This Agreement is between Fitout Builders Pty Ltd (“FITOUT BUILDERS”) and the Client.
By accepting the terms and conditions for the Services, or otherwise accepting performance of the Services by FITOUT BUILDERS, the Client hereby contracts with FITOUT BUILDERS on the terms specified in this Agreement.
CARRYING OUT THE SERVICES
3.1 In consideration of the Client’s obligations under this Agreement, FITOUT BUILDERS shall carry out and complete the Services.
3.2 Subject to clause 5.1, FITOUT BUILDERS shall not levy a fee, and the Client shall not be obliged to pay any fee, for receipt of the Services.
3.3 FITOUT BUILDERS warrant that the Services shall be provided by FITOUT BUILDERS:
3.4 FITOUT BUILDERS is under no obligation to provide any services beyond the Services subject to this Agreement.
3.5 FITOUT BUILDERS do not warrant or guarantee that the Services will be performed by FITOUT BUILDERS within any specified time frame, and the time frame for performance of the Services shall not form part of the contractual terms between the parties.
3.6 Subject to the terms of this Agreement, any directions by the Client or any discontinuity in, or interruption to, the performance of the Services, will not relieve either party from their obligations under this Agreement.
USE OF FITOUT DOCUMENTS
3.7 The Client must provide all Information to FITOUT BUILDERS necessary for FITOUT BUILDERS to complete the Services.
3.8 Subject to clause 3.9 and 3.10, FITOUT BUILDERS may utilize the Fitout Documents in any manner it deems appropriate.
3.9 FITOUT BUILDERS will not post the Fitout Documents or Information on its Website for perusal by Registered Builders until such time as the Fitout Documents are approved by the Client.
3.10 FITOUT BUILDERS will not disclose the Fitout Documents to any persons other than Registered Builders, without the prior written consent by the Client.
3.11 FITOUT BUILDERS is not under any obligation to make independent inquiries about the accuracy of the Information disclosed to it by the Client, including Information included in the Fitout Documents or relied upon FITOUT BUILDERS to produce the Fitout Documents.
DISCLOSURE OF INFORMATION BY FITOUT BUILDERS
3.12 The Client hereby authorizes FITOUT BUILDERS to:
3.13 In the event that a Preferred Builder and the Client do not enter into a contract for the Building Work within 30 days of the date of selection of the Preferred Builder by the Client, or the Preferred Builder advises the Client that it does not intend to enter into a building contract for the Building Work (whichever is earlier), FITOUT BUILDERS shall, as part of its provision of the Services, request the Client to select another of the Quoting Builders to be the Preferred Builder.
3.14 The Client must negotiate in good faith with any Quoting Builder and use best endeavours to agree the terms of a contract with any Quoting Builder that is selected as the Preferred Builder to enter into a contract to perform the Building Works.
3.15 FITOUT BUILDERS must ensure that all builders that quotations to the Client are Registered Builders at the time that their quotations are provided, and have in place the insurances required under the Registered Builder’s contract with FITOUT BUILDERS.
4.1 The Client must co-operate with and use best endeavours to assist FITOUT BUILDERS to perform the Services in a timely manner. The Client must respond to any requests for information from FITOUT BUILDERS within 3 business days of such request.
4.2 The Client must not unreasonably refuse any reasonable request by FITOUT BUILDERS to approve the Fitout Documents.
4.3 The Client must approve the Fitout Documents within 7 days of those documents being provided for approval by Client.
4.4 The Client must not use the Fitout Documents other than for an Official Purpose.
4.5 The Client must not communicate with a Quoting Builder either directly or indirectly, except with the prior written consent of FITOUT BUILDERS.
4.6 The Client must make its own independent inquiries about the capacity and suitability of any Quoting Builder to complete the Building Work.
4.7 A Client who has selected a Preferred Builder must not solicit another person to perform any Building Work unless or until:
whichever is earlier, and, the Client has complied with its obligations in clause 4.8, 3.13 (to select an alternative Preferred Builder) and 3.14.
4.8 The Client must advise FITOUT BUILDERS if they have not entered into a contract for the Building Work with the Preferred Builder within 30 days of the date of selection of the Preferred Builder by the Client.
4.9 The Client must provide a copy of any contract entered into with the Preferred Builder (or any other builder referred by FITOUT BUILDERS to the Client) for the Building Work to FITOUT BUILDERS within 7 days of its signing by the parties.
