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

1. Entire Agreement

(a) These terms and conditions, together with the Credit Application, Guarantor Terms, each Order whether accepted or not create the terms and conditions of this Agreement between Innerspace and the Customer. 
(b) The provision or acceptance of an Order will not form a separate agreement and any additional terms contained in any document (including hand amendments) provided by the Customer will not form part of this Agreement, unless agreed to in writing by Innerspace.
(c) The Customer is deemed to have read, understood and accepted this Agreement if at any time the Customer requests or accepts a Quote or Order or pays any deposit or any other monies in relation to a Quote or Order.

2. Definitions

The following definitions apply in this Agreement:

Agreement means the legally binding agreement comprising of these terms and conditions   the Credit Application and any Order.

Business Days means a day (other than a Saturday, Sunday or public holiday) on which banks are open for general banking business in Brisbane.

Change of Control means for a company, a change in:

(a) control of the composition of the board of directors of the company;
(b) control of more than half the voting rights attaching to shares in the company; or
(c) control of more than half the issued shares of the company;

Claim means a claim, demand, remedy, suit, injury, damage, loss, cost, liability, action, proceeding, right of action, claim for compensation or reimbursement or liability incurred by or to be made or recovered by or against a person, however arising and whether:

Communication means any written communication including each notice, consent, approval, request and demand) under or in connection with this Agreement.

Confidential Information means information that is by its nature confidential, including but not limited to information relating to the:

(a) the Customer or the Customer's clientele;
(b) personnel, policies, practices, clientele or business strategies of Innerspace; and
(c) intellectual property rights of a party;
(d) terms of this Agreement,
(e) but does not include information:
(i)  already rightfully known to the receiving party at the time of disclosure by the other party; or 
(ii) in the public domain other than as a result of disclosure by a party in breach of its obligations of confidentiality under this Agreement.

Consequential Loss means loss of revenue, loss of profits, loss of anticipated savings or business, pure economic loss, loss of data, loss of value of Furniture (other than the cost of repair), loss of opportunity or expectation loss, and any other form of consequential, special, indirect, punitive or exemplary loss or damages.

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

Creditworthiness means the valuation process performed by Innerspace to determine the likelihood of the Customer defaulting on its debt obligations. 

(a) ascertained or unascertained;
(b) immediate, future or contingent; and
(c) subject of a dispute, litigation, arbitration, mediation, conciliation or administrative proceedings;

Credit Application means an application by the Customer for Innerspace to issue them with credit.

Customer means the individual or company listed in Section 1 of the Credit Application or a Quote or Order.

Furniture means the movable articles, small accessories or fittings such as but not limited to tables, chairs or desk offered by Innerspace.

Innerspace means Innerspace (QLD) Seating & Systems Pty Ltd ACN 075 923 509

Insolvency Event means in respect of a party (the Insolvent), the appointment of an administrator, a receiver or receiver and manager in respect of the Insolvent, an application to a court or an order for the winding up of the Insolvent, or where anything analogous or having a substantially similar effect to any of the preceding events occurs.

Location means the geographical location where the Furniture will be used. This is often the Customer’s business premises.

Order means the agreed statement of work which sets out the Furniture to be acquired, quantity levels, prices, installation process (if applicable), delivery dates and payment terms. 

Privacy Law means:

(a) the Privacy Act 1988 (Cth); and
(b) any other law that governs the use, disclosure or management of data or information relating to persons.

PPS Act means the Personal Property Security Act 2009 (Cth).

PPSR means the Personal Property Securities Register established under the PPS Act.

Quote means the estimated price provided by Innerspace to the Customer in relation to a statement of work concerning the Furniture to be acquired, quantity levels, proposed delivery dates and payment terms;

Representative includes an employee, agent, officer, director, auditor, advisor, researcher, partner, consultant, contractor, sub-contractor or Related Entity of that person or of a Related Body Corporate of that person;

Security Interest has the meaning defined under the PPS Act.

Warranty Period means the period of time a warranty is valid as stipulated by the supplier of the Furniture.

