1.1 In this document:
Accessories means all modules, goods, appliances, furniture, homewares and associated accessories referred to in the Purchase Transaction and provided to you in connection with this Purchase Transaction.
Australian Consumer Law means the Australian Consumer Law as set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth).
Building means the specific building chosen by you that is set out in the Purchase Transaction, together with any Accessories ordered in the Purchase Transaction by you.
Claim means any claim, action, proceeding or demand, howsoever arising and whether present, future, fixed, unascertained, actual or contingent.
Consequential Loss includes (but may not be limited to) any loss of revenue, data, reputation, profits, bargain, actual or anticipated savings, opportunities, consequential loss, and indirect loss.
Contract means the Purchase Transaction these Terms and Conditions and any other document which is attached to or incorporated by reference in it, the Purchase Transaction or the Terms and Conditions.
Event of Default has the meaning given in clause 21.1.
Force Majure Event means any event beyond the control of either party, including (without limitation) theft, acts of God, war, terrorism, mobilization, civil commotion, riots, embargoes, orders or regulations of governments of any relevant jurisdiction, fire, flood, storm, tempest, strikes, lockouts or other labour difficulties, shortages of or inability to obtain shipping space or land transportation.
Insolvency Event means any of the following:-
(a) A controller (as defined in the Corporations Act 2001 (Cth) is appointed to You, or over any of the property of You;
(b) You become bankrupt;
(c) A controlling trustee is appointed to You or over its property;
(d) You or your property becomes subject to a personal insolvency arrangement under part X of the Bankruptcy Act 1966 (Cth) or a debt agreement under part IX of that Act;
(e) You are unable to pay its debts when they are due and payable;
(f) You cease to carry on business; or
(g) Any event happens in Australia or any other country or territory in respect of You that is similar to any of the events or circumstances referred to in this definition.
Installation means the Building contained in your Cart as chosen by You, installed at your site on footings determined by Spacee at its sole discretion. Spacee is not responsible for connection of any plumbing, electrical or other main connections.
Liabilities means any liability, loss, cost (including all legal costs and expenses on a full indemnity basis), expense, damage, charge, penalty, outgoing or payment, however arising, whether civil or criminal, and whether present, unascertained, future or contingent.
Materials means a material or component used by Spacee in the manufacture of the Building.
Object means to object generally and includes (without limitation) to:-
(a) Avoid or attempt to avoid this Contract;
(b) Refuse to accept the Building on Delivery or Practical Completion;
(c) Object to a variation, change or substitution;
(d) Seek an injunction;
(e) Require Spacee to carry out any works or tasks or specific performance;
(f) Delay Delivery, Practical Completion or any other contractual obligations;
(g) Seek to Claim any compensation of any nature;
(h) Pursue Spacee by any means;
(i) Seek any reduction of or attempt to retain any part of the Price.
PPSR means the Personal Property Securities Register.
PMSI means a purchase money security interest as defined in the PPSA.
PPSA means the Personal Property Securities Act 2009 and any other legislation and regulations in respect of it and the following words, and all related terms, in clause 17 and have the respective meanings given to them in the PPSA: “security interest”, “security agreement”, “financing statement”, “financing change statement”, “verification statement”, “attached”, “attachment” and “perfected”.
Practical Completion means:-
(a) The Building contained in your cart.
(b) If this Contract is for the supply only, the date upon which You (or any employee, agent, contractor or representative thereof) begins loading the Building onto its vehicle for departure from the warehouse or factory of Spacee;
(c) If this Contract is for the supply and delivery, the date upon which delivery to the Site nominated by You are effected, irrespective of whether You are in attendance for delivery; and
(d) If this Contract is for the supply, delivery and installation of the Building on the Site, the date Spacee advises installation is complete and the Building is ready for use.
Price means the amount set out in the Purchase Transaction as being payable by You for the Building supplied in accordance with the Contract.
Purchase Transaction means the written transaction with all nominated attachments, prepared and submitted to You by Spacee for the supply of the Building at the specified Price, which is subject to these Terms and Conditions.
Security means any security given by You or the Guarantor for the performance of and in accordance with the terms of this Contract.
Site means the site or location to which the Building shall be delivered and if applicable, constructed and erected, as set out in the Purchase Transaction.
Terms and Conditions means the terms and conditions set out in the Purchase Transaction (if any) and those that are set out herein.
Used Goods means goods owned by Spacee which have been used and which may have been modified by Spacee for the purposes of the Contract.
