General Terms and Conditions (Agreement)
This Agreement outlines our general terms and conditions upon which we provide our Goods and Services. We agree to provide our Goods and/or Services in accordance with the provisions of this Agreement. By purchasing our Goods and/or Services, You also agree to the terms of this Agreement. This Agreement together with your Purchase Agreement, Order and/or written or verbal quotation forms the entire agreement between us. Nothing in this Agreement removes or limits any rights that You have under Australian Consumer Law.
We reserve the right to make changes to this Agreement at any time and will provide You notice by e-mail or by posting the changes on our Website (www.foundspace.com.au).
- We will supply Goods or Services to You upon you placing an Order online, by phone, by e-mail in-person.
- Each Order fulfillment is subject to us having the Goods available to fulfil the order, or subject to our availability to provide the Services. We reserve the right to refuse to supply the Order, in whole or in part, at any time.
- A 10% deposit is required at the time of placing the If the Order is not fulfilled for whatever reason, we will return any amount paid to You less any applicable shipping, administrative or late payment fees.
- The Price shall be as indicated on tax invoices provided to You for the Goods supplied and/or Services provided. You must make full payment of the Price on or before the date of Delivery.
- We reserve the right to change the Price in the event of a variation to the Order. If the Price is changed by us, written or verbal notice shall be provided to You within a reasonable time.
- Time is of the essence in making payment of the Price and any other applicable fees and charges as provided in a tax invoice given to You.
- The Price is inclusive of GST, and GST will be paid by You.
- We will ensure the tax invoice provided to You complies with the GST Act.
- Dishonoured or rejected payments
If any cheque issued by You or by any third party in payment of the Price is dishonoured, or any transaction is returned declined, we will impose a dishonoured cheque fee or rejected payments fee of $30.00. This amount is payable in addition to any Price.
- Provision of Services
- We reserve the right to:
- Decline requests for any Services requested by You; and
- Cancel or reschedule appointments at our sole discretion.
- Where relevant, You shall ensure that we have full and safe access to the Premises and any necessary equipment, materials and information, failing which we reserve the right to charge penalty fees and charges, including rescheduling fees and waiting fees.
- Subject to compliance with security requirements and access restrictions imposed by You, we will provide the Services during such hours and on such days as we consider necessary and appropriate to ensure compliance with our obligations under this Agreement.
- Unless specified to the contrary in the Order, we do not warrant that we will be capable of providing the Services at specific times requested by You.
- We may agree to provide, if requested by You, additional Services not included or specifically excluded in the Order. In this event, We reserve the right to charge additional fees for the additional Services. Additional Services includes, but is not limited to, alterations, amendments, and any additional visits by Us after provision of the Goods and/or or Services at Your request.
- You are responsible for obtaining any prerequisite fencing, building or other necessary approvals to comply with the lawful delivery, installation and use of the Goods supplied.
- You are responsible for obtaining and ensuring that your flooring is suitable for the provision of Services, including the installation of any Goods. We will advise as to any flooring requirements prior to delivery.
- You indemnify us and our employees and agents for any loss suffered due to the requisite approvals not being obtained or having been obtained but not complied with, and any other loss suffered during the provision of Services to You.
- We reserve the right to:
- Delivery of Goods
- Delivery of the Goods shall be deemed to take place when the Goods are collected by You, or are delivered to You at the Premises and:
- You receive and accept possession of the Goods; or
- A person apparently over the age of sixteen (16) at the Premises receives the Goods. (Delivery Date)
- You shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. If You fail to take delivery of the Goods as arranged, then we will be entitled to terminate the agreement and/or to charge a reasonable fee for redelivery.
- You acknowledge that there may be delays in receiving your Goods due to circumstances beyond Our control. Such delays do not give rise to a right to refund or cancel the Order.
- Delivery of the Goods shall be deemed to take place when the Goods are collected by You, or are delivered to You at the Premises and:
- Risk and Liability
- If You arrange and/or assist with delivery of the Goods, risk in the Goods shall pass when You or an agent acting on Your behalf assumes possession or control of the Goods. In all other instances, risk and title in the Goods passes when the Goods have been delivered to you in accordance with clause 6(a).