Website means the website located at www.innerspace.net.au

2.2 Interpretation

Headings are only for convenience and do not affect interpretation.  The following rules apply unless the context requires otherwise:

(a) the singular includes the plural and the opposite also applies;
(b) if a word or phrase is defined, any other grammatical form of that word or phrase has a corresponding meaning;
(c)  mentioning anything after includes, including, or similar expressions, does not limit anything else that might be included;
(d)  a reference to a clause refers to clauses in this Deed;
(e)  a reference to a party, clause, schedule, attachment or annexure is a reference to a party, clause, schedule, attachment or annexure to or of this Deed and a reference to this Deed includes all schedules, attachments and annexures to it;
(f) a reference to a document is to that document as varied, novated, ratified or replaced from time to time;
(g) a reference to legislation is to that legislation as amended, re enacted or replaced, and includes any subordinate legislation issued under it;
(h) a reference to a party to this Deed or another agreement or document includes that party’s successors, administrators and permitted substitutes and assigns (and, where applicable, the party’s legal personal representatives, or a substituted or an additional trustee);
(i) if more than one person is identified as a Customer, that expression refers to them and binds them, jointly and severally; and an obligation or a liability assumed by, or a right conferred on, two or more persons binds or benefits them jointly and severally;
(j) a reference to a person, individual, the estate of an individual, authority, association, joint venture (whether incorporated or unincorporated), corporation, trust, partnership, unincorporated body or other entity includes any of them;
(k) a reference to information is to information of any kind in any form or medium, whether formal or informal, written or unwritten, for example, computer software or programs, concepts, data, drawings, ideas, knowledge, procedures, source codes or object codes, technology or trade secrets; and
(l) a reference to dollars or $ is to an amount in Australian currency.

3. Quotation and Orders

3.1 Quotes

(a) A Quote or indication of a price issued by Innerspace is an invitation to treat, not a contractual offer.
(b) A Quote is valid for 30 days from the date of issue by Innerspace.
(c) Innerspace reserves the right to cancel or modify a Quote at any time before the Customer has accepted a Quote.
(d) Accepted Quotes will be considered Orders following acceptance by the Customer in writing.
(e) An Order may only be cancelled in accordance with the terms of this Agreement.

3.2 Suitability

(a) Innerspace makes no representation or warranty as to the suitability of the Furniture for the Customer’s purposes. It is the Customer’s responsibility to satisfy itself as to such suitability

4. Furniture at Customer’s Location

(a) This clause applies where the Customer acquires Furniture from Innerspace or there is otherwise Furniture at a Location and the Customer has not paid in full for the Furniture.
(b) The Customer acknowledges that as between the Customer and Innerspace, Innerspace owns the Furniture, and the Customer holds it as bailee only. Innerspace retrains title to the Furniture, even if the Customer goes into liquidation or becomes bankrupt prior to paying in full.
(c) Except as agreed in writing by Innerspace, the Customer may not offer, sell, assign, sub-let, charge, mortgage, pledge or create any form of Security Interest over, or otherwise deal with the Furniture in any way.
(d) In no circumstances will the Furniture be deemed a fixture.
(e) The Customer must:
(i) not in any way alter, modify, tamper with, damage or repair the Furniture without Innerspace’s prior written consent; and
(ii) not deface, remove, vary or erase any identifying marks, plate, number, notices or safety information, on the Furniture;

5. Supply of Furniture

5.1 Furniture not available in all States

(a) The Customer acknowledges that the Furniture advertised by Innerspace whether in print or on the Website is provided by a third party supplier and may not be available in the Customer’s Location.
(b) Innerspace will use reasonable endeavours to keep the Website up to date with information concerning Furniture availability.
(c) In the event that a supplier no longer supplies Furniture in a Customer’s Location after the Customer has accepted a Quote from Innerspace, Innerspace will use reasonable endeavours to source a substitution.
(d) The Customer may cancel their Order by providing written notice to Innerspace, should Innerspace fail to find a suitable substitution, being Furniture of similar colour, design and size within 40 days of the Customer being notified of the Furniture no longer being available.
(e) If the Customer cancels an Order in accordance with clause 5.1(d), Innerspace is not required to refund payments for any already delivered Furniture to the Customer’s Location.