Workmanship means the handling, assembly, erection or construction processes performed by or on behalf of Spacee to erect the Building on the Site.
You means the party referred to as such in the Purchase Transaction.
2. Sale and Purchase
In consideration of the Price, Spacee agrees to sell and You agree to purchase the Building, including the Accessories on the terms and conditions of this Contract.
3. The Purchase Transaction
3.1 Unless otherwise stated by Spacee, any Purchase Transaction shall lapse 14 days from the date of issue and may be:-
(a) Extended with the mutual written agreement of both parties; or
(b) Withdrawn by Spacee at any time, in its discretion.
3.2 You may not Object in the event of any extension or withdrawal in accordance with the above.
3. Acceptance of Purchase Transaction
3.1 In the event that You require Spacee to provide an invoice or Purchase Transaction to a financier or leasing company, Spacee must be advised at the time of issuing the Purchase Transaction.
3.2 Acceptance of a Purchase Transaction will result in You being bound by the Contract, which will occur on the earliest of the following:-
(a) Pushing ‘checkout’ at cart;
(b) Paying all or part of the Price, a deposit or any costs or expenses;
(c) Achieving Practical Completion; or
(e) Otherwise performing the Contract.
3.3 Spacee reserves the right to satisfy itself of Your credit worthiness at any stage of this Contract and should such credit worthiness be unsatisfactory to it, Spacee may (in its discretion), termi nate this Contract by notice in writing without being obligated to provide any reasons and You may not Object or make any Claim for any Liabilities in connection with such termination.
3.4 Spacee may, in its discretion and at any stage of this Contract, decline to supply the Building and may terminate this Contract without being obligated to provide any reasons and You may not Object or make any Claim for any Liabilities should Spacee elect to do so.
4 Time estimates
4.1 Spacee will advise You of the date upon which Practical Completion will be achieved, which is strictly conditional upon You performing all obligations and having paid all amounts due and payable under this Contract.
4.2 Time and dates of delivery are not of the essence and any advice given by Spacee, whether verbal or in writing as to Practical Completion or the date or timing thereof shall be an estimate made in good faith based on Spacee known manufacturing and/or project commitments at the time of the advice. Spacee reserves the right to revise any estimates given, in its discretion.
4.3 If the Building is delayed due to a Force Majure Event or any reason beyond the control of Spacee, then Practical Completion will be deemed extended for the period of delay and You advised in writing accordingly. Spacee will be entitled to be paid all reasonable costs of such delay including any additional costs, fees, charges, expenses or overhead recovery prior to effecting Practical Completion.
You may not Object and Spacee shall not be liable for any Claim or any Liabilities in connection with anything set out in this clause 4.
5 Payment Terms
5.1 You will pay the Price provided for in the Contract plus any adjustments and all applicable GST and any other charges set out in the Purchase Transaction immediately unless otherwise specified in the Purchase Transactions, such as in circumstances when finance is provided.
5.2 All costs associated with the delivery of the Building to the Site and/or the installation of the Building on the Site (if applicable) must be paid prior to delivery being effected, unless otherwise specified by Spacee.
5.2 If any amount is not paid when due and owing, You will pay interest on the unpaid amount, calculated monthly, at the rate equal to the cash rate target, set by the Reserve Bank of Australia plus 2%, from and including the due date until payment is received by Spacee in cleared funds.
5.3 All payments required to be made by You to Spacee under the Contract will be made free of any set off or counterclaim and without deduction or withholding whatsoever.
6. Risk, Practical Completion and Insurance
6.1 If this Contract is for the supply of the Building only (with no delivery or installation) You:-
(a) Acknowledges that they have inspected or had the opportunity to inspect the Building at the Spacee warehouse or factory upon completion of manufacture and assembly;
(b) Is deemed to have accepted the Building and Practical Completion will be deemed to have occurred immediately upon the loading of same onto Your delivery vehicle for departure; and
(c) You will bear all risk and liability immediately upon Practical Completion being effected.
6.2If this Contract is for the supply and delivery of the Building to the Site (with or without installation):-
(a) You acknowledges that they have inspected or had the opportunity to inspect the Building at the Spacee warehouse or factory upon completion of manufacture and assembly;
(b) You shall pay all transport and delivery costs, whether included in the Purchase Transaction or otherwise prior to delivery;
(c) Subject to clause 4 and 6.2(b), Spacee will use reasonable endeavours to ensure that delivery takes place no more than thirty (30) days from the date of receipt of all payments from You under this Contract;
(d) You will be deemed to have accepted the Building and will bear all risk and liability immediately upon Practical Completion being effected; and
(e) Spacee will take out an insurance policy to cover the Building up to Practical Completion only.
