TERMS & CONDITIONS
THE CLIENT AND THE DESIGNER AGREE AS FOLLOWS:-
1. The Client has selected the Package as outlined in Schedule A and agrees with the Designer for the Designer to conduct the following work:-
a) Consult with the Client;
b) Source, install and place furniture and goods in the Property;
c) Arrange collection, deliveries and payments for furniture and goods;
d) Consult with suppliers of furniture and goods;
e) If requested (and subject to clause 18 below), organise tradesmen to undertake work as agreed with the Client;
f) Other work incidental to the provision of home staging services for the Client, in accordance with the package chosen by the Client.
2. The Work is being supplied by the Designer for the Property.
3. The Client requires the Work to be completed by the Completion Date.
4. The Client authorises the Designer, her employees, contractors, agents and servants to:-
a) Enter the Property at all reasonable times for the purpose of undertaking the Work;
b) Install and place furniture and goods on the Property;
c) Move or remove existing furniture and goods on the Property;
d) Arrange for, or make, repairs to the Property or any thing on the Property;
e) To do all other things reasonably necessary to undertake the Work.
5) The Estimate shall be the total of the following:-
a) The cost of the furniture and goods in accordance with the Quotation accepted by the Client; and
b) The cost of the Work undertaken by the Designer in accordance with Clause 1 herein and in accordance with the Quotation accepted by the client.
6) Whilst the Designer will use her best endeavours to ensure the Estimate and Completion Date remain the same, they are only indicative and are subject to change based on (but not limited to) the following reasons:-
a) variations requested by the Client;
b) unanticipated additions;
c) final product selection;
d) the complexity of the work;
e) contract services undertaken;
f) time constraints imposed by the Client; and
g) other unforeseen circumstances which are beyond the control of the Designer.
7. If during the course of undertaking the Work the Designer considers that the Estimate may be exceeded by greater than five percent (5%) as a result of the matters including but not limited to those set out in clause 6 herein, The Designer shall notify the Client of same, and shall issue the Client with a revised estimate (“the Revised Estimate”). The Client will be deemed to accept such Revised Estimate if no objection is received from the client in writing within three (3) days of receipt of the Revised Estimate, and such Revised Estimate will form the new estimate payable by the Client (“New Estimate”).
8. If the Client objects to the Revised Estimate, the Client and Designer shall use their best endeavours to resolve the matter to the satisfaction of both parties, which may include deleting furniture and goods from the list set out in the Quotation, or reducing the hours of Work, to settle the dispute.
9. The Deposit is payable by the Client on signing of this Agreement, and shall be applied by the Designer towards the costs of the Work and the disbursements in accordance with the Estimate.
10. If the Client fails to pay the deposit on signing of this Agreement, the Client shall be deemed to be in default of this Agreement and the Designer may at its option do any or all of the following:-
a) Terminate the Agreement;
b) Claim the full amount of the deposit (paid or payable) from the Client as a liquidated debt in addition to any Work undertaken by the Designer.
11. The Designer shall issue the Client with a final tax invoice upon completion of the Work. If the amount of the tax invoice exceeds the Deposit paid by the Client, the balance shall be payable by the Client within seven (7) days of issue (“the payment”).
12. Where the Estimate exceeds the Deposit required from the Client, the Designer may in her absolute discretion, choose to invoice the Client for the Work on an instalment basis, in which case such tax invoices shall be payable within seven (7) days of issue.
13. All disbursements incurred by the Designer will be charged to the Client at cost price. Disbursements may include, but are not limited to, the following:-
a) Rental or purchase of furniture and soft furnishing items;
b) Rental or purchase of artworks;
c) Contract services;
d) Travel expenses;
e) Courier and transport costs.
14. Disbursements shall be invoiced by the Designer or the Designer’s supplier(s) in advance and must be paid by the Client within the time stipulated by the Designer to ensure the Designer can meet her obligations pursuant to the Agreement.
15. If the Client fails to make payment in accordance with the terms of any tax invoice from the Designer or supplier(s) to the Designer, the Designer may at her option in addition to any other rights she may have under this Agreement or at law:-
a) Cease any further work and/or withhold delivery of furniture and goods and/or any other matter required to be undertaken by the Designer under this Agreement, until such time as payment has been received;
b) Charge the Client interest on the outstanding amount of any invoices issued by the Designer at the rate of 9% commencing one (1) day after the due date, until such time as the payment has been received.
16. The Designer shall render the Work to the Client as a contractor of the Client and in no way does this Agreement create a relationship between the Designer and the Client as employee, servant or agent, or any other relationship of a fiduciary nature.
17. The Client shall not at any time make any untrue statement of the Designer or wrongfully represent that the Designer is an employee, servant or agent of the Client.
18. Wherever possible, the Client shall directly enter into contracts with suppliers and tradesmen.
19. The Client acknowledges that the advice given by the Designer is of a cosmetic or aesthetic nature and does not extend to the provision of structural advice. The Client shall seek its own professional advice in respect of any structural alterations or repairs which are to be undertaken.
