknowledged, accepted and confirmed the Seller’s Counter-Offer. At this point, a binding contract between the Seller and the Buyer with respect to the sale and purchase of the Item is created and enforceable.

(e) In certain circumstances, a Buyer will be required to post a “reserve” amount to support an Offer (“Reserve Amount”). This Reserve Amount shall be authorized to Pop up Design by credit card at the time the Offer is made, and shall be credited against the Total Purchase Price due. In the event the Buyer and Seller are unable to agree upon the Total Purchase Price, or other material terms of the transaction, then Pop up Design will credit the Reserve Amount back to Buyer’s credit card account.

(f) For custom made orders, a Buyer will be required to post a non-refundable “deposit” amount (“Deposit”). The Deposit shall be paid by credit card or other acceptable payment method upon confirmation of sale. The Deposit will be held by the Seller and shall be credited against the Total Purchase Price.

(g) Notwithstanding anything to the contrary contained herein, in the event of an error by Seller as to availability of the Item, or an error by the Seller or Pop up Design as to acceptance of an Offer or Counter-Offer as the case may be, or any other error on Seller’s or Pop up Design’ part with respect to an Order Confirmation or the operation of the Site, the Seller and/or Pop up Design reserve the right in their sole and absolute discretion to rescind that Order Confirmation and purchase of the Item without penalty to any party.

(h) Due to the nature of the internet, occasional glitches, service interruptions or mistakes may cause unintended inaccuracies to appear on the Site. Pop up Design has the right to correct any inaccuracies or mistakes, and to void any purchase of an Item that displays an inaccurate price or description once brought to our attention.

(i) The Auction platform is a feature on the Pop up Design marketplace that allows Sellers to post an Item and designate it for sale by auction (“Auction Item”), which allows multiple parties to bid against each other to purchase the Auction Item. 

9. Offers to Purchase Outside of the Site.

(a) Sellers and Buyers are prohibited from using Pop up Design or the Site to contact each other to make offers to buy or sell and Item outside of the methods provided for by the Site. Sellers and Buyers are also prohibited from using information obtained from the Site to contact each other about buying or selling any Item available for sale on the Site outside of the methods provided for by the Site.

(b) If a Buyer attempts to breach these guidelines, Pop up Design may limit, restrict, or suspend the Buyer from using any feature of Site. The Buyer may also forfeit any special account status and/or discount rate. The Buyer may also be subject to the application of fees and recovery of Pop up Design expenses in policy monitoring and enforcement.

10. Payment for purchased items.

(a) Immediately upon receipt of the Order Confirmation, the Buyer shall remit an amount equal to the full amount (100%) of the Total Purchase Price. In the event Buyer has previously posted a Reserve Amount with Pop up Design for the Item, then the Reserve Amount shall be credited against the Total Purchase Price and Buyer shall remit the remaining balance of the Total Purchase Price.

(b) The Buyer hereby irrevocably authorizes Pop up Design upon Order Confirmation to charge the Buyer’s credit card or other payment methods for an amount equal to the Total Purchase Price.

11. Taxes and Duties.

When applicable, the Buyer is entirely responsible for paying all applicable sales and use taxes, GST, export and/or import taxes and duties and all transactional taxes or levies related to each Item purchased (collectively, “Taxes”). The Buyer shall pay the Seller such Taxes as the Seller is required to collect, but failure of the Seller to collect the Taxes will not relieve the Buyer’s obligation. The Buyer must determine, pay, collect, remit and report to the appropriate taxing authority the correct amount of all export and/or import taxes or duties payable upon export of the Item from its country of origin and import into Australia or any other country. In the event that an exemption applies, it is the Buyer’s sole responsibility to establish and/or document any applicable exemption from Taxes.

12. Shipping.

(a) Buyer-arranged shipping. The Buyer is in every instance free to arrange the Buyer’s own shipping and may elect to use any shipping company of its choice. The crating/shipping/insurance companies designated by the Buyer are the Buyer’s agents and the Buyer will bear all applicable costs and pay such costs directly to the agents. The Buyer may also ask Pop up Design to arrange for shipping of any Item on the Buyer’s behalf which may be subject to pre-advertised shipping prices.