4.10 A Client that solicits another person to perform Building Work in contravention of clause 4.7, and enters into a contract to perform the Building Work with another builder (other than the Preferred Builder, or a Registered Builder referred to the Client by FITOUT BUILDERs in circumstances described in sub-paragraph (e) of the definition of Service) shall be liable to FITOUT BUILDERS for the actual costs incurred by FITOUT BUILDERS to prepare and complete the Fitout Documents.
5.1 The Client shall become liable to pay, and must pay to FITOUT BUILDERS, a Referral Fee if it does not enter into a binding contract (in writing or otherwise) for Building Work with a Preferred Builder within 45 days of FITOUT BUILDERS notifying the Preferred Builder its selection, unless:
5.2 The Referral Fee shall be equal to the amount of any fee refunded to the Preferred Builder as result of Preferred Builder and Client not entering into a contract for the Building Work within 45 days of selection of the Preferred Builder by the Client.
5.3 The Client hereby authorizes FITOUT BUILDERS to issue an invoice and charge any credit card nominated by the Client to FITOUT BUILDERS at the commencement of the engagement, for any Referral Fee.
5.4 The Fee must be paid without set-off or counterclaim.
5.5 FITOUT BUILDERS may request a representative of the Client to guarantee the payments due from the Client, or performance of the Client’s obligations under this Agreement. The Client agrees to procure the guarantee by its representative in such circumstances.
6.1 The parties acknowledge that all Confidential Information of the other party which may come to their knowledge or into their possession arising from FITOUT BUILDERS’s engagement is and remains the property of the other party, and agree that they will:
6.2 The parties’ obligations of confidentiality owed to the other party under this clause in respect of the Confidential Information shall survive Termination.
6.3 On Termination of this Agreement, the parties must return, and ensure that any person who receives the Confidential Information by their authority returns, the Confidential Information (in any form in which it is held) of the other party.
6.4 For the avoidance of doubt, this clause shall not apply to the Fitout Documents and Information to the extent those documents are disclosed to Registered Builders in accordance with clauses 3.8-10 in connection with the Building Work.
6.5 This clause 6 shall survive discharge, expiry or termination of this Agreement.
7.1 FITOUT BUILDERS acknowledge and agree that all right, title and ownership and interest in the Fitout Documents is, upon discharge, expiry or termination of this Agreement permanently, irrevocably, solely and exclusively vested in the Client, and shall remain with the Client, and that FITOUT BUILDERS will not attach or contest the validity of the Client’s right, title or ownership interest.
7.2 Subject to clause 7.1, the Client acknowledges and agree that all right, title and ownership and interest in the:
7.3 The Client must not do or permit anything to be done which is inconsistent with FITOUT BUILDERS’s right, title or interest in the Website and Software, or its Intellectual Property. If contrary to this clause, the Client attaches or contests FITOUT BUILDERS’s right, title or interest, FITOUT BUILDERS shall have unrestricted rights to enforce, exercise and obtain all legal rights and remedies against the Client including temporary, preliminary and permanent injunctive relief without any obligation to provide security or prove that money damages are an inadequate remedy.
7.4 FITOUT BUILDERS hereby agree that all right, title and interest in the Information (including Intellectual Property in the Information) is permanently and irrevocably vested in the Client and shall remain with the Client.
7.5 The Client hereby grants to FITOUT BUILDERS a non-exclusive, royalty free licence to use the Fitout Documents, any Information and any Intellectual Property provided by the Client to FITOUT BUILDERS to perform the Services.
7.6 This clause 7 shall survive discharge, expiry or termination of this Agreement.
FITOUT BUILDERS shall purchase and maintain at their own cost professional indemnity insurance to the value of $1,000,000.00. FITOUT BUILDERS will on request provide the Client with proof of the insurance.
9.1 In this clause:
9.2 Any amount payable by the Client under this Agreement in respect of a Taxable Supply by FITOUT BUILDERS shall, unless otherwise indicated in this Agreement or on the Website, be expressed as a GST exclusive amount and the Client must, in addition to that amount and at the same time pay to FITOUT BUILDERS the GST payable in respect of that supply.
9.3 FITOUT BUILDERS must issue an adjustment note for any adjustments which arise in relation to a Taxable Supply as and when required to do so by the GST Act.
