This Agreement is between Hotspace Consultants Pty Ltd ATF The Hotspace Trust ABN 13 804 352 051 (“the Provider”) and you, the Client.
IT IS AGREED AS FOLLOWS:
This Digital Agreement (“this Agreement”) outlines the terms and conditions of the Provider. By proceeding, the Client will be deemed to have read, understood and accepted to be bound by the terms and conditions contained herein, and that this digital version is the sole requirement for this Agreement to be binding on the parties.
In this Agreement, unless expressed or implied to the contrary:
Approved Purpose means the purpose specified in this Agreement.
Client includes any person or organisation (or representative of any person or organisation) who is the registered recipient
Client Content means any content owned, held or provided by the Client, which is relevant to the Services.
Commencement Date means the date the Services are paid for.
Consultation Date means the date on which Jane and the Client meet on Zoom for the scheduled appointment.
Consultation Time means the one hour duration of the ‘Next Level Consultation’.
Facade Design Plan (FDP) is defined in clause 4.2 of this Agreement.
Digital Agreement means this Agreement. All other legal notices and any schedules, annexures, attachments relating to this Agreement that are provided with this Agreement, or separately, also form part of this Agreement, and will be deemed as accepted by the Client’s payment of the Deposit for the Services. This digital version is the sole requirement for this Agreement to be binding on the parties.
Materials means any material that exists at the beginning of the Services and which is provided in connection with the Services, in whatever form, including but not limited to documents, specifications, reports, products, information, data, drawings, graphics, images, software, and any material provided in connection with the Services that is created, written, or otherwise brought into existence by or on behalf of the Provider during the performance of the Services.
Property means the residential property of the Client as indicated in the FDP.
‘Next Level’ Consultation means the 60 minute scheduled appointment where the property frontage is discussed and specific questions and concerns (provided by the Client) are reviewed and resolved.
Services means the ‘Next Level’ Consultation services provided by the provider
Work or Works means any installation, building, construction or other specialist works that have flowed from the Client’s FDP.
3. TERM OF AGREEMENT
This Agreement will commence on the Commencement Date.
4.1 The Provider agrees to perform the Services in a professional manner using reasonable skill, care, and diligence.
4.2 ‘Next Level Consultation’
(a) The Services are pursuant to section 41 of the Queensland Building and Construction Commission Regulation 2018 (Qld).
(b) Advice given during the ‘Next Level Consultation’ is conceptual in nature and is intended to set forth design intent and is not to be used for engineering purposes. The advice given by the Provider is the Provider’s opinion and may include recommendations for, but not limited to, colours and materials selections for building exterior/façade walls/cladding, windows, doors, roof, patio/deck areas, entrance-ways, yard/gardens, garage, paths/driveway, fences, lighting and any other relevant fixtures and fittings.
(c) The ‘Next Level Consultation’ may also include;
(i) helpful websites;
(ii) sketch mock-ups, sketch plans or details to indicate and clarify suggestions (provided during the consultation, if needed)
(d) The ‘Next Level Consultation’ does not include;
(i) advice on structural, heating, air-conditioning, plumbing, electrical, ventilation or other mechanical systems that may be included in the renovation project;
(ii) structural advice on wall removals;
(iii) any latent, structural or other defect (including but not limited to pest and vermin infestation) that is not capable of being ascertained from a lay person’s visual inspection of the property;
(iv) furniture recommendations;
(v) CAD/Computer generated plans or details;
(vi) itemised costs or quotes for the renovation;
(vii) organising, supervising, managing or co-ordinating contractors for the performance of renovation work
(viii) any works performed by a third party whether or not that third party was introduced to the property by the Provider.
(e) All sketches or mock-ups require accurate check measures dimensions and size verifications by architects, draftspeople, licensed surveyors, cabinetmakers, builders and/or other qualified tradespeople.
(f) The Client agrees that where building or construction work is required for the Services, it must enter into a Building and Construction Contract that is independent of this Agreement, and the Provider is not liable for any damages or loss incurred to the Client or any building or construction contractors arising out of or associated with the Building and Construction Contract.