6. Sub-contractors

The Customer acknowledges that Innerspace may use sub-contractors to deliver the Furniture and agrees to continually indemnify and hold harmless Innerspace and its Representatives, from any loss suffered or incurred caused by the sub-contractor.

7. Delivery

7.1 What will be delivered and when

Innerspace will supply the Furniture to the Customer as stipulated in the Order.

7.2 Delivery

(a) Innerspace will use its best endeavours to deliver Furniture to the Location as set out in the Order or at the time agreed between the parties.
(b) Innerspace reserves the right to deliver the Furniture in multiple deliveries.
(c) Delivery of Furniture will be deemed to have taken place when the Furniture arrives at the Location.

7.3 Innerspace’s delay in delivery

(a) Innerspace will notify the Customer at the earliest practicable date if it believes that the delivery of Furniture will be delayed.
(b) Innerspace will advise the Customer of the new delivery date.

7.4 The Customer’s delay or prevention of delivery

If Innerspace is unable to deliver the Furniture because of an act or omission of the Customer including a failure of the Customer to fulfil its obligations under this Agreement:

(a) the risk in the Furniture will pass to the Customer;
(b) the Furniture will be deemed to have been delivered and all outstanding payments will be due; and
(c) Innerspace may store the Furniture until actual delivery is possible and the Customer will be liable for all related costs and expenses.

7.5 Installation

Where an Order includes installation services, if Innerspace is unable to install Furniture because of an act or omission of the Customer, including a failure to comply with its obligations under this Agreement:

(a) the risk in the Furniture will pass to the Customer;
(b) the Furniture will be deemed to have been delivered and all outstanding payments will be due; and
(c) Innerspace may store the Furniture until actual installation is possible and the Customer will be liable for all related costs and expenses.

8. Faults in Furniture

(a) Subject to clause 14, if the Customer, acting reasonably, finds the Furniture to be faulty, Innerspace agrees to rectify it within a reasonable time at its own expense. 
(b) Small deviations from the Furniture description will not entitle the Customer to reject the Furniture. 
(c) However, if any such fault is caused by the Customer’s direction to change the Furniture, the rectification shall be at the Customer’s expense.
(d) Nothing in this clause affects the Customer’s rights for any alleged failure of a guarantee under Consumer Law.

9. Payment

9.1 Payment Terms

(a) The Customer acknowledges and agrees that the following payment terms are applicable unless otherwise agreed in writing with Innerspace;
(i) Innerspace will invoice the Customer a value equal to 50% of an Order following the Customer accepting a Quote (Deposit).
(ii) The Customer will pay the Deposit within 7 days of receipt of the invoice issued in accordance with clause 9.1(a)(i).
(iii) Innerspace will invoice the Customer the remaining balance of an Order at least 14 days prior to the earliest anticipated delivery date of the Furniture (Remaining Balance).
(iv) The Customer will pay the Remaining Balance prior to delivery of any Furniture.
(b) For the avoidance of doubt, Innerspace reserves the right to delay manufacturing and/or delivery of the Furniture until the Customer has paid any invoice issued in accordance with this clause above.

9.2 GST

The Customer is responsible for paying all government charges or duties of any kind incurred in or in connection with Innerspace’s provision of credit, or supply of Furniture.  Such charges include without limitation all stamp duties, GST, financial institution duties, and any other charges or duties of a like kind.

10. Failure to pay

If the Customer fails to pay Innerspace any amount under this Agreement by the due date for payment, Innerspace may immediately do any or all of the following, without any liability, until all overdue fees are paid:

(a) charge the Customer interest on the overdue amount at 5% above the Reserve Bank of Australia cash rate;
(b) terminate this Agreement without any obligation to refund the Customer any money in respect of the cancellation, even if the contractual term of this Agreement has not expired;
(c) initiate proceedings against the Customer to recover the overdue amount (despite any dispute resolution clause in this Agreement); and
(d) recover all costs in relation to any action taken against the Customer to recover overdue amounts, including but not limited to legal costs and outlays on a full indemnity basis.