10.1 The Client represents, warrants and undertakes to FITOUT BUILDERS that:
10.3 The Client hereby acknowledges and agrees that:
For the avoidance of doubt, the Fitout Documents are not intended to be relied upon by either the Client or Preferred Builder for the purpose of carrying out Building Work, and the Client must not use the Fitout Documents for the purpose of either seeking necessary permits for, or carrying out, the Building Work.
The Client agrees that following selection of the Preferred Builder, it will engage the Preferred Builder or other consultant necessary to complete all drawings and specifications required for, and to be relied upon (whether forming part of the building contract, or not) to complete the Building Work. The Client agrees that it advise any builder that it engages that they must not rely on the Fitout Documents to seek necessary permits for, or carry out, the Building Work.
10.4 FITOUT BUILDERS does not, nor do its directors, officers, employees, contractors or agents guarantee or warrant the skill, diligence or due performance of any third party consultant referred to the Potential Client by FITOUT BUILDERS.
10.5 The Fitout Documents are created by employees or contractors engaged by FITOUT BUILDERS. FITOUT BUILDERS does not, nor do its directors, officers, employees, contractors or agents represent, or otherwise warrant, that the Fitout Documents will be created, altered or approved by a duly qualified architect.
10.6 FITOUT BUILDERS does not warrant that any Quoting Builder
The Client must make its own independent inquiries into these matters.
10.7 FITOUT BUILDERS’s Service is web-based and relies on telecommunications technologies for its delivery. The Client acknowledges that there are many factors outside of the control of FITOUT BUILDERS in supply of the Service, particularly relating to supply of telecommunication services to the Client’s premises. FITOUT BUILDERS’s does not provide any warranty that Service is fault fee, will never be interrupted or is available for use at a particular download speed, quality or performance. If there is an interruption to the Service due to technological fault within the control of FITOUT BUILDERS, all time periods specified in this Agreement will be extended by the duration of the interruption to the Services. FITOUT BUILDERS will not be in breach of the Agreement, or liable for any loss or damage suffered by the Client, as a result of any interruption to the Services whatsoever.
11.1 The Client hereby releases and forever discharges FITOUT BUILDERS, its directors, employees, contractors and agents against all Liabilities arising from or relating to:
11.2 The Client hereby indemnifies and forever holds harmless FITOUT BUILDERS, its directors, employees, contractors and agents against all Liabilities, costs (including legal costs, whether or not under a costs agreement, on an indemnity basis), expenses, damages (including all consequential, special and punitive damages), penalties or fines incurred by the FITOUT BUILDERS to any third party arising directly or indirectly from or in connection with, the Client’s performance of its obligations under this Agreement or any breach by the Client of its obligations under this Agreement.
11.3 This clause 11 survives discharge, expiry or termination of this Agreement.
12.1 Subject to this clause, and to the maximum extent permitted by the Australian Consumer Law and all other applicable Law, FITOUT BUILDERS is not liable to:
12.2 Any representation, consumer guarantee, warranty, condition or undertaking that would be implied in the Agreement or under the Agreement by legislation, common law, equity, trade, custom or usage is excluded to the maximum extent permitted by the Australian Consumer Law and all other applicable Law.
12.3 Nothing in the Agreement excludes, restricts or modifies any consumer guarantee, condition, warranty, right or remedy conferred on the Client by the Australian Consumer Law or any other applicable Law that cannot be excluded restricted or modified by agreement.
12.4 Subject to clause 12.3, FITOUT BUILDERS shall not be liable for any Liability or damage arising from:
12.5 Subject to clause 12.3, FITOUT BUILDERS does not, nor do any of its directors, officers, agents or employees, guarantee or warrant that the Services performed by FITOUT BUILDERS, or the Fitout Documents will be fit for the Official Purpose, in circumstances, where:
12.6 To the maximum extent permitted by the Australian Consumer Law and all other applicable Law, the liability of FITOUT BUILDERS for a breach of a non-excludable condition or consumer guarantee warranty referred to in this clause is limited, at FITOUT BUILDERS’s option, to the amount of any fee levied on the Client pursuant to this Agreement or levied on any Referred Builder in respect to the Fitout Documents.
12.7 This clause 12 survives discharge, expiry or termination of this Agreement.
14.1 FITOUT BUILDERS has the right to terminate this Agreement immediately in the event the Client:
14.2 The Client has the right to terminate this Agreement immediately in the event that FITOUT BUILDERS:
14.3 FITOUT BUILDERS may terminate this Agreement with 2 weeks’ notice in writing to the Client.
14.4 This Agreement shall automatically terminate upon discