Innerspace | Terms and Conditions

Terms and Conditions

Innerspace (Qld) Seating & Systems Pty Ltd
Terms and Conditions of Trade

1. DEFINITIONS

In this Agreement, unless the context otherwise requires:

Agreement means this supply agreement and any Schedule.

Authorised Officer means a director, secretary or manager.

Building means the building located at the Site.

Business Day means a day that is not a weekend or a gazetted public holiday where the Goods are being delivered.

Confidential Information means all information, forms, specifications, processes, statements, information, either in writing or otherwise relating in to the terms of this Agreement;

but does not include information that:

(a) is, or becomes part of the public domain other than by breach of this Agreement committed by any party; or

(b) is lawfully obtained from another person without any restriction regarding its use and disclosure.

Consequential Loss means special, consequential or indirect loss, damages, cost or liability including loss of this Agreement, an increase in expenses and costs, loss of profit, wasted expenditure or loss of use whether arising in contract, tort (including negligence) by way of indemnity, equity, under statute or otherwise at law.

Claim means any claim, notice, demand, debt, account, lien, liability, action, proceedings or suit under, arising out of, or in any way in connection with the Agreement, the Services or either party’s conduct under the Agreement or before it came into force, whether at law (including breach of contract) or in equity (including restitution), by statute, in tort (including negligence) or for restitution, including any claim, notice, demand, debt, account, lien, liability, action, proceeding or suit:

(a) for the payment of money; or

(b) for an adjustment to the Fee.

Consumer Law means the Australian Consumer Law as set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth).

Deliverable means the goods and services provided to the Customer by the Supplier as set out in Schedule 1.

Delivery Date means the date stated in the Agreement Particulars.

Fee is the fee payable by the Customer to the Supplier for the Services as stated in Agreement Particulars.

Fitting is any Good supplied by the Supplier.

GST means a tax, duty, levy, charge or deduction imposed by or under a GST law together with any related interest, penalties, fines or other charge.

GST Law has the meaning given to the term in A New Tax System (Goods and Services Tax) Act 1999 (Cth), or if that Act does not exist for any reason, means any Act imposing or relating to the imposition or administration of a goods and services tax in Australia or any regulation made under that Act.

Industry Best Practice means the standards (including any relevant Australian Standard), practices, methods and procedures generally followed or approved by relevant industries and suppliers in Australia with respect to the Services and the degree of skill, diligence, care and foresight which would reasonably and ordinarily be expected from a competent and experienced supplier engaged in similar work or services.

Insolvency Event means any of the following events:

(c) a liquidator, receiver, receiver and manager, administrator, official manager or other controller (as defined in the Corporations Act 2001 (Cth), trustee or controlling trustee or similar official is appointed over any of the property or undertaking of the party;

(d) the party or the party’s property or undertaking becomes subject to a personal insolvency arrangement under part X of the Bankruptcy Act 1966 (Cth) or a debt agreement under part IX of the Bankruptcy Act 1966 (Cth);

(e) the party is unable to pay its debts when they are due or is unable to pay its debts within the meaning of the Corporations Act 2001 (Cth), or is presumed to be insolvent under the Corporations Act 2001 (Cth);

(f) the party ceases to run the business; or

an application or order is made for the liquidation of the party or a resolution is passed or any steps are taken to liquidate or pass a resolution for the liquidation of the party, other than for the purpose of an consolidation or reconstruction.

Good means any item which is supplied by the Supplier under this Agreement.

Services means the services to be performed by the Supplier for the Customer as set out in this Agreement including Schedule 1.

Site means the delivery address nominated by the Customer in the Agreement Particulars.

Tax invoice means a tax invoice under the GST law submitted by the Supplier to claim payment for any Fee in accordance with clause 13.1.

Warranty Period has the meaning in clause 16(a).