6.3 You shall provide Spacee’ insurer with all documentation, information and assistance to allow Spacee to arrange the insurance policies referred to above.
6.4 You shall also ensure that they have their own Public Liability (for no less than $50,000,000.00 for each and every claim), workers compensation and employer’s liability and other insurances for legal liabilities to third parties for bodily injury and/or property damage, in connection with any work carried out on Site or that is otherwise carried out by You, their employees, agents and contractors in relation to the Contract or the Building and must supply a copy of same to Spacee upon request.
6.5 For any motor vehicles used for any purpose in connection with this Contract, You must maintain or require the owner of such vehicles to maintain third party liability insurance covering all Claims and/or Liabilities in respect of any injury to, death of any person or any loss, damage or destruction to any property arising from the use of such motor vehicles.
6.6 If the performance of this Contract requires the use of any plant and equipment that will be used at the Site during installation, You must maintain or require the owner of such plant and equipment to maintain insurance covering all loss and damage to such plant and equipment, to full replacement value and such insurance must (unless prohibited by law) waive all express or implied rights of subrogation against Spacee and its directors, officers, agents, representatives and employees.
6.7 If delivery or Practical Completion is delayed at the request of You or because Spacee is unable access to the Site (for any reason other than Spacee’ own negligent acts or omissions), then You indemnifie Spacee against and will otherwise pay on demand:-
(a) The sum equal to Spacee current hourly rate for the area or delivery or pickup for each hour of waiting or standby time;
(b) Any additional or incidental charges associated with delayed delivery or Practical Completion; and
(c) All storage costs, relocation and weatherproofing costs, which shall be no less than $2.00 per square metre per week and the Building shall at all times, be stored (whether with Spacee or externally) at the sole risk and expense of You.
7. Ground anchors
7.1 Spacee recommends that all Buildings be secured to the ground on the Site with appropriate anchors or tie downs. The Price does not include the cost of tie downs unless specifically provided for in the Purchase Transaction.
8. Testing and Inspections
8.1 You shall bear the cost of all tests and inspections whatsoever and wherever such testing or inspections take place.
9. Site Conditions
9.1 You, at your own cost, shall assume all responsibility for all Site conditions on, above and below the surface, including all environmental matters as may be applicable to the Site, which shall include (without limitation) all roads entrances and exits and points of access leading to and from the Site. No statements, representations or warranties are made by Spacee in respect of the suitability, lawfulness or otherwise of anything sold pursuant to this Contract for any site or location (all of which are expressly negatived) and You are deemed to have relied on its own pre-contractual enquiries regarding such matters.
9.2 You warrant You have made all inspections and inquiries of all matters pertaining to the Site and warrants the Building is suitable for use on Site.
9.3 You will ensure that Spacee have sufficient access to the Site to do all things required to be done under the Contract and maintain any insurances. You will provide safe and adequate site facilities, including as to vehicular access for delivery and offloading, secure storage for Spacee’s equipment and suitable facilities so that Spacee can install the Building and otherwise perform its obligations safely.
10. Use of Building
10.1 You warrant that they will use and operate the Building in compliance with all applicable laws, statutes, regulations, standards, Codes of Practice, Building Codes, local, state and federal Government requirements and any recommendations from Spacee (if any) or the manufacturer of any Accessories sold pursuant to this Contract.
10.2 You also warrant it will only use and operate the Building for its intended use and have obtained all relevant consents, authorizations, licences and approvals and has paid all applicable fees for it to do so.
10.3 You acknowledges that no warranties as to any use (or the lawfulness thereof) are provided by Spacee in connection with any uses of the Building on the Site including no certifications being provided with Spacee.
10.4 You will not sell, transfer, hire, lease, assign, dispose of or part with possession or control of the Building to any person without the prior written consent of Spacee until all amounts owing have been paid in full.
10.5 You will not move, relocate, modify or otherwise change the position of the Building on Site after installation by Spacee, without its prior written consent.