20. The Designer shall not be liable for any loss, damage, cost or expense incurred or suffered by the Client which is caused or contributed to by any contractors, whether engaged by the Designer or the Client, to undertake any part of the Work or any repairs or alterations which may be suggested by the Designer.
Warranty and indemnity
21. The Designer makes no warranty that the Property will sell, or will sell any quicker or for a higher price than if the Designer had not undertaken the Work.
22. The Designer shall not be liable for any damage caused to the Property as a result of moving, installing or placing any furniture or goods in the Property, or otherwise caused in undertaking the Work unless it is caused by the negligence or wilful act of the Designer, her employees, or servants.
23. The Client indemnifies the Designer against all loss, damage, claims, cost or expense which may be incurred or suffered by the Designer in connection with the Work or as a result of the failure by the Client to pay monies as and when due to the Designer, suppliers or contractors, including legal costs on an indemnity basis.
24. The Client indemnifies the Designer against all loss, damage, claims, cost or expense which may be incurred or suffered by the Designer as a result of any damage, theft, loss, destruction or wear and tear caused to the furniture and goods, unless it is caused by the negligence or willful act of the Designer, her employees or servants.
25. Where the Client is a company, the directors agree, in consideration of the Designer entering into this Agreement with the Client, to personally guarantee the obligations of the Client under this Agreement, and charge all of their real and personal property with repayment of all amounts payable to the Designer under this Agreement.
26. The Client shall ensure that an adequate insurance policy covering the Work, furniture and goods shall be held and maintained for the duration of this Agreement and the duration of the period that the furniture and goods are placed in the Property, and shall, if requested by the Designer, present a copy of such insurance policy, to the Designer.
27. The Designer reserves the right to take photographs of the Property and of the Work. The rights to the photographs shall solely be held by the Designer, and the Designer reserves the right to use the photographs for any purpose she sees fit, including but not limited to promotional purposes.
Frustration of contract
28. In the event that the Designer is rendered unable, wholly or in part, to comply with her obligations under this Agreement by reason of act of God, accident, civil disorder, terrorist act, strike or lockout of workmen, bad weather or by any other event or circumstance not within the control of the Designer, the Designer’s obligations under this Agreement shall be suspended for such time as appears reasonable to the Designer.
Governing Law, Jurisdiction and Service Process
29. This Deed is governed by the law in force in Queensland.
30. Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of Queensland and Courts of Appeal from them for determining any dispute concerning this Agreement. Each party waives any right it has to object to an action being brought in this Court including, but not limited to claiming that the action that has been brought in an inconvenient forum or that those courts do not have jurisdiction.
31. Without preventing any other mode of service, any document and action (including but not limited to any writ or other originating process or any third or other party notice) may be served on any party to this Agreement by being delivered to or left for the party at the appropriate address specified at the commencement of this Agreement.
32. If any provision (or part thereof) of this Agreement shall be declared by a Court (or other body) of competent jurisdiction invalid and not enforceable in accordance with its terms, all other provisions which are self sustaining and capable of separate enforcement without regard to the invalid provision shall be and continue to be valid and enforceable in accordance with their terms
33. In addition to paying the Estimate and any other amount payable or in connection with this Agreement (which is exclusive of GST), the Client will:-
a) pay to the Designer an amount equal to any GST payable from any supply by the Designer in respect of which the Estimate or any other amount is payable under this Agreement; and
b) make such payment either on the date when the Estimate or other amounts to which it relates is due or within fourteen days after the Client is issued with a tax invoice, which ever is the later.
34. The Designer must, within 28 days of request from the Client, issue a tax invoice (or an adjustment note) to the Client for any supply under or in connection with this Agreement.
35. The Designer will promptly create an adjustment note for (and apply to the Commissioner of Taxation for) a refund, and refund to the Client, any overpayment by the Client for GST but the Designer need not refund to the Client any amount for GST paid to the Commissioner of Taxation unless the Designer has received a refund or credit for that amount.
36. Words defined in the GST Law have the same meaning in this Clause unless the context makes it clear that a different meaning is intended.
37. In this Agreement, unless the context otherwise requires:
a) A reference to the singular shall include a reference to the plural and vice versa; and
b) Words importing persons shall include corporations and vice versa.
38. This Agreement constitutes the entire agreement between the parties and there are no other understandings, agreements, warranties, guarantees or representations in any way extending, defining or otherwise relating to the subject matter of this Agreement which are not set out in this Agreement.
39. Except as specifically stated in this Agreement, no variation, modification, waiver of any provision in this Agreement, or consent to any departure by any party from any such provision, shall be of any effect unless the same shall be in writing and signed by the parties or in the case of a waiver by the party giving it.
40. This agreement may be executed in any number of counter parts and all such counter parts taken together shall be deemed to be constitute one and the same instrument. This agreement may be entered into and becomes binding on the parties upon one party signing the Deed that has been signed by the other party (or a photocopy or facsimile copy of that Deed) and transmitting a facsimile copy of the agreement to the other party.