(g) Any assessment of planning controls, council approvals, DA applications or any planning instruments, residential building approvals, survey reports, council reports, or documentation required will be the sole responsibility of the Client.
(h) The ‘Next Level Consultation’ occurs on the Consultation Date and only during the Consultation Time.
4.3 Independent Contractor
The Provider acknowledges that it is an independent contractor to the Client and not an employee, partner, or agent of the Client. The Provider will not represent itself to any other person as an employee, partner, or agent of the Client, nor represent that it is able to bind the Client to any third party.
4.4 Third-Party Contractors and Suppliers
The Client acknowledges and agrees all representations, recommendations and referrals made by the Provider are made in good faith, but that the Provider makes no warranties as to the reliability of third-party suppliers and contractors or guarantees as to the outcome or results of the Services. The Provider will not assume responsibility for the acts and omissions of third-party suppliers and contractors, and the Client acknowledges it must satisfy itself as to the suitability of any third-party services and accepts any associated risks with doing so.
5. CLIENT OBLIGATIONS
5.1 The Client agrees:
(a) to comply with all applicable laws and regulations, including relevant permits, licences, and/or any and all approvals and compliance required for the renovation project;
(b) to provide an accurate and thorough brief, including details of the Client’s budget and any specified photographs, measurements, dimensions, or any other information required for performing the Services as requested by the Provider;
(c) to co-operate with the Provider and provide clear and reasonable Direction, instruction, and guidance, as necessary for the performance of the Services;
(d) that they are fully responsible for the lack of providing adequate images or information any errors, defects or faults (and rectification thereof) agrees the Provider shall be held harmless for relying on the accuracy of information provided by the Client during the ‘Next Level Consultation’;
(a) The Client will pay the Provider the Fees at the rate and in the manner agreed.
(b) Fees means the fees payable for the ‘Next Level Consultation’.
(c) The Client agrees to pay 100% of the fees in advance of the Consultation Date.
(d) The Client acknowledges that the ‘Next Level Consultation’ will not take place unless the entire payment is made.
(e) If additional services or additional time is required, another ‘Next Level Consultation’ may be purchased by the Client at the full advertised fee.
7. REFUNDS & POSTPONEMENTS
‘Next Level Consultations’ are non-refundable
‘Next Level Consultation’ appointments may be postponed 3 days or more prior to the date of the original appointment, where the new appointment date is within 21 days of that date. Postponements outside of these criteria will result in a cancellation of the Services with no entitlement to a refund.
8. CONFIDENTIAL INFORMATION AND PRIVACY
8.1 Obligations with Respect to Confidential Information
(a) may use Confidential Information of the Discloser only for the purposes of this Agreement;
(b) must keep confidential all Confidential Information of the Discloser except:
(i) to persons on a need-to-know basis who must sign a written confidentiality undertaking if requested by the Discloser;
(ii) for any other disclosure permitted under this clause 9; and
(iii) to the extent (if any) the Recipient is required by law to disclose such Confidential Information;
(c) notify the Discloser if that Recipient suspects or becomes aware of any unauthorised copying, use or disclosure of the Confidential Information in any form;
(d) destroy or return all Confidential Information immediately upon request.
9. INTELLECTUAL PROPERTY RIGHTS
9.1 Pre-Existing Intellectual Property
(a) Each party will retain ownership of their respective Pre-Existing Intellectual Property. Neither party acquires the right, title, or interest in or to the Pre-Existing Intellectual Property by virtue of this Agreement or the disclosure or use of the Pre-Existing Intellectual Property in the course of performing the Services, other than as expressly set out in this Agreement.