11. Retention of Title
11.1 Title to the Building will not pass or be transferred to You until all amounts owing have been paid in full. Until full payment is received, the Building will be held at Spacee discretion, as bailee only and You must:-
(a) Store and identify the Building as belonging to Spacee;
(b) Not intermingle the Building with any other property;
(c) Not change or obscure in any way any identification markings that Spacee may have placed on the Building;
(d) Not deliver the Building or any document of title thereto to any person except as directed by Spacee;
(e) Not on-sell except to a bona fide purchaser for full market value; and
(f) Keep all proceeds from the sale in trust for and on behalf of Spacee in a separate bank account and promptly pay such proceeds to Spacee.
11.2 The payment referred to in clause 11.1(e) does not relieve You of its obligation to pay the Price in full under this Contract.
11.3 While the Building remains the property of Spacee, You have no right or claim to any interest in same and must not claim any set off or lien and must not create any absolute or indefeasible interest in the Building in favour of any third party, except where expressly authorized by Spacee.
12.1 You acknowledge and agree that the provisions of section 11 (Retention of Title) constitute the security agreement between the parties, creating a security interest in all present and future supplies.
12.2 This security interest in the Building extends to any proceeds of any sale or any insurance claim in respect of the Building and monies held in a separate account arising from the sale of the Building for the purposes of the PPSA and to the extent applicable, the PPSA applies.
For the purposes of the PPSA, the collateral is described as the Building and related goods and the collateral may be further described in the Purchase Transaction.
12.4 You acknowledge and warrant that any Building purchased from Spacee are not purchased predominantly for personal, domestic or household purposes.
12.5 You acknowledge that Spacee may do anything reasonably necessary, including (without limitation) registering any security interest (including a PMSI) which it may have over the Building on the PPSA in order to perfect the security interest and comply with the requirements of the PPSA.
12.6 You agree, without charge, to provide all information and do all things reasonably necessary to assist Spacee undertake the matters set out above.
12.7 You are not entitled to use the Building as security, encumber or create any form of security interest over the Building.
12.8 You waive any right pursuant to s.157(3)(b) of the PPSA to receive notification of a verification statement in relation to any registration event.
14.8 You and Spacee agree that pursuant to s.115 of the PPSA, the following provisions of the PPSA do not apply in relation to the security interest, to the extent, if any, mentioned (and words in this provision have the same meaning in the PPSA):-
(a) Section 95 (notice of removal of accession);
(b) Section 125 (obligation to dispose of or retain collateral) in that Spacee may extend the time for delay as it considers appropriate;
(c) Section 129 )(disposal by purchase);
(d) Section 130 (notice of disposal), to the extent that it requires the secured party to give a notice to the grantor before disposal;
(e) Paragraph 132(3)(d) (contents of a statement of account after disposal);
(f) Subsection 132(4) (statement of account if no disposal);
(g) Section 135 (notice of retention);
(h) Section 142 (redemption of collateral); and
(i) Section 143 (reinstatement of security agreement).
14.9 You agree not to disclose information of a kind that can be requested under s.275(1) of the PPSA and must do everything on its part to ensure that s.275(6)(a) continues to apply.
15. Claims, Liabilities, Consequential Loss and damages
15.1 Spacee is not liable to You for any Claims, Liabilities, Consequential Loss, or damages of any nature whatsoever, whether liquidated or unliquidated and howsoever arising.
16. Indemnity and Release
16.1 You are liable for and indemnify and agree to hold harmless Spacee in relation to any Claim or Liability arising directly or indirectly from or in connection with:-
(a) Any breach of this Contract, willful misconduct, provision of false or misleading information, fraud or breach of any statute, law or regulation;
(b) Any negligent act or omission of You or its directors, employees, agents, representatives or contractors;
(c) Your use or occupation of the Building or any activities undertaken on the Site, including (without limitation) the delivery, installation, storage or operation of the Building or Accessories or any other services or systems on the Site;
(d) The contemplated, attempted or actual enforcement, preservation or exercise of any right under this Contract or any enforcement by Spacee of any rights under this Contract;
(e) Personal injury, including death and disease, loss of or damage to property arising directly or indirectly out of or in connection with the performance of this Contract whether or not same is caused or contributed to by the negligence or default of any other party;
(f) All environmental factors, conditions and liabilities relating to the Site; and
(g) The performance of this Contract.
16.2 Each indemnity in this Contract is independent of the parties other obligations, continues beyond the ending of this Contract and may be enforced before incurring expense or making payment.