- We are not liable to You for any damage to or loss of the Goods whilst being delivered to You.
- You acknowledge that we are not liable for, and You agree to release us from:
- Any loss or damage or for consequential loss or damage, loss of income, loss of profit or interruption of business;
- liability for any injury or death to any person or damage to any property arising directly or indirectly from the Goods or its use;
- Any claims in respect of faulty or defective Goods supplied or delivered.
- We are not liable for, and you agree to hold us harmless from any loss or damage, including consequential loss or damage, arising directly or indirectly from your reliance upon any statement, recommendation, advice or assistance provided by us, our employees and any agents of ours, from time to time.
- You acknowledge it is your responsibility to fully inform yourself and understand the risks associated with the Goods and Services.
- You acknowledge that we offer no guarantee or warranty whatsoever that the Goods offered to You will have any beneficial medical effect.
- We are not liable for loss or damage, fault, failure or malfunction due to any:
- External causes including, but not limited to, accident, abuse, misuse, problems with electrical power;
- Servicing and/or repairs and/or alternations undertaken or provided by a third party;
- Usage and/or storage and/or installation not in accordance with instructions, failure to perform required preventive maintenance or normal wear and tear; and
- Acts of God including, but not limited to, fire, flood, war, pandemic, power surges or other like occurrences.
- If our ability to perform our obligations is adversely affected by any cause beyond our reasonable control, we may terminate the Agreement by giving You written notice.
- You may reject any Goods which are wrongly supplied or oversupplied, or which are defective, by notifying us of your claim in writing within seven (7) days of the Delivery D
- You must not return any Goods to us unless you have first notified us of your intention to return the Goods and done all things necessary to permit us to examine the Goods. Such inspection is to be carried out within a reasonable time after notification.
- For defective Goods, which we have agreed in writing that You are eligible to reject, our liability is limited to either (at our sole discretion) replacing the Goods or repairing the Goods provided that the Goods:
- Are scheduled for pick up within seven (7) days after we accept your claim, such returns to be organised at Your sole expense;
- Are returned to us in the condition in which they were delivered and with all packaging material, brochures and instructions; and
- Have completed a physical inspection by us to confirm the defects.
- If the Goods returned by You do not comply with clause 8(c) we reserve the right to deduct the cost of any loss in resale value and any restocking fee which we deem to be reasonable from time to time.
- We reserve the right to approve a refund instead of providing a replacement or repair for defective Goods on a case-by-case basis.
- Except as provided in this Agreement all express warranties, guarantees and conditions under statute or general law as to merchantable quality, description, quality, suitability or fitness of the Goods for any purpose are expressly excluded and You acknowledge You have not relied on any representation or warranty from us with respect to the merchantable quality, description, quality, suitability or fitness of the Goods.
- To the extent permitted by law, damages for breaches of warranties implied by law are limited to repair or replacement of the Goods or the resupply of the services, at our sole discretion.
- If You are in default of any payment and the default persists after a request in writing has been made by us to you, all warranties shall cease and we shall thereafter in no circumstances be liable under the terms of any warranty.
- Any attempt by any person other than us to adjust, repair or otherwise alter the Goods or Services will render any warranty void.
Warranty for Goods
- The warranty for Goods supplied shall be the current warranty provided by the manufacturer or by Us. We are not bound by nor are responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Goods.
- Warranty for Goods shall only cover the cost of Goods. You acknowledge that additional costs incurred, such as labour and/or freight, must be borne by You.
- Retention of Title
- While risk in the Goods shall pass on delivery (including all risks associated with unloading), legal and equitable title in the Goods shall remain with us until full payment for all Goods is made by You. Pending such payment, You hold the Goods as bailee for us and shall return the Goods to us if so requested.