2. INTERPRETATION

In the Agreement, unless the context indicates otherwise:

(a) a singular word includes the plural and vice versa;

(b) a word which suggests one gender includes the other;

(d) a reference to a clause, schedule, or party is a reference to a clause of, and a schedule, or party to, this Agreement and references to this Agreement include any schedules;

(e) a reference to a party to this Agreement or any other document or agreement includes the party’s successors, permitted substitutes and permitted assigns;

(f) if a word or phrase is defined, its other grammatical forms have a corresponding meaning;

(g) a reference to a document or agreement (including a reference to this Agreement) is to that document or agreement as amended, supplemented, varied or replaced;

(h) a reference to this Agreement includes the agreement recorded by this Agreement;

(i) a reference to legislation or to a provision of legislation (including subordinate legislation) is to that legislation as amended, re-enacted or replaced, and includes any subordinate legislation issued under it;

(j) time for doing any act or thing under the Agreement shall, if it ends on a day which is not a Business Day, be deemed to end on the next Business Day;

(k) a reference to a person includes a corporation, trust, partnership, unincorporated body, government and local authority or agency, or other entity whether or not it comprises a separate legal entity;

(l) a reference to ‘month’ means calendar month;

(m) the words ‘include’, ‘included’ or ‘including’ are not words of limitations;

(n) if the Customer provides instructions in relation to this Agreement it is deemed that the Customer has accepted the terms and conditions in this Agreement; and

(o) no provision of this Agreement is to be construed against the interests of the Supplier because the Supplier prepared or relies on this Agreement;

(p) any invoice submitted under this agreement is a payment claim for the purposes of the and in accordance with the Building Industry Fairness (Security of Payment) Act 2017 (Qld).

3. AGREEMENT

3.1 The following documents together comprise the parties’ agreement (Agreement) with respect to the Services:

(a) Agreement

(b) Particulars;

3.2 The Agreement embodies the entire agreement between the parties. It supersedes any previous agreements, arrangements, correspondence, tenders, representations, proposals, understandings and communications, whether oral or written, in relation to or associated with the Services.

4. SUPPLIER’S OBLIGATIONS

4.1 The Supplier shall:

(a) Perform all obligations of the Supplier under the Contract in accordance with the conditions of the Contract and Schedules.

(b) Perform, fulfil, comply with, submit to, and observe all the provisions, conditions, stipulations and requirements and all matters pertaining to the scope agreed or reasonably to be inferred from the Contract.

5. AVAILABILITY OF GOODS

5.1 If, after the execution of this Agreement, any Good selected by the Customer becomes unavailable or cannot be delivered by the Delivery Date then, prior to exercising any rights the Customer may have under this Agreement or otherwise at law, the Supplier must notify the Customer that:

(a) the Good is unavailable or cannot be delivered by the Delivery Date; and

(b) the Good:

(i) will become available or be capable of being delivered within a reasonable amount of time after the Delivery date, provide notice of the expected date of delivery (New Delivery Date);

(ii) will not become available or be capable of being delivered within a reasonable amount of time after the Delivery date provide a list of alternative goods and their prices which can be delivered by the Delivery Date that are a similar price, quality, colour, design and size to the Good (Alternative Good).

5.2 If the Supplier provides notice in accordance with clause 5.1(b)(i) above, then, the Customer is deemed to accept the New Delivery Date and provides an extension of time to the Supplier to deliver the Goods by that time.

5.3 If the Supplier provides notice in accordance with clause 5.1(b)(ii), then the Customer may elect:

(a) to receive the Alternative Good in lieu of the Good; or

(b) have the Good omitted from the Deliverables.

5.4 If the Customer elects to receive an Alternative Good, or have a Good omitted from the Deliverables under clause 5.3, then the Fee shall be automatically increased or decreased taking into account the value of the Good and/or the Alternative Good.

6. CUSTOMER’S OBLIGATIONS

6.1 In consideration of the performance, obligations and covenants on the part of the Supplier in this Agreement, the Customer shall:

(a) make payment to the Supplier of the Supplier’s Fee in accordance with the conditions of the Contract; and

(b) perform, fulfil, comply with all the provisions, conditions, stipulations and requirements outlined in the Contract.

7. OBLIGATIONS OF THE SUPPLIER

7.1 The Supplier must:

(a) complete the Services:

(i) with due care and skill and to the best of its knowledge and expertise;

(ii) without any errors or omissions;

(iii) in a thorough and professional manner in accordance with Industry Best Practice.

7.2 Supplier warranty

(a) The Supplier warrants that the Services will meet the description of the Goods as set out in this Agreement.

(b) The Customer is deemed to have satisfied itself with the suitability of the Goods being supplied by the Supplier.