9.2 Ownership of Material
Subject to clause 9.1, the Provider:
(a) owns all Intellectual Property rights in and to the Materials. The Client shall not share or use the Materials for additions to the Project or any other project without explicit written permission of the Provider;
(b) grants the Client a royalty-free, revocable, worldwide, non-exclusive licence to use the ‘Next Level Consultation’ advice strictly for the Approved Purpose and Project, and without the right to:
(i) grant a sub-licence or assign the licence; or
(ii) re-sell, share or commercially exploit the Materials.
(c) The Client must attribute the correct representative of the Provider as the author of the Materials unless otherwise agreed in writing between the parties.
9.3 Media Consent and Releases
The Client hereby acknowledges and agrees:
(a) to authorise the Provider to publish, or to have published, images, sketches, drawings and plans used and created during the consultation process and photographs taken of the design work, reviews or testimonials, for use in print, online and digital, publications, platforms and mediums for the purpose of marketing and promotion, subject to consent and approval;
(b) to release and hold harmless the Provider from any reasonable expectation of privacy or confidentiality (including if address and names are withheld), from liability or for any claims in connection associated with the publication of these photographs, reviews, testimonials, marketing or promotional materials, and that publication of the above said confers no rights of ownership or royalties whatsoever, or entitlement to financial compensation of any type;
10. LIMITATION OF LIABILITY
10.1 Total Liability
To the fullest extent permitted by law (and to the extent permitted under Australian Consumer Law), the total liability of the Provider under or in connection with this Agreement in respect of all Claims (if any) is limited to the Fees paid or payable for the Services and in any event, will never exceed the available proceeds of the professional indemnity and/or public liability insurance coverage of the Provider (as varied from time to time) or the fees paid to the Provider by the Client, whichever is the lesser amount.
10.2 Consequential Loss
In no case shall the Provider, its officers, employees, affiliates, agents, contractors, or licensors be liable for any Consequential Loss arising from the Client’s failure to provide Client Content or approve the Materials within a reasonable time, failing the use of any of the Services or for any other Claim related in any way to the Client’s use of, or reliance on, the Services, the Materials, Website, platforms and/or content or designs or drawings including, but not limited to any errors or omissions in any content, or any loss or damage of any kind incurred as a result of the use of any content posted, transmitted, or otherwise made available via the Services, even if advised of their possibility.
10.3 Australian Consumer Law
Further, nothing in this Agreement is intended to limit any Australian Consumer Law guarantees or warranties that may apply to the Services and that cannot be excluded.
11. DISPUTE RESOLUTION
(a) If a dispute arises out of or relates to this Agreement, a party must not commence any court or other proceedings relating to the dispute unless it has first issued a written notice to the other party specifying the nature of the dispute.
(b) Upon receipt of the notice by the other party, the parties must endeavour to resolve the dispute within twenty-one (21) days using informal dispute resolution techniques including settlement discussions and mediation (using the applicable mediation rules of the Law Society of QLD in the event that the parties cannot agree on the applicable processes).
(c) If the dispute cannot be resolved, then the parties shall be free to pursue any right or remedy available to them under applicable law.
(d) Nothing in this Agreement will prejudice the right of a party to institute proceedings to enforce payment due under this Agreement or to seek urgent injunctive or declaratory relief in respect of a dispute or any matter arising under this Agreement.
If any provision or part of this Agreement is void or unenforceable for any reason, then that provision or part will be severed from this Agreement and the rest of this Agreement shall be read as far as possible as if the severed provision or part had never existed.
12.2 Entire agreement and variation
The parties agree that:
(a) this Agreement is the entire agreement between the Provider and the Client in respect of this arrangement and supersedes any other communication or understandings (whether written or oral) between the Provider and the Client in that regard; and
(b) any changes to this Agreement must be agreed in writing between the Provider and the Client prior to the changes coming into effect.
12.3 Governing law
This Agreement is governed by the laws applicable in the state of Queensland, and the parties agree to irrevocably submit to the exclusive jurisdiction of the courts of that Sate.
Clauses 1, 2, 8, 9, 10 and this clause 12.4 survive any expiration or cancellation of this Agreement and will have effect for the benefit of the parties