11. Security Interest

In order to secure the Customer’s obligations under this Agreement, including any obligation to pay any amount to Innerspace, the Customer:

(a) grants to Innerspace a Security Interest in respect of all goods sold, supplied, leased, bailed or otherwise provided or made available to the Customer by Innerspace and any proceeds thereof;
(b) consents to Innerspace perfecting such Security Interest by registration on the PPSR, including as a purchase money security interest; and
(c) undertakes to Innerspace to do all things reasonably necessary or required by Innerspace to assist Innerspace in perfecting the registration of the Security Interest on the PPSR; and
(d) waives, to the extent permitted by the PPS Act, its right to receive any notice of a verification statement or any other notice Innerspace would otherwise be required to give under the PPS Act.

12. When a Customer is in default

(a) The Customer will be in default if the Customer:
(i) fails to pay any amount on time;
(ii) gives Innerspace incorrect or misleading information in relation to the Credit Application; 
(iii) commits an act of bankruptcy;
(iv) undergoes an Insolvency Event; or
(v) breaches any term of this Agreement, and fails to remedy that breach within 10 Business Days;
(b) If the Customer is in default, then subject to any law (including requirements as to notice, Innerspace will have the right to:
(i) demand immediate payment of all moneys owed by the Customer to Innerspace whether due for payment or not;
(ii) recover from the Customer all Furniture it has supplied to the Customer whether paid for or not;
(iii) re-sell or otherwise dispose of the Furniture so recovered without reference to the Customer and apply the net proceeds to the Customer’s debt to Innerspace;
(iv) immediately cancel any Agreement, including any Order in effect with the Customer without any obligation to refund the Customer any money in respect of the cancellation; and
(v)  enforce any Security Interests against the Customer.
(c) In order to effect recovery of the Furniture in accordance with this clause, the servants or agents of Innerspace may:
(i) enter the Customer's Location (or any location under the control of the Customer or the Customer's agent if the Furniture are stored at other locations); and
(ii) use any reasonable force to effect recovery without liability for trespass or any resulting damage.

13. Innerspace’s set-off rights

(a) Innerspace, after having demanded payment of any amount overdue in accordance with clause 12, may apply any payment paid by the Customer, against:
(i) Innerspace’s costs and disbursements in recovering the amount due;
(ii) any interest accrued; or
(iii) the amount overdue.
(b) Innerspace may at any time set off any amount the Customer owes to Innerspace against any amount Innerspace may then owe to the Customer. 

14. Warranty

14.1 Warranty Period

(a) Innerspace warrants that the Furniture, including any customisation as per the Customer’s instructions such as finishes and material will be free from defects in materials and workmanship on the same terms and condition including the period of warranty as the warranties provided by the manufacturer of the Furniture. These terms and conditions will be supplied to the Customer at time of delivery.
(b) Innerspace reserves the right to inspect and test the product/s for the purpose of determining the extent of any defect and the validity of any claim made under this warranty.  All defective parts/products replaced by Innerspace under this warranty will be deemed to be the property of Innerspace.
(c) This warranty will not apply if the Furniture are rendered faulty by a factor other than a defect in materials and workmanship.  Such factors include but are not limited to:
(i) damage through misuse (including failure to maintain, service or use with proper care), neglect, accident or ordinary wear and tear (including deterioration of parts and accessories); and
(ii) use for a purpose for which the Furniture was not sold or designed.

14.2 Unsafe

(a) If, for a reason not caused by the Customer, Furniture becomes unsafe to use during the Warranty Period, the Customer must:
(i) immediately stop using the Furniture and notify Innerspace;
(ii) take all steps necessary to prevent injury occurring to persons or property as a result of the condition of the Furniture;
(iii) take all steps necessary to prevent any further damage to the Furniture itself; and
(iv) not repair or attempt to repair the Furniture without Innerspace’s written consent.
(b) Upon receiving notice of such a safety issue, Innerspace will take reasonable steps to repair or replace the Furniture as soon as reasonably possible.