8. NON-COMPLIANT GOODS

8.1 Rectification of non-compliant Goods

If the Customer is not satisfied that the Goods comply with the requirements of this Agreement, the Customer may provide to the Supplier within 14 days of the Delivery of the Goods:

(a) written notice of why the Services do not comply with the Agreement;

(b) reasons as to why the Services do not comply with the Agreement;

(c) details of any corrective action within a reasonable time, and the Supplier must take such steps as are necessary to ensure that the Services comply with this Agreement and the Supplier agrees that no Fee will be payable to the Supplier by the Customer for any work done to rectify the non-compliance.

8.2 The Customer will have no entitlement to Claim any corrective action for any minor deviations of the Goods from the description of the Goods set out in Schedule 1.

8.3 If the Supplier fails to rectify the above non-compliances, then the Supplier agrees to refund to the Customer any payments made by the Customer in respect of the Services which do not comply with this Agreement.

9. DELIVERY AND INSTALLATION OF GOODS

9.1 Delivery

(a) The Supplier will ensure that the Goods are delivered by the Delivery Date.

(b) The Customer will be deemed to have taken delivery of the Goods when the Goods are delivered to the Site and once the Supplier provides notice of delivery to the Customer.

(c) Unless agreed otherwise, The Supplier may deliver the Goods in multiple deliveries in its sole and absolute discretion.

(d) The Supplier will notify the Customer of the expected delivery times for the Goods to be delivered.

(e) The Supplier will notify the Customer as soon as practicable if the Delivery Date cannot be achieved and will provide a new Delivery Date.

9.2 The Customer’s delay of delivery

If the Supplier is prevented from delivering or installing the Goods due to an act or omission of the Customer including but not limited to a failure to comply with the terms and conditions in this Agreement:

(a) The care for and risk in the Goods will be the responsibility of the Customer;

(b) The Customer will be required to pay for the Goods; and

(c) The Supplier will retain ownership of the Goods until delivery and installation can occur and the Customer will indemnify the supplier for any costs or expenses incurred by the Supplier, including the costs to deliver the Goods at a later date.

10. TITLE AND RISK

(a) Ownership of the Goods will pass to the Customer once payment is made for the Goods.

(b) The risk of ownership of the Goods will pass to the Customer once the Goods have been delivered in accordance with clause 9.1(b).

11. COMPLETION OF SERVICES

The Supplier must:

(a) perform the Services expeditiously and without delay;

(b) complete the Services in accordance with this Agreement;

(d) take all possible steps to avoid or, if it cannot be avoided, to minimise any delay.

12. VARIATIONS

12.1 Customer directed variations

The Customer may, by written notice to the Supplier, direct the Supplier to:

(a) increase, decrease or omit any part of the Goods and Services;

(b) change the nature or quality of any Goods or materials forming part of the Services to be supplied; or

A written direction by the Customer under this clause 12.1 must state that it is a variation under this clause 12.1.

12.2 Valuation

Subject to clause 12.3, the Fee must be adjusted by the amount equal to the value of the varied Services which will be calculated as follows:

(a) by agreement; or

(b) if no agreement can be reached, by applying reasonable market rates.

12.3 Change in Fee

The Supplier will only be entitled to an adjustment to the Fee under clause 12.2 where the Customer has provided to the Supplier a written direction to vary the Services.

13. INVOICING AND PAYMENT

13.1 Tax Invoices

The Supplier may claim payment at the times provided in Agreement Particulars. The Supplier shall include in any Tax Invoice sufficient detail to describe:

(a) the Goods being supplied;

(b) the Services carried out;

13.2 Time of payment and disputed tax invoices

(a) If the Customer disputes a Tax Invoice it must dispute the claim within 2 Business Days which:

(i) identifies the Tax Invoice which is being dispute;

(ii) states the amount of the payment, if any, that the Customer proposes to make in respect of the Tax Invoice (the “Scheduled Amount”); and

(iii) if the Scheduled Amount is less than the claimed amount, state why the Scheduled Amount is less, and if it is less because the Customer is withholding payment for any reason, the Customer’s reason for withholding payment.

(b) The Customer will pay the Scheduled Amount for Tax Invoices rendered to the Customer by the Supplier under clause 13.2 within the timeframe provided in Agreement Particulars.