17. Liability of Spacee
17.1 If this Contract is in respect of the supply of a New Building, Spacee provides a warranty against defective Materials and Workmanship, for a period of twelve (1) months from the date of delivery or the date of Handover (whichever is the later) strictly conditional upon You complying with this Contract in its entirety. Notification of any claim must be made in writing within 14 days of the defect becoming known to You.
17.2 If this Contract is in respect of the supply of a Building that is not new (ie second hand, existing, renovated or refurbished Building), then same is sold on an as is where is basis, with all faults and defects, whether apparent or not and no warranties whatsoever (express or implied) shall be provided by Spacee in connection with same.
17.3 Appliances, equipment and accessories purchased by Spacee that are incorporated into the Building (whether a new Building under clause 17.1 or a second hand building under clause 17.2) or any equipment manufactured by Spacee in connection with the Building or this Contract or that are delivered separately will only be subject to any warranty (or balance thereof) provided by the original manufacturer, to the extent that there is one and same is assignable. Spacee does not offer any extension on the manufacturer's warranty whatsoever for Accessories.
17.4 If the Building or any Accessories are to be repaired for any reason whatsoever then You will be liable to bear all of the cost of the return and delivery if onsite repair is impractical, as determined by Spacee, in its discretion.
17.5 Any repairs, modifications, movement, relocation, positional change, improvements or additional works of any nature that are carried out by You or any other person without the express written consent of Spacee will void any warranties provided under this Contract and will otherwise be at Your sole risk and expense. Spacee will not accept any responsibility for any unauthorised works, including any actions, Claims and Liabilities in respect of death, damage or injury to any person or property resulting directly or indirectly therefrom.
17.6 This warranty shall not apply where the damage complained of was caused by an Act of God or any act, or omission, negligence or contributory negligence of You, its servants or agents or another.
17.7 You acknowledges that it has:-
(a) Had the opportunity to inspect the Building prior to Practical Completion; and
(b) Having inspected or declined to inspect (as the case may be), accepts the Building on an as is, where is basis, in its current state, with all faults and defects, whether apparent or not.
17.8 Save for those set out above, Spacee makes no express or implied warranties in relation to:-
(a) The fitness of the Building for any particular purpose;
(b) The merchantability of the Building;
(c) The description, state, quality or condition of the Building;
(d) Any consents, licenses or approvals with respect to the Building; or
(e) The lawfulness of any use(s) for which You may intend to use or operate the Building on Site.
17.9 Spacee will not be liable to You, or any third party, for any death, injury, loss or damage (including but not limited to Consequential Loss) in connection with the Building or this Contract, or any activities or works undertaken by it its employees, contractors, agents or representatives whilst on Site.
17.10 To the full extent permitted by law, Spacee excludes and is not liable for any condition or warranty (of any kind) that is not expressly set out in this Contract.
17.11 This exclusion does not affect conditions or warranties that cannot be excluded under law, including under the Australian Consumer Law and only where any such conditions or warranties cannot be excluded:-
(a) You are entitled to a replacement or a refund for a major failure and to compensation for any other reasonably forseeable loss or damage;
(b) You are also entitled to have the Building repaired or replaced if such failure is due to not being of acceptable quality, but is not a major failure; and
(c) Any Building presented for repair may be replaced by refurbished buildings, structures, goods or accessories of the same type, rather than being repaired and refurbished parts may also be used to repair the Building.
17.12 Spacee will not be liable for any losses or damages suffered by You as either a direct or indirect consequence of any statutory or regulatory non-compliance whatsoever resulting from any act or omission on the part of You.
17.13 It is expressly agreed that You will not Object or pursue any Claim against Spacee and will not hold Spacee liable for any Liabilities, losses or damages suffered by You as either a direct or indirect consequence of any change to any statutory requirement or regulatory compliance issue whatsoever that occurs after the commencement of the Contract.
17.14 In the event that an insurance claim results in the insurer paying a sum of money, You will only require Spacee to make good loss or damage upto a
maximum amount obtained from the insurer and Spacee shall not be liable to You whatsoever for any other Liabilities or Consequential Loss.
18. Default by Client
18.1 In the event that You:-
(a) Fail to pay any amount due under this Contract, whether notice is given by Spacee or not; or
(b) Fail to comply with any obligation under this Contract;
(c) Is affected by an Insolvency Event;
Then an Event of Default will be deemed to have occurred under this Contract.
