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:
1. ACCEPTANCE
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.
2. DEFINITIONS
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 90 minute duration of the ‘90 Min Facade Design Session’.
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 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.
‘90 Min Facade Design Session’ Consultation means the 90 minute scheduled appointment where the property exterior is discussed and specific questions and concerns (provided by the Client) are reviewed and resolved.
Services means the ‘90 Min Facade Design Session’ Consultation provided by the Provider
Work or Works means any installation, building, construction or other specialist works that have flowed from the client’s ‘90 Min Facade Design Session’.
3. TERM OF AGREEMENT
This Agreement will commence on the Commencement Date.
4. SERVICES
4.1 The Provider agrees to perform the Services in a professional manner using reasonable skill, care, and diligence.
4.2 90 Min Facade Design Session
(a) The Services comprise advisory and conceptual design guidance only. They do not include preparing plans or specifications for the performance of building work, contract administration, or any other activity that requires a QBCC licence. If the Client wishes to proceed with regulated work, this must be undertaken under a separate engagement by appropriately licensed professionals.
(b) Advice given during the ‘90 Min Facade Design Session’ 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, entranceways, yard/gardens, garage, paths/driveway, fences, lighting and any other relevant fixtures and fittings.
(c) The ‘90 Min Facade Design Session’ may also include:
(i) references to helpful websites;
(ii) sketch mock-ups, sketch plans or details to indicate and clarify suggestions (provided during the consultation, if needed).
(d) The ‘90 Min Facade Design Session’ does not include:
(i) advice on structural, heating, air-conditioning, plumbing, electrical, ventilation or other mechanical systems;
(ii) structural advice on wall removals;
(iii) assessment of latent, structural or other defects (including but not limited to pest or vermin infestation) not capable of being ascertained from a lay person’s visual inspection of the property;
(iv) furniture recommendations;
(v) CAD/computer-generated plans, illustrations or details;
(vi) itemised costs or quotes for the renovation;
(vii) organising, supervising, managing or coordinating contractors;
(viii) any works performed by a third party, whether or not that third party was introduced to the Client 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 separate building and construction contract independent of this Agreement. The Provider is not liable for any damages or loss incurred to the Client or any contractors arising out of or associated with such building or construction work.
(g) Any assessment of planning controls, council approvals, development applications, residential building approvals, survey reports, or related documentation remains the sole responsibility of the Client.
(h) The ‘90 Min Facade Design Session’ 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 providing adequate images and information. The Client acknowledges that the Provider relies on this information, and the Client agrees to hold the Provider harmless for any errors, defects, or faults (and rectification thereof) arising from inaccurate or incomplete information provided.
6. PAYMENTS
6.1 Fees
(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 ‘90 Min Facade Design Session’.
(c) The Client agrees to pay 100% of the fees in advance of the Consultation Date.
(d) The Client acknowledges that the ‘90 Min Facade Design Session’ will not take place unless the entire payment is made.
(e) If additional services or additional time is required beyond the 90-minute session, the Provider will invoice the Client for such additional work at a rate of $460 plus GST per hour, calculated on a pro rata basis in 15-minute increments, which shall be payable within 3 days of the date of invoice.
7. REFUNDS & POSTPONEMENTS
7.1 Refunds
‘90 Min Facade Design Session’ consultations are non-refundable. Failure to attend the Consultation at the agreed time will be deemed a cancellation with no entitlement to a refund.
7.2 Postponements
‘90 Min Facade Design Session’ 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. Only one postponement is permitted.
8. CONFIDENTIAL INFORMATION AND PRIVACY
8.1 Obligations with Respect to Confidential Information
A Recipient:
(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 8; 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.
8.2 Privacy
The Provider agrees to comply with the Provider’s Privacy Policy, the Privacy Act 1988 (Cth) and all other applicable privacy laws and such other data protection laws as may be in force from time to time which regulate the collection, storage, use, and disclosure of information about identifiable individuals (“Personal Information”) held by or on behalf of the Client to the extent that they are legally obligated to comply with these laws.
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 ‘90 Min Facade Design Session’ 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
(a) The Client acknowledges that, with their prior written or verbal consent, the Provider may publish or cause to be published images, sketches, drawings, plans, and/or photographs used or created during the consultation process, as well as reviews or testimonials provided by the Client, for use in print, online, digital, or other media platforms for the purpose of marketing and promotion.
(b) The Client agrees that once such consent is given, they release and hold harmless the Provider from any expectation of privacy or confidentiality (with identifying details such as address withheld where appropriate), and from any liability or claims arising in connection with the authorised publication.
(c) The Client further agrees that such authorised publication does not confer any rights of ownership, royalties, or entitlement to financial compensation of any kind.
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.
12. GENERAL
12.1 Severability
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 State.
12.4 Survivorship
The provisions of clauses 1 (Acceptance), 2 (Definitions), 5 (Client Obligations), 6 (Payments), 7 (Refunds & Postponements), 8 (Confidential Information and Privacy), 9 (Intellectual Property Rights), 10 (Limitation of Liability), 11 (Dispute Resolution), and this clause 12 (General) will survive the expiry or termination of this Agreement and continue in full force and effect for the benefit of the parties.
12.5 Force Majeure
Neither party will be liable for any failure or delay in performing its obligations under this Agreement (other than payment obligations) if such failure or delay is caused by circumstances beyond that party’s reasonable control, including but not limited to acts of God, natural disasters, government restrictions, strikes, power outages, internet or telecommunication failures, illness, or pandemics. In such cases, the affected party must notify the other as soon as reasonably practicable, and the time for performance will be extended for the duration of the event. If the event continues for more than 30 days, either party may terminate this Agreement by written notice, without liability other than for amounts due up to termination.
12.6 Electronic Communication
The parties agree that notices, invoices, documents, and other communications in connection with this Agreement may be delivered electronically, including by email or via videoconferencing platforms such as Zoom. Electronic communications will be deemed received on the day of transmission, provided that no system error or bounce-back notification is received.
12.7 Dispute Resolution Costs
Each party will bear its own costs of any dispute resolution process under this Agreement, including mediation, unless the parties otherwise agree in writing.