14.3 Making a warranty claim

(a) To make a warranty claim, the Customer should contact Innerspace using the following email sales@innerspace.net.au

15. Liability

(a) If the Customer is a consumer within the meaning of the Consumer Law, there are certain rights (such as the consumer guarantees implied by the Consumer Law, which cannot by law be excluded (Non-Excludable Condition).  This clause is subject to those Non-Excludable Conditions.
(b) Subject to the application of any applicable Non-Excludable Condition and to the maximum extent permitted by law, Innerspace:
(i) excludes from this Agreement all guarantees, conditions and warranties that might but for this clause be implied into this Agreement;
(ii) exclude all liability to the Customer for any costs, expenses, losses and damages suffered or incurred directly or indirectly by the Customer in connection with this agreement, whether that liability arises in contract, tort or under statute; and
(iii) will not, under any circumstances, be liable to you for any consequential loss.
(c) If Innerspace’s liability under this Agreement cannot be lawfully excluded, to the maximum extent permitted by law, Innerspace’s liability for breach of any Non-Excludable Condition is limited:
(i) in the case of goods, to (at Innerspace’s option) the replacement of the goods or the supply of equivalent goods; the repair of the goods; the payment of the cost of replacing the goods or of acquiring equivalent goods; or the payment of the cost of having the goods repaired;
(ii) in the case of services, to (at Innerspace’s option) the supplying of the services again; or the payment of the cost of having the services supplied again.

16. Indemnity

The Customer indemnifies Innerspace and Innerspace’s Representative against all liability arsing from Claims for:

(a) any harm to, claim or action by a third party arising directly or indirectly from the Customer’s use of the Furniture;
(b) any personal injury or death arising directly or indirectly out of the Customer’s conduct;
(c) any damage to property arising directly or indirectly out of the Customer’s conduct;
(d) any negligent or unlawful act or omission by the Customer in connection with the Furniture;
(e) Innerspace or a third party’s reliance on a misleading representation made by the Customer;
(f) a contract in force between the Customer and a third party connected with the Furniture;
(g) Innerspace being obligated to correct data upon request by a person in accordance with Privacy Law;
(h) any complaints process initiated by a person under Privacy Law; or
(i) any other cost incurred by the Innerspace as a result of a person pursuing rights conferred upon them by Privacy Law.
16.2 Conditions of indemnity
(a) Innerspace may make a claim under indemnities in this Agreement in relation to a cost before having incurred the cost, or before making a payment in relation to the cost.
(b) The indemnities in this Agreement shall be in addition to any damages for breach of contract to which Innerspace may be entitled.  Nothing in the indemnities in this Agreement will be construed so as to prevent Innerspace from claiming damages in relation to the Customer’s breach of any term of this Agreement.
(c) Each indemnity in this Agreement is a continuing obligation, separate and independent from the other obligations of the parties and survives termination of this Agreement for whatever reason.

17. Dispute Resolution

(a) Subject to clause 17(f) any dispute which arises between the parties in connection with this agreement (dispute) must be dealt with in accordance with the requirements of this clause 17, before either party will be entitled to commence proceedings against the other party in respect of the dispute.
(b) The party claiming that a dispute has arisen (complainant) must give the other party a written notice setting out a detailed explanation of the nature of the dispute; and what action the complainant thinks will resolve the dispute (dispute notice).
(c) Within 10 Business Days of the dispute notice being received by the other party, a nominated senior executive of each party must meet in Brisbane Queensland (unless otherwise agreed between the parties), act in good faith and use best endeavours to resolve the dispute at that meeting, or such subsequent meetings as may be reasonably required.
(d) If the dispute is not resolved pursuant to clause 17(d) within 30 days of the dispute notice being received by the other party, the parties agree to attend a privately held mediation with a mediator appointed by the nominated senior executive or both parties and in the absence of agreement within 7 days of disagreement by such mediator as appointed by the President, or person in like office of the Resolution Institute.
(e) If the dispute is not resolved within a further 30 days pursuant to clause 17(e) then either party may commence proceedings against the other party in respect of the dispute.
(f) Nothing in this clause 17 prevents a party from seeking urgent injective or similar relief from a court.