18.2 Upon the occurrence of an Event of Default and without limiting any other rights at law, in equity or elsewhere, Spacee may (but are not obliged to):-
(a) Suspend performance of or terminate this Contract, by notice in writing to You;
(b) Declare the balance of the Price immediately due and payable by You;
(c) Make a demand for Security in accordance with clause 19;
(d) Retake possession of the Building and remove same from the Site, at Your expense; or
(e) Remedy any default committed by You under this Contract, at Your expense.
18.3 In the event that Spacee terminates this Contract due to breach, You will be no longer entitled to possession of the Building and You:-
(a) Irrevocably grant to Spacee the licence and authority to enter upon the Site where the Building is located and use such reasonable force as may be necessary for the purpose of removal of any Building sold to You, together with any property in, on or attached to the Building (regardless of whom such property may belong to) at Your sole cost and expense; and
(b) Must immediately return the Building to Spacee (at Your cost and expense) and nothing in this Contract gives You any express or implied right or entitlement to sell, hire, lease, encumber, or grant any right or interest whatsoever in the Building, nor any right to set off, deduct, withhold or counterclaim against any amounts that may be due and owing to Spacee.
18.4 If Spacee repossesses the Goods from any Site and retains, sells or otherwise disposes of the Building or any items within the Building, then You hereby releases and indemnifies Spacee for all claims, costs, Liabilities, Consequential Loss and any other matters arising there from, including in respect of any legal costs, on a full indemnity and solicitor client basis.
18.5 Spacee will have all rights and remedies set out in this Contract in addition to those otherwise available at law. All such rights and remedies are cumulative. You must pay all costs and expenses paid or incurred by Spacee in enforcing its rights under or in connection with this Contract, the supply and installation (if applicable) of the Building including, without limitation, legal fees and court costs on a full indemnity and solicitor client basis.
18.6 Spacee may also set off any amounts owing by Spacee to You as against any amounts owing by You to Spacee and make a demand upon You for security and any legal or other costs incurred by Spacee shall be recoverable by Spacee as against You on a full indemnity and solicitor client basis.
19.1 As further security for the performance of Your obligations under this Contract, including (without limitation) those in respect of payment, You and the Guarantors (both jointly and severally):-
(a) Mortgage and charge in favour of Spacee all of its interest in any freehold land in Australia, both present and future and agrees that Spacee shall have in respect of such land those powers given to a mortgagee by the Property Law Act 1974 (Qld), or equivalent State legislation, where the mortgage is by deed; and
(b) Grant a security interest as defined in the Personal Property Securities Act 2009 (Cth) and charges in favour of Spacee all other assets and personal property, including, without limitation, all fixtures, stock, goods, motor vehicles and plant and equipment of You and the Guarantors (jointly and severally), both present and future.
19.2 When required by Spacee, You and/or the Guarantors will, immediately and at their own cost, execute a mortgage, charge, caveat or consent to caveat in registerable and proper form of such freehold property, leasehold property, fixtures, stock, goods, motor vehicles and plant and equipment and any other chattels, containing such covenants and provisions as Spacee considers necessary to give effect to the mortgages and charges created and will do all things reasonably required by Spacee to perfect or register any such interests.
19.3 You and the Guarantors (jointly and severally) irrevocably appoint as its duly constituted attorney Spacee and its director(s) from time to time (jointly and severally) to execute in the granting party’s name and as the granting party’s act and deed any real property mortgage, security interest (including registration thereof) bill of sale or consent to any caveat Spacee may choose to lodge against any property (real or personal) that the granting party may own in any Land Titles Office , PPSR or other regulatory or other supervisory or governmental authority in any state or territory of Australia, even though that party may not have defaulted in carrying out its obligations hereunder.
20. Buyback Option
20.1 If You decide to resell part or all of the Building under the Contract, then You shall first offer the Building for sale to Spacee at a price and on terms stipulated by You.
20.2 If Spacee elects to purchase the Building from You then in such case You shall warrant that it has title in the Building, free of all encumbrances, charges or other security interest or claims and that there are no impediments for the completion of such sale whatsoever.
20.3 If Spacee elects not to purchase the Building, then You may sell the Building to any third party provided that the terms and price of such sale are not more favorable to the third party than those offered to Spacee unless Spacee consents in writing to the contrary.
21. Confidential Information, Specifications and Drawings
21.1 This Contract and all negotiations leading to its execution, together with all documents whatsoever disclosed by Spacee to You are to be treated as confidential by You (“Confidential Information”) and will not be disclosed by You to any third party without Spacee’s written consent, unless same is already in the public domain.