- We reserve the following rights in relation to the Goods until the Price, and all associated fees and charges, is fully paid:
- To enter Your premises (or the premises of any third parties, associated company or agent where the Goods are located) without liability for trespass or any resulting damage in retaking possession of the Goods; and
- To keep or resell any Goods repossessed pursuant to above. If the Goods are resold, or products manufactured using the Goods are sold, by You with or without our consent, You will hold such part of the proceeds of any such sale as represents the invoiced Price of the Goods sold or used in the manufacture of the Goods sold in a separate identifiable account as the beneficial property of us and must pay us the sum immediately upon our request.
- Notwithstanding the provisions above we are entitled to maintain an action against you for the purchase Price, and all applicable fees and charges, and the risk of the Goods shall pass to you in accordance with clause 8.
- Without prejudice to any of our rights, You may be charged account keeping fees of $30.00 monthly on any payment in arrears, in addition to any interest rates on amounts outstanding.
- The interest rate on amounts outstanding accrues and compounding daily and will be set as 12% per annum, or as determined by us from time to time.
- If we do not receive the outstanding balance for the Goods prior to delivery or on or before the due date as stipulated on the tax invoice(s), we may issue You a demand letter.
- If we do not receive the outstanding balance for the Goods or Services prior to delivery or within fourteen (14) days from the date of a tax invoice or by the due date stipulated in the demand letter (Default Date), we may, without prejudice to any other remedy we have, forward your outstanding account to a debt collection agency or solicitor for further action. You acknowledge and agree that:
- After the Default Date, the Outstanding Balance shall include all applicable fees and charges under this Agreement, including account keeping, interest and late payment fees;
- We may incur costs charged by the debt recovery agency on the Aggregate Sum (as defined below) at an applicable rate agreed between us and the debt recovery agency (Commission Rate);
- You must pay the aggregate of the Outstanding Balance on Your account and all debt recovery costs incurred by us (Aggregate Sum), the intention of the parties being that we will receive the whole outstanding balance after the deduction of debt recovery costs and other expenses;
- The Aggregate Sum will be calculated as follows:
Aggregate Sum = Outstanding Balance
(1 – Debt Recovery Costs)
- The Aggregate Sum may be referred to a debt collection agency for further action; and
- The Aggregate Sum will be payable as a liquidated debt on demand;
- You are also responsible for all expenses in relation to the collection of the Aggregate Sum including, but not limited to, all charges and fees, legal costs on an indemnity basis, and disbursements.
- You shall have no right of set-off in any suit, claim or proceeding brought by Us against You for any default in payment.
You are responsible for effecting whatever insurance cover you require at your own expense. We are not responsible for insurance for the Goods and You acknowledge that any Goods delivered by us are not covered by insurance unless otherwise agreed in writing with us.
- Dispute resolution
- If a dispute arises, before any proceeding is commenced the party claiming that a dispute has arisen must give 7 days notice to the other party setting out the dispute and seeking discussion and compromise to resolve the dispute.
- If after 7 days the dispute is not resolved then it must be referred to mediation on the same terms as those ordered by the Supreme Court of Victoria and the costs of the mediation shall be borne by the parties equally.
- Notwithstanding the preceding provisions of this clause, We must continue to provide the Services and perform Our obligations under this Agreement pending resolution of the dispute.
- Nothing in this clause will prevent either party from seeking urgent interlocutory relief.
- Termination, Cancellation & Deferral
- We may cancel any Order or Purchase Agreement or cancel, suspend or delay delivery of Goods or provision of Services at any time before the Goods are delivered or Services performed by giving written or verbal notice to You. Upon giving notice of cancellation we will repay You any sums paid in respect of the Price, less any applicable fees and charges.
- You acknowledge that in the event of any breach of this Agreement by us, Your remedies shall be limited to damages which under no circumstance shall exceed the amount paid by You toward the total Price. We are not liable for any consequential loss or damage whatever arising from any Order cancellations.
- Without prejudice to our other remedies at law, we are entitled to immediately terminate the agreement without notice to You in the following circumstances:
- You become insolvent, convene a meeting with Your creditors, propose or enter into an arrangement with creditors, or make an assignment for the benefit of Your creditors;
- You die, become incapacitated or indicate (expressly or by conduct) that You are about to cease to carry on business; or
- A receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of You or any of Your assets.