(c) If the Customer does not dispute a Tax Invoice within the time stated in clause 13.2(a), then the amount claimed in the Tax Invoice shall become a debt due and owing to the Supplier.

13.3 Payment of Tax Invoice

13.4 Payments made by the Customer are evidence of the Customer’s acceptance that the Goods and Services have been performed satisfactorily in accordance with the Agreement.

13.5 Interest

13.6 The Customer will be liable to pay interest on any amounts overdue in the amount of 5% above the Reserve Bank of Australia cash rate.

13.7 Set-Offs by Supplier

The Supplier may deduct any amount owed by the Supplier to the Customer for any claim which the Supplier may have against the Customer whether or not the debt or Claim arises by way of damages, debt, restitution, or under this Agreement or otherwise.

14. CONFIDENTIALITY

14.1 The parties acknowledge that they may be given access to Confidential Information under this Agreement.

14.2 Each party must keep the Confidential Information confidential and must not divulge it to any third party or use it otherwise than:

(a) in performing its obligations under this Agreement;

(b) at the time of disclosure, the information was in the public domain other than by a breach of this Agreement;

(d) as required by any law, judicial body or governmental agencies; or

(e) by way of disclosure to its professional advisers who have agreed to keep the Confidential Information confidential.

14.3 Each party must not copy any document containing Confidential Information except to the extent necessary to perform its obligations under this Agreement.

14.4 The obligations of confidentiality in this clause 14 shall survive the termination of this Agreement.

15. SECURITY OF GOODS

15.1 Terms used in this clause that are defined in the Personal Property Securities Act 2009 (PPSA) have the meaning given by the PPSA.

15.2 In consideration of the Supplier supplying the Goods to the Customer at the request of the Customer, and until such time as the full payments for those Goods has been received by the Supplier, the Customer by signing these terms and conditions:

(a) grants to the Supplier a "Purchase Money Security Interest" (PMSI) in all Goods supplied by the Supplier to the Customer from time to time as security for payment of the purchase price of those Goods;

(b) grants to the Supplier a "Security Interest" (SI) in all of its present and “after-acquired property” and in all of its present and future rights in relation to any “personal property” from time to time as security for payment of any amount owed by the Customer to the Supplier and as security for the performance by the Customer of the obligations set out in these terms and conditions;

(c) agrees that the PMSI and SI has attached to all Goods supplied now or in the future by the Supplier to the Customer and that the attachment of the PMSI has in no way been postponed or deferred;

(d) acknowledges the Supplier reserves the right to and consents to the Supplier registering a financing statement in the Personal Properties Securities Register to perfect the PMSI and/or SI created pursuant to these terms and conditions;

(e) agrees that the costs of registering a financing statement or a financing change statement can be charged to the Customer by the Supplier;

(f) must promptly, on request by the Supplier, execute all documents and do anything else reasonably required by the Supplier to ensure the PMSI and SI created under these terms and conditions constitute a perfected security interest;

(g) must not agree to allow any person to register a financing statement over any of the Goods in which the Supplier has any PMSI and/or SI without the prior written consent of the Supplier and will immediately notify the Supplier if it becomes aware of any person or entity taking steps to register a financing statement in relation to any such Goods;

(h) must not do anything that results in the Supplier having less than the security or priority granted by the PPSA that the Supplier assumed at the time of perfection, subject only to the rights of a mortgagee pursuant to a registered mortgage, if the Supplier perfects any PMSI and/or SI that it has in relation to the Goods;

(i) irrevocably grants to the Supplier the right to enter upon the Customer's property or premises, without notice, and without being in any way liable to the Customer or to any third party, if the Supplier has cause to exercise any of its rights under the PPSA, and the Customer indemnifies the Supplier from any claims made by any third party as a result of such exercise;

(j) To the extent permitted by law:

(i) for the purposes of sections 115(1) and 115(7) of the PPSA:

(A) the Supplier need not comply with sections 95, 118, 121(4), 125, 130, 132(3)(d) or 132(4); and

(B) sections 142 and 143 are excluded.

(C) for the purposes of section 115(7) of the PPSA, the Supplier need not comply with sections 132 and 137(3) of the PPSA;

(k) to the extent permitted by law, the Customer waives:

(i) its rights to receive any notice that is required by:

(A) any provision of the PPSA (including a notice of a verification statement); or

(B) any other law before a secured party or Receiver exercises a right, power of remedy; and

(ii) any time period that must otherwise lapse under law before a secured party or Receiver exercises a right, power or remedy.