(b) Seller-arranged shipping. The Buyer may elect to have the Seller arrange for crating, packaging, shipping and freight insurance. Following the Buyer’s request, the Seller shall provide shipping information including the name of the freight carrier, the complete cost of shipment from the Seller to the Buyer’s designated receiving address, the cost of any duty or other charges to be paid by the Buyer, the cost of freight insurance and the name of such insurance provider, as well as any costs or fees to be charged by the for crating or packaging the Items for shipment. The Buyer and the Seller shall mutually agree on shipment terms and the Buyer shall prepay all shipment costs.

(c) On occasion, certain Items may be eligible for free shipping as indicated in the Item description. Any offer of free shipping may be limited, and subject to certain exceptions as will be noted at the time of such free shipping offer. In cases where free shipping is available, the remaining terms of this User Agreement and Conditions of Sale remain applicable. Pop up Design reserves the right to cancel or modify any offer for free shipping at any time without notice.

(d) Pop up Design reserves the right to correct or cancel any transaction if an error is made in calculating shipping.

Buyer-arranged delivery. The buyer is, in every instance, free to arrange the buyer’s own delivery and may elect to use any company of its choice. The buyer may also ask Pop Up Design to arrange for delivery of any item on the buyer’s behalf which may be subject to pre-advertised delivery prices.

On occasion, certain items may be eligible for free delivery as indicated in the item description. Any offer of free delivery may be limited, and subject to certain exceptions as will be noted at the time of such a free delivery offer. In cases where free delivery is available, the remaining terms of this User Agreement and Conditions of Sale remain applicable. Pop Up Design reserves the right to cancel or modify any offer for free delivery at any time without notice.

Pop Up Design reserves the right to correct or cancel any transaction if an error is made in calculating delivery.

13. Import/Export Restrictions.

(a) Some Items offered for sale on the Site may require cultural, customs and regulated species permits for export from the country where they are located and/or import into the Buyer’s country. Items may also be subject to a right of the country from which they are exported to purchase the Items from the Buyer. Neither the Seller nor Pop up Design makes any representation, gives any warranty or shall have any liability to the Buyer in respect of the requirement for, or the availability, or issuance of valid export or import permits or the existence or exercise of preemption rights to purchase by governmental or regulatory authorities anywhere.

(b) If the listing of any Item on the Site states that the Item requires a special permit, or if such requirement is disclosed after the Order Confirmation but before the shipper picks up the Item, or if the Buyer first learns that an export permit is required after the Item has been picked up by the shipper, and the Seller is unable to obtain the export permit within thirty (30) days after the later of confirmation of the sale or disclosure of the requirement for the export permit, then the Buyer may rescind the sale of such Item by giving written notice to Pop up Design and the Seller within seven (7) business days after expiration of the applicable thirty (30) day period. In no event shall the Buyer be entitled to rescind a sale more than ninety (90) days after the date of the sale.

(c) If the sale is rescinded, the Buyer shall return the Item to the Seller at the Buyer’s cost unless otherwise agreed. Upon such return, Pop up Design and/or the Seller shall return to the Buyer the Total Purchase Price. This limited right of rescission is not assignable and belongs solely to the Buyer of record.

14. Transfer of title/risk of loss.

 (a) The Seller of each Item offered for sale on the Site represents and warrants that the Seller: (i) is the sole owner of such Item, or is duly authorized by the owner to sell the Item; and (ii) will convey good and marketable title of such Item to the Buyer following payment of the Total Purchase Price for the Item free and clear of any ownership claims by third parties.

(b) In the event the Seller has requested that Pop up Design collect and remit payment of the Total Purchase Price, then the Seller will convey good and marketable title to the Item upon receipt of the Order Confirmation by the Buyer and receipt by Pop up Design of the Total Purchase Price.

(c) In the case of Buyer-arranged shipping, risk of loss and title for such Item passes to the Buyer upon the Seller’s delivery of the Item to the carrier selected by the Buyer for shipment or when the Buyer picks up the Item from the Seller.

(d) In the case of Seller-arranged shipping, risk of loss and title for such Item passes to the Buyer upon the Buyer’s receipt of the Item.