- Without affecting our rights to seek other remedies and without limiting Your obligations arising from our acceptance (expressed in writing or evidenced by conduct) of an Order or Purchase Agreement, we may, at our sole discretion accept a request for cancellation from You provided that You:
- Request cancellation of the Order within three (3) days of placing the Order; and
- Agree to incur a cancellation fee in the sum of five percent (5%) of the Price.
- The balance of the Deposit after the cancellation fee is deducted will be refunded to You within a reasonable time after cancellation. Deposit refunds are typically processed at the end of every calendar month.
- In the event that You cancel an Order (by words or conduct), You acknowledge and agree to forfeit the Deposit (if the deposit amount is less than the cancellation fee) and be liable for and indemnify us in respect of:
- Any loss, including consequential loss, incurred by us including, but not limited to, any loss of profits, storage fees, transport fees or reselling costs;
- The Price of the Goods ordered if we:
- Have placed an order with a third party supplier to meet Your order or;
- have notified You (verbally or in writing) that the Goods are ready for delivery.
- You will be deemed to have cancelled the Order by conduct if You fail to take delivery of the Goods within thirty (30) days of us notifying You that the Goods are available for delivery, unless You have requested a deferral of the delivery in writing per clause 15(h).
- If we notify You that the Goods are ready for delivery and You request (by words or conduct) us to store or hold the Goods on your behalf, such Goods will be held by us at the Your sole risk, and we shall be entitled to charge storage fees in respect of the Goods so stored, at the our prevailing rate from time to time.
- We will invoice You for storage fees on a monthly basis until such time that the Goods are delivered to You and full payment of the Price, and all fees and charges, is made.
A notice or other communication to a party must be in writing and delivered to that party or that party’s practitioner in one of the following ways:
- Delivered personally; or
- Sent by email to their email address when it will be treated as received when it enters the recipient’s information system.
This Agreement is governed by the laws of Victoria and the parties submit to the non-exclusive jurisdiction of the courts of that state. In the interpretation of this Agreement:
- References to legislation or provisions of legislation include changes or re-enactments of the legislation and statutory instruments and regulations issued under the legislation;
- Words denoting the singular include the plural and vice versa, words denoting individuals or persons include bodies corporate and vice versa, references to documents or agreements also mean those documents or agreements as changed, novated or replaced, and words denoting one gender include all genders;
- Grammatical forms of defined words or phrases have corresponding meanings;
- Reference to an amount of money is a reference to the amount in the lawful currency of the Commonwealth of Australia and is GST inclusive, GST being goods and services tax as defined in A New Tax System (Goods and Services Tax) Act 1999 (Cth) (GST Act). Where Services are provided outside of Australia GST does not apply;
- References to a party are intended to bind their executors, administrators and permitted transferees; and
- Obligations under this Agreement affecting more than one party bind them jointly and each of them severally.
- We, us and our means the Trustee for PMAK MARKETING TRUST trading as Found—Space (ABN 68 442 371 883).
- The Order shall be defined as a verbal or written request for the provision of Goods and/or Services by You which has been accepted by Us.
- The Goods include or extend to the items listed in any Quote or Order or Purchase Agreement.
- The Services include labour, installation, repair, servicing and maintenance work done by Us and include or extend to services listed in any Quote or Order or Purchase Agreement.
- The Price is the amount invoiced for Goods and/or Services provided.
- Indirect, Special or Consequential loss or damage includes;
- any loss of income profit or business; and
- any loss of good will or reputation; and
- any loss of value of intellectual property.
- The Premises is the address where:
- The goods are delivered to you; and/or
- The services are provided to you by us.
- Purchase Agreement means any invoice, order form, quotation, verbal acceptance of a Price by phone in cases of phone orders and any e-mail confirmation that you wish to purchase a Good and/or Service.
- Website means www.foundspace.com.au
- You means the customer who has signed the confirmation of acceptance of this Agreement.