(l) Nothing in this clause prohibits the Supplier or any Receiver from giving a notice under the PPSA or any other law.

15.3 The Customer holds the Goods as agent for the Supplier and where payment is not made by the Customer for all or part of the Goods, then (without prejudice to the Supplier’s other rights), the Customer acknowledges and agrees that the Supplier may, without further notice to the Customer, enter any premises occupied by the Customer (or any other place where the Goods may be located) and recover possession of the Goods.

16. WARRANTY

16.1 Warranty period

(a) The Supplier warrants that the Goods will be free from defects except for minor omissions on the same terms and conditions and warranty period as provided by the manufacturer of the Goods (Warranty Period). The Customer will be provided with a copy of the manufacturer’s terms and conditions on the Delivery Date.

(b) The Customer acknowledges and agrees that the Supplier has the ability to test the Goods to assess the extent of the defect and the validity of the warranty being claimed.

(c) The Customer will have no entitlement to the warranty in this clause if the defect in the Goods has arisen from an act or omission of the Customer including but not limited to:

(i) failing to maintain the Good;

(ii) misusing the Good;

(iii) general wear and tear; and

(iv) not using the Good for its intended purpose.

(d) The Customer is required to lodge a warranty claim to the details listed in Agreement Particulars.

16.2 Unsafe Goods

If, due to no fault by the Customer, the Good becomes unsafe to use during the Warranty Period, the Customer must:

(a) immediately refrain from using the Good and notify the Supplier in writing;

(b) take all necessary action to avoid any injury to any person or property caused by the use of the Good;

(d) not attempt to rectify the Good without the Supplier’s prior written approval.

Any rectification of the Good undertaken by the Customer or by an independent third party will waive the warranty provided in clause 16.1.

17. LIMITATION OF LIABILITY

To the extent permitted by law, whether express or implied:

(a) all guarantees, conditions and warranties are excluded from this Agreement.

(b) the Supplier’s liability to the Customer is excluded for any costs, expenses, losses and damages suffered or incurred directly or indirectly by the Customer in relation to this Agreement, whether the liability arises in contract, statute tort or otherwise at law; and

The Supplier’s maximum aggregate liability to the Customer under this Agreement is limited to:

(d) for Goods, at the Supplier’s discretion, replacement of Goods with equivalent goods, repairment of Goods, or paying the repair or replacement costs for the Goods;

(e) for services, at the Supplier’s discretion, redoing the services or paying the cost of the services to be repeated.

Nothing in this Agreement, excludes, restricts or modifies any right or remedy implied or imposed by legislation which cannot lawfully be excluded or limited, including but not limited to the Consumer Law.

17.2 Notice

(a) A notice, consent or communication under this Agreement is only effective if it is:

(ii) in writing, signed by or on behalf of the person giving it;

(iii) addressed to the person to whom it is to be given; and

(iv) given as follows:

(A) delivered by hand to that person’s address;

(B) sent by prepaid mail (and by prepaid airmail if the person is overseas) to that person’s address; or

(C) sent by email to that person’s email address where the sender receives an email receipt, or other written confirmation from the recipient to the sender which indicates that the email was received at the email address of the recipient.

(b) A notice, consent or communication delivered under clause 17.2(a) is given and received:

(i) if it is hand delivered or sent by fax or email:

(A) on a Business Day – on that day; or

(B) on a Business Day, or at any time on a day that is not a Business Day – on the next Business Day; and

(ii) if it is sent by post:

(A) within Australia – 3 Business Days after posting; or

(B) to or from a place outside Australia – 7 Business Days after posting.

(iii) A person’s address and email address are those set out in Agreement Particulars, or as the person notifies the sender.

18. CUSTOMER TO REIMBURSE THE SUPPLIER

(a) The Customer must indemnify the Supplier against all or any liability and must reimburse to the Supplier all moneys which the Customer may pay or allow to be called upon or liable to pay or allow in respect of the Supplier’s liability if:

(i) the Customer commits a breach of this Agreement;

(ii) the breach causes the Supplier to become liable for the allowance or payment of damages (whether liquidated or otherwise) to any person.

(b) the Supplier is not required to incur expenses or to make any payments before exercising its indemnity rights under this Agreement.

19. DISPUTE RESOLUTION

19.1 Notice of Dispute

(a) If a difference or dispute arises between the parties in relation to this Agreement, then either party must provide the other party with a written notice of dispute, either by hand or by registered post, which provides full details of the particulars of the dispute.

20. DISPUTE RESOLUTION

20.1 Notification of dispute

Any dispute between the Supplier and the Customer must be referred:

(a) initially for resolution by a representative nominated by the Supplier and a representative nominated by the Customer, who must use their best endeavours to resolve the dispute within 14 days of the giving of notice of a dispute by a party; and

(b) if the dispute is not resolved in accordance with clause 0(a), the dispute may be referred by either party to mediation.

20.2 Mediation

If a dispute is referred to mediation the dispute will be referred to a mediator appointed by the Resolution Institute.

21. TERMINATION OF AGREEMENT

21.1 Customer Default

(a) A default by the Customer includes the Customer:

(i) failing to pay an amount due within the timeframe set out in the Agreement Particulars;

(ii) committing an Insolvency Event; or

(iii) committing a breach any term in the Agreement, and fails to rectify the breach within 5 Business Days after being requested in writing to do so by the Supplier;

21.2 If the Customer defaults under the Agreement then the Supplier may in its absolute discretion:

(a) Demand payment of all amounts owed by the Customer;

(b) Recover any Goods supplied to the Customer that have not been paid for by the Customer;

(d) Terminate the Agreement by providing 5 Business Days’ notice to the Customer;

(e) Re-sell or retain the Goods recovered from the Customer and recover from the Customer as a debt the difference between the net proceeds for the Goods and the amount owed by the Customer.

21.3 Termination by Supplier

The Supplier may terminate this Agreement by written notice to the Customer, at any time for its sole convenience upon providing 5 Business Days’ notice.

21.4 Supplier’s rights not affected by termination

Any expiration or termination of this Agreement does not affect:

(a) any of the Supplier’s rights which may have accrued before the date of expiration or termination; and

(b) the rights and obligations of the parties under this Agreement which survive termination.

22. GST

(a) All prices in this Agreement will be exclusive of GST unless stated otherwise.

(b) The Supplier warrants that, if required law, it is registered for GST purposes.

23. GENERAL

23.1 Amendments

This Agreement may only be amended by written agreement between all parties.

23.2 Assignment

The Customer may only assign this Agreement or a right under this Agreement with the written consent of the Supplier.

23.3 Counterparts

This Agreement may be signed in any number of counterparts. All counterparts together make one instrument.

23.4 No merger

The rights and obligations of the parties under this Agreement do not merge on completion of any transaction contemplated by this Agreement.

23.5 Entire Agreement

(a) This Agreement supersedes all previous agreements about its subject matter and embodies the entire agreement between the parties.

(b) To the extent permitted by law, any statement, representation or promise made in any negotiation or discussion, has no effect except to the extent expressly set out or incorporated by reference in this Agreement.

(c) Both parties acknowledge and agree that they have not relied on any prior conduct or representation by the other party in entering the Agreement.

23.6 No waiver

(a) The failure of a party to require full or partial performance of a provision of this Agreement does not affect the right of that party to require performance subsequently.

(b) A single or partial exercise of or waiver of the exercise of any right, power or remedy does not preclude any other or further exercise of that or any other right, power or remedy.

(c) A right under this Agreement may only be waived in writing signed by the party granting the waiver, and is effective only to the extent specifically set out in that waiver.

23.7 Governing law and jurisdiction

This Agreement is to be governed and determined by the law in which the Goods and Services are being delivered and the parties submit to the jurisdiction of the Courts of that State with respect to any proceedings which may be brought at any time relating to this Agreement.

23.8 Severability

(a) A clause or part of a clause of this Agreement that is illegal or unenforceable may be severed from this Agreement and the remaining clauses or parts of the clause of this Agreement remain in force.

(b) If any provision is or becomes illegal, unenforceable or invalid in any jurisdiction, it is to be treated as being severed from this Agreement in the relevant jurisdiction, but the rest of this Agreement will not be affected.