15. Sales are “as-is”.

(a)Ex-Display items displayed on the site are sold “as-is”, “with all faults”. Neither the Seller nor

Pop Up Design makes any guarantee, warranty or representation, expressed or implied, to any buyer with respect to any item, including without limitation, its condition, merchantability, fitness for a particular purpose, quality, rarity, importance, provenance, designer or creator, exhibitions, literature, historical relevance, or as to whether the buyer acquires any reproduction right or other intellectual property right in any item. No statement anywhere, whether oral or written, shall be deemed any such guarantee, warranty or representation.

(b) By using the Site, Buyers and Users select and purchase goods marketed by Sellers, solely of their own initiative, placing orders via the Site. You acknowledge that Popupdesign.com.au has no control over the ultimate price Items are sold at or any sales terms ultimately entered into between a Buyer and a Seller.

16. Expert Review.

If the Buyer is purchasing an Item based in whole or in part on its stated provenance, designer or creator, the Buyer may at its option and at its own cost arrange with the Seller to have Buyer’s selected expert review the Item prior to purchase. Selection of the expert is the sole responsibility of the Buyer. Any arrangements for inspection shall be made between the Buyer and Seller. Buyer expressly acknowledges that the Buyer’s use and/or reliance on any expert is at the Buyer’s own risk and cost.

17. Returns and refunds.

Under Australian Competition & Consumer Law, you are entitled to ask for a refund should there be a major problem with the item.

You are not entitle to cancel an order or get a refund if the problem was outside the control of the provider or if you changed your mind. See more on our returns and refund page.

18. Remedies for non payment.

(a) If for any reason the buyer cancels payment made by credit card or any other means following receipt of the order confirmation or the buyer otherwise fails to make any payment with respect to the total purchase price (“default”), then the buyer shall remain liable to the Seller for the total purchase price in full, as well as any additional costs related to the sale of the item, including but not limited to applicable taxes, storage, and handling fees and any incurred costs or fees associated with collection of any amount due to Pop Up Design and /or the Seller including but not limited to legal fees and costs related to currency fluctuations.

Without limitation to any other provision of these terms, in addition to any other remedies at law or equity, Pop Up Design reserves the right, at its election, to retain any and all payments paid by buyer prior to default with respect to the item as liquidated damages, and to cancel the sale of the item without any further obligation to buyer.

19. Refusal of Transaction.

Pop Up Design reserves the right to withdraw any item from the site, to amend any content on the site, or to refuse service to anyone at any time in its sole discretion. Pop Up Design will not be liable to any user, or buyer or any other third party because it has withdrawn any item from the site, amended any of the content or denied access to the site.

20. Proprietary Rights.

As between users and Pop Up Design, (or other company whose marks appear on the site), Pop Up Design (or the respective company) is the owner and/or authorised user of any trademark, registered trademark and/or service mark appearing on the site, and is the copyright owner or licensee of the content and/or information on the site, unless otherwise indicated.

Except as otherwise provided herein, use of the site does not grant you a license to any content, features or materials you may access on the site and you may not modify, rent, lease, loan, sell, distribute or create derivative works of such content, features or materials, in whole or in part. Any commercial use of the site is strictly prohibited, except as allowed herein or otherwise approved by us. You may not download or save a copy of any of the content or screens for any purpose except as otherwise provided by Pop Up Design. If you make use of the site, other than as provided herein, in doing so you may violate copyright and other laws of Australia, other countries, as well as applicable state laws and may be subject to liability for such unauthorised use. We do not grant any license or other authorisation to any user of our trademarks, registered trademarks, service marks, other copyrightable material or any other intellectual property by including them on the site.

The information on the site including, without limitation, all site design, text, graphics, interfaces, and the selection and arrangements is protected by law including copyright law.

Product names, logos, designs, titles, graphics, words or phrases may be protected under law as the trademarks, service marks or trade names of Pop Up Design or other entities. Such trademarks, service marks, and trade names may be registered in Australia and internationally.

Without our prior written permission, you agree not to display or use our trademarks, service marks, trade names, other copyrightable material or any other intellectual property in any manner.

All images created or produced or modified by Pop Up Design are the sole property of Pop Up Design. Pop Up Design may use any such image to promote the site or for any other purpose at any time without restriction.

21. Modification.

Pop Up Design has control over the look, feel, content, operations, and evolution of the site, and may modify the site and any content in our sole discretion.