21.2 Each party acknowledges that:-
(a) The other party may suffer financial and other loss and damage if any unauthorised act occurs in relation to Confidential Information of the other party, and that monetary damages would be an insufficient remedy; and
(b) In addition to any other remedy available at law or in equity, the other party is entitled to injunctive relief to prevent a breach of and to compel specific performance of this clause 21.
21.2 Spacee retains all copyright and intellectual property rights whatsoever in all materials it uses or provides to You relating to the performance of the Contract.
21.3 If You provide Spacee with any drawings, plans, specifications or other material or documents (“the Documents”) then You warrant that it is entitled to use those Documents and indemnifies and holds harmless Spacee from any Claims or Liabilities that may be brought against Spacee in relation thereto, including any legal costs in connection with such matters on a full indemnity and solicitor client basis.
21.4 Spacee will not be liable to You or any other person in respect of any faults, flaws or defects in the Documents provided to it by You in connection with this Contract, or in respect of any materials or manufacturing methods recommended in any such Documents, or any lack thereof. In absence of any specific instructions in the Documents from You, Spacee will utilize any materials or manufacturing methods it considers appropriate in order to achieve Practical Completion and will not be liable to You for any Claims or Liabilities in connection with same.
24.1 If the dispute is not resolved by negotiation within 28 days of receipt of an invitation to negotiate, the parties will attempt to resolve in good faith through an Alternative Disputes Resolution procedure (ADR). If this is unsuccessful then either party can refer the matter to arbitration.
25. Assignment and Subcontracting
25.1 Spacee may assign or subcontract any part of its obligations under this Contract without having to firstly obtain the consent of You.
25.2 This Contract is personal to You and may not be assigned by You without the express written consent of Spacee.
28. Payments and Set Off
28.1 Spacee may apply any payments received from You to any part of any amount owing to Spacee at sees fit.
28.2 If an amount is payable by Spacee to You, Spacee is entitled to set-off against that amount any amount payable by You to Spacee, whether that amount is payable under this Contract or otherwise.
29.1 Any notice or communication under this deed may be sent by electronic mail, facsimile, post or delivered to the address of the addressee in the Purchase Transaction or elsewhere in this Contract or as may be subsequently notified from time to time, or to the registered office of the addressee.
(a) Posted, the notice or communication is deemed received on the second Business Day after posting; and
(b) Sent by email or facsimile, is deemed to have been received upon the generation of a transmission or delivery receipt from the sender’s computer, email server or software program or facsimile machine.
30.1 Unless otherwise stated, all prices or amounts set out in the Purchase Transaction or elsewhere in this Contract are exclusive of GST and any other taxes or duties.
30.2 Where GST is imposed on a supply made under this Contract, You must pay or provide the GST exclusive amount of consideration for the supply and in addition to and at the same time, You must pay an additional amount which is equal to the amount of Spacee’ GST liability for that supply.
31.1 You warrant that:-
(a) You have the right and authority to enter into this Contract and perform your obligations hereunder;
(b) entry into this Contract will not cause it to be in breach of any arrangement, agreement or understanding to which it is or has been a party;
(c) You have had sufficient time and opportunity to consider the Contract and, obtain legal, financial and other professional advice in relation to same and otherwise satisfy itself as to the suitability of this arrangement for itself.
31.2 This Contract does not create or evidence a partnership, joint venture, agency or relationship of employer and employee between the parties.
31.3 A party’s failure or delay to exercise a power or right does not operate as a waiver of that power or right. The exercise of a power or right does not preclude either its exercise in the future or the exercise of any other power or right. A waiver is not effective unless it is in writing.
31.4 This Contract is the entire agreement and understanding between the parties on everything connected with the subject matter of this Contract and supersedes any prior agreement or understanding on anything connected with that subject matter. To the extent permitted by law,
31.5 Each party must promptly at its own cost do all things (including executing and if necessary delivering all documents) necessary or desirable to give full effect to this Contract.
31.6 If You instruct Spacee in writing or Spacee considers any instruction from You, whether verbal or written to be an instruction to perform a variation, then Spacee will perform the variation but only after You have agreed to the price or cost of such variation, in writing. The agreed price of the variation will be added to or deducted from the Price and any extension estimates to any timeframes shall be given accordingly.
31.7 If anything in this Contract is unenforceable, illegal or void then it is severed and the rest of this Contract remains in force.
31.8 This Contract is enforceable even if there are details missing from the Purchase Transaction or elsewhere.
31.9 The liability of a party is not affected by the failure by any person to execute this Contract.
31.10 This Contract may be executed in counterparts. All executed counterparts constitute one document.
31.11 The law of the state of Queensland governs this deed. The parties submit to the non-exclusive jurisdiction of the courts of that State and of the Commonwealth of Australia.
31.12 You are liable to pay all duty, interest and penalties in connection with this Contract and hereby releases and indemnifies Spacee in connection with same or any payments or receipts hereunder.
32. Guarantee and Indemnity
32.1 In consideration of Spacee entering this Contract at the request of the Guarantor (which request is confirmed by the execution by the Guarantor), the Guarantor guarantees to Spacee payment of all moneys and performance of all other obligations by You under this Contract, including payment of any damages that may result from a breach thereof.
32.2 If Spacee incurs any loss as a result of a default by You under this Contract, the Guarantor indemnifies Spacee, on a full indemnity basis (including in respect of legal costs on an indemnity basis), against such loss.
32.3 The Guarantor’s liability under this clause 32 will not be affected:-
(a) If Spacee allows any concession, indulgence of waiver in respect of You;
(b) If Spacee does not sue You or does not exercise any other right hereunder;
(c) If this Contract is varied or assigned, including without the Guarantor’s consent;
(d) If Spacee terminates or exercises any other right hereunder;
(e) If You dies or becomes incompetent or suffers an Insolvency Event, or if this Contract is not enforceable against You because of any lack of capacity, illegality, improper execution or authorization or a disclaimer by any liquidator or trustee in bankruptcy of You;
(f) If there is more than one Guarantor, if any other of them has not signed this Contract or suffers an Insolvency Event;
(g) By the release or discharge (wholly or partly) of You or any other Guarantor from any obligations on the part of You or any Guarantor under this Contract (either with or without consideration or by operation of law) or by any other security, agreement or arrangement in respect of this Contract;
(h) By any transaction, arrangement or agreement in respect of this Contract or otherwise between Spacee and You or Spacee and any other Guarantor;
(i) By any other event, act, omission, neglect, mistake, laches or default by Spacee or any person where the Guarantor’s liability to Spacee would, but for this provision, have been affected or discharged;
32.4 The liability of the Guarantor will continue until You have paid all moneys and performed all of Your other obligations under this Contract;
32.5 If Spacee assigns its interest in this Contract, Spacee may also assign the benefit of the Guarantor’s obligations hereunder;
32.6 The obligations of the Guarantor hereunder are principal obligations and will not be treated as ancillary to any other obligations however created, including the obligations of You;
32.7 If You suffer an Insolvency Event and that results in claims by creditors, the Guarantor agrees:-
(a) It will not prove or claim in competition with Spacee (even for amounts owing to the Guarantor other than as a result of the Guarantor being a surety for Spacee), so as to diminish any distribution, dividend or payment which, buy for that proof, Spacee would be entitled to receive arising out of that bankruptcy, assignment for the benefit of creditors, arrangements with credits, winding up, receivership or other demise; or
(b) It will, if required by Spacee prove or claim in that bankruptcy, assignment, arrangement winding up, receivership or other demise of You;
Any amount received by the Guarantor from any distribution, dividend or payment will be received and held by the Guarantor in trust for Spacee and paid on demand to Spacee in reduction of the amount owing by the Guarantor to Spacee;
32.8 Spacee may prove for the whole amount owing by You under this Contract in any payment to creditors arising out of Spacee or a Guarantor suffering an Insolvency Event. No deduction need be made in such proof in respect of Spacee’ receipt of amounts in reduction of the amount owing by reason of receipts from another course, such amounts being regarded for all purposes as payments in gross until payment of the whole of the amount of moneys owing is received by Spacee;
32.9 If a claim is made that any payment or transaction affecting the moneys guaranteed and indemnified under this clause is void or voidable under any law relating to bankruptcy or the protection of debtors and that claim is upheld, conceded or compromised, Spacee will:
(a) Immediately become entitled against the Guarantor to all rights in respect of those moneys as it would have had if the payment or transaction (or so much of it as is held or conceded to be void or voidable or as is foregone on compromise) did not place; and
(b) Be entitled to recover from the Guarantor all reasonable costs and expenses (including legal costs on an indemnity basis) incurred by Spacee in connection with any negotiations or proceedings relating to that claim.
32.10 Any compromise or concession made by Spacee in good faith will not be open to dispute by the Guarantor.