17.2 Dispute resolution not to apply to debts

The dispute resolution procedure set out in this clause 17 will not apply in any instance where Innerspace seeks to enforce a debt in connection with this Agreement.

18. Termination by Innerspace

Innerspace may terminate this Agreement immediately by written notice to the Customer if the Customer:

(a) is in material breach of this Agreement;
(b) is in default for more than 20 days;
(c) experiences a Change of Control;
(d) convicted of a criminal act; or
(e) experiences a change in its Creditworthiness.

19. Termination not to affect obligation to pay

Termination of this Agreement shall not affect the Customer’s obligation to pay any outstanding amounts or other amounts in relation to Furniture.

20. General

20.1 Confidentiality

(a) A party will not, without the prior written approval of the other party, disclose the other party's Confidential Information.
(b) A party will not be in breach of this confidentiality clause in circumstances where it is legally compelled to disclose the other party's Confidential Information.
(c) Each party will take all reasonable steps to ensure that its employees and agents, and any sub-contractors engaged for the purposes of this Agreement, do not make public or disclose the other party's Confidential Information.
(d) Notwithstanding any other provision of this clause, a party may disclose the terms of this Agreement (other than confidential information of a technical nature) to its related companies, solicitors, auditors, insurers and accountants.

20.2 Communications

(a) Communications must be in writing.
(b) Either party may serve any communication on the other party by sending it to that party’s email address.  A communication by email will be taken to have been received by the addressee at the earlier of the time stated in a read receipt sent by the recipient’s computer or when the message has been delivered to the email address of the addressee
(c) If delivery is made after 5:00pm on a Business Day, it must be treated as received on the next Business Day.

20.3 Inconsistency with other documents

If this Agreement is inconsistent with any other document between the parties, this Agreement prevails to the extent of the inconsistency.

20.4 Counterparts

This Deed may be executed in any number of counterparts including where they are exchanged by facsimile or by email containing this Deed as an unalterable attachment. All counterparts together will be taken to constitute one instrument.

20.5 Reliance

Neither party has entered into any agreement in reliance on or as a result of any representation, promise, statement, conduct or inducement by the other otherwise than as set out in this Agreement.

20.6 Relationship of parties

The relationship of the parties does not form a joint venture, partnership or agency, or create any form of employment relationship. 

20.7 Severability

Any clause of this Agreement, which is invalid or unenforceable, is ineffective to the extent of the invalidity or unenforceability without affecting the remaining clauses of this Agreement. 

20.8 No waiver except in writing

No part of this Agreement will be deemed waived and no breach excused unless such waiver or consent is provided expressly and in writing.

20.9 Governing law

The laws of Queensland govern this Agreement.  Each of the parties hereby submits to the non-exclusive jurisdiction of courts with jurisdiction there.

20.10 Amendment

This Agreement may only be amended in writing by Innerspace.

20.11 Assignment

(a) The Customer cannot assign, novate or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of Innerspace. 
(b) Innerspace may assign, novate or otherwise transfer any of its rights or obligations under any contract arising from this Agreement to a third party without notice to, or the prior consent of the Customer, but if Innerspace requires, the Customer will sign any documents to give effect to an assignment, novation or transfer by Innerspace under this clause.

20.12 Unforeseen Event

(a) The obligations of the parties under this Agreement are suspended to the extent that an occurrences or conditions beyond its control, including but not limited to acts of terrorism, acts of God, war strikes, civil disorder, disasters or changes to government regulations (Unforeseen Event) affects them, as long as the Unforeseen Event continues.  However, if an Unforeseen Event continues for more than 40 Business Days, Innerspace may terminate this Agreement by notice in writing to the Customer of not less than 10 Business Days. 
(b) The occurrence of an Unforeseen Event does not suspend the obligation of the Customer to pay any money under this Agreement.
(c) A party claiming an Unforeseen Event must use their best endeavours to remove, overcome or minimise the effects of that Unforeseen Event as quickly as possible.