We may modify these terms from time to time without notice to you. The provisions contained herein supersede all prior notices or statements regarding our terms with respect to this site. We encourage you to check the site frequently to see the current terms in effect and any changes that may have been made. By using the site following any modifications to the terms you agree to be bound by the modifications.

We reserve the right, for any reason, in our sole discretion and without notice to you, to terminate, change, suspend or discontinue any aspect of the site, including, but not limited to, information, products, data, text, music, sound, photographs, graphics, video, messages or other materials (“content”), features and/or hours of availability, and we will not be liable to you or to any third party for doing so. We may also impose rules for and limits on use of the site or restrict your access to part, or all, of the site without notice or penalty. We have the right to change these rules and/or limitations at any time, in our sole discretion.

22. Consent to processing.

(a) By providing any personal information to the site, all users fully understand and unambiguously consent to the collection and processing of such information in Australia. For further information data, please see our privacy policy available at https://popupdesign.com.au/privacy-policy/

(b) We control and operate the site from our offices in Australia, and all information is processed within Australia or at the location of our service providers. We do not represent that materials on the site are appropriate or available for use in locations outside Australia. Persons who choose to access the site from other locations do so on their own initiative, and are responsible for compliance with local laws, if and to the extent local laws are applicable.

23. Site unavailability.

(a) You acknowledge that temporary interruptions in the availability of the site may occur from time to time as normal events.

(b) We may decide to cease making available the site or any portion of the site at any time and for any reason. Under no circumstances will Pop Up Design be held liable for any damages due to such interruptions or lack of availability.

24. Security rules.

Violations of system or network security may result in civil or criminal liability. Pop Up Design will investigate occurrences and may involve, and cooperate with, law enforcement authorities in prosecuting the user or users who are involved in such violations. Users are prohibited from violating or attempting to violate the security of the site, including, without limitation, the following: (i) accessing data not intended for you or logging into a server or account which you are not authorised to access; (ii) attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorisation; (iii) attempting to interfere with service to any user, host or network, including, without limitation, via means of submitting a virus, worm, Trojan Horse or other harmful code to the site, overloading, “flooding”, “mailbombing” or “crashing”, or sending unsolicited email, including promotions and/or advertising of products or services; or (iv) forging any TCP/IP packet header or any part of the header information in any email or newsgroup posting.

25. Termination of use.

Pop Up Design expressly reserves the right to terminate the use of, or to refuse to permit the use of, the site by any person or entity, at the sole discretion of Pop Up Design, for any reason or no reason at all, and without prior notice. In the event of termination, any rights or obligations regarding pending or completed purchases, or your indemnity obligations related to use of the site, shall survive such termination.

26. Notices.

Any notices shall be given by postal mail addressed to Pop Up Design, PO box 241 Mosman Park, Western Australia, 6912, to the attention of the Legal Department or to the email address provided by Pop Up Design and currently on record [if to a User]. Notices shall be deemed to have been given 24 hours after the email was sent, unless Pop Up Design is notified that the email address is invalid, in which event Pop Up Design may give notice by postal mail at the address provided to Pop Up Design by the User upon registration. Notice given by postal mail shall be deemed to have been given three (3) business days after the date of mailing.

27. General information.

If any provision of these terms is deemed unlawful, void or for any reason unenforceable, such provision(s) will be deemed severable from the rest of the terms and will not affect the validity and enforceability of the rest of the terms. Failure of Pop Up Design to exercise any rights or remedies will not constitute a waiver of any rights or remedies available to Pop Up Design under these terms or at law. These terms represent the entire agreement between users and Pop Up Design and supersede and replace any other agreement between the parties including but not limited to any previous terms as they may have applied between users and Pop Up Design. Paragraph headings are for convenience only and not for interpretation of these terms.

28. Choice of law.

These terms, and any dispute arising therefrom, shall be governed by and in accordance with the laws of Western Australia without regard to conflicts of law.

29. Contact us.

To contact us with any questions or concerns in connection with these terms, or the site, please write to us at Pop Up Design, PO box 241, Mosman Park, Western Australia, 6912 or email us at support@popupdesign.com.au

30. Effective date.

These terms are effective as of February 1, 2022.