Terms of Agreement
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This Agreement is between Hotspace Consultants Pty Ltd ATF The Hotspace Trust ABN 13 804 352 051 (“the Provider”) and 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. The Client acknowledges and agrees that if they do not accept these terms and conditions, they must not proceed with the Services; and must advise the Provider in writing within 48 hours of receipt of these Terms of Agreement.
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 deposit for the Services are paid.
Completion Date means the date on which the Facade Design Plan is delivered to the Client and paid in full.
Facade Design Plan (FDP) is defined in clause 4.2 of this Agreement.
Digital Agreement means this Agreement. All other legal notices (accessible at https://hotspaceconsultants.com 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.
Design Briefing Consultation means the scheduled appointment where the property and proposed FDP is discussed and reviewed in detail and a questionnaire completed, booked upon payment of the deposit.
Services means the services that the Provider offers and as specified in the FDP or otherwise agreed in writing.
Work or Works means any installation, building, construction or other specialist works that have flowed from the FDP.
3. TERM OF AGREEMENT
This Agreement will commence on the Commencement Date and will end on the Completion Date, unless earlier terminated under clause 13. The parties may amend, renew, or extend the term of this Agreement as required and in writing.
4.1 The Provider agrees to perform the Services in a professional manner using reasonable skill, care, and diligence.
4.2 Facade Design Plan (FDP)
(a) The design services are pursuant to section 41 of the Queensland Building and Construction Commission Regulation 2018 (Qld).
(b) The FDP is conceptual in nature and is intended to set forth design intent and is not to be used for engineering purposes. The Facade Design Plan outlines the Provider’s recommendation for the cosmetic renovation of the exterior façade of the Client’s Property. The FDP provides recommendations for exteriors including but not limited to colours, materials and minor structural changes (as agreed) to building exterior/façade walls/cladding, windows, doors, roof, patio/deck areas, entrance-ways, yard/gardens, garage, paths/driveway, fences, lighting and all other relevant fixtures and fittings. The FDP also includes a full colour illustration.
(c) The FDP may also include;
(i) colour and finishes examples where necessary and possible;
(ii) helpful websites;
(iii) product styles (written and photographic descriptions are provided for indicative purposes) and (occasionally) actual product specifications;
(iv) sketch plans or details to indicate and clarify suggestions (if necessary);
(v) reasonable telephone and email support
(d) The FDP does not include;
(i) modifications to 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 unless otherwise agreed;
(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 technical drawings require accurate check measures dimensions and size verifications by architects, draftsman, 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 Client agrees, where the Client engages the Provider for additional services, additional fees will apply as agreed to in writing between the Provider and Client, and the Client shall be invoiced separately in addition to the Fees.
(i) Completed FDPs and colour illustrations are provided in the form of a PDF document, delivered via email, within the agreed timeframe.
(j) In the event of a delay, The Provider will notify the Client in writing within 3 days of it becoming evident to the Provider that anything beyond its control may result in delay as soon as the delay or circumstance causing delay is identified.
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.
4.5 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 deadlines, 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) to review and approve any Material in a timely manner;
(e) that they are fully responsible for the lack of providing adequate images or information any errors, defects or faults (and rectification thereof) after signing off on and approving the design and FDP and agrees the Provider shall be held harmless for relying on the accuracy of information provided by the Client in preparing the FDP;
(f) not to use the FDP for any purpose other than the Approved Purpose as set out in this Agreement.
(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 Facade Design Plan, which are calculated at the approximate hours at the Providers billable rate.
(c) The Client agrees to pay the 30% deposit on credit card or via invoice, due the day of booking the FDP. The Client also agrees to pay the 60% progress payment and final 10% payment either by invoice or credit card (as agreed), due before the Completion Date and prior to delivery of the FDP.
(d) The Client acknowledges FDP’s will not be delivered unless the balance payment is completed.
(e) If additional services or additional time is required to complete the Project, the Provider will notify the Client and provide them with an update of the Fees.
7. CANCELLATIONS, POSTPONEMENTS & REFUNDS
(a) Notification of cancellations must be emailed to firstname.lastname@example.org
(b) Cancellations made 14 days or more prior to the date of the Design Briefing Consultation appointment will be entitled to a 30% refund of the deposit.
(c) Deposits for cancellations made 13 days or less prior to the date of the Design Briefing Consultation appointment are non-refundable.
(d) The Client acknowledges and agrees the FDP cannot be cancelled (or postponed) after the Design Briefing Consultation has occured, and that the full balance of the fees for the FDP will be due and charged on the Completion Date of the FDP.
Design Briefing Consultation appointments may be postponed 14 days or more prior to the date of the original appointment, where the new appointment date is within 60 days of that date. Postponements outside of these criteria will result in a cancellation of the Services with no entitlement to a refund on the deposit.
(a) There will be no refunds for change of mind, cancellations or postponements in accordance with clauses 7.1 and 7.2 above.
(b) The Provider reserves the right to refuse or grant refunds for the Services, pursuant to the Competition and Consumer Act 2010 (Cth).
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 FDP 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 design 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;
(c) The Client agrees where another third-party contractor or supplier is permitted to take photographs or video records or use images of the finished Project, the Provider’s copyright will not be infringed in any way, and that they will be credited appropriately acknowledged for the design work or any other Intellectual Property in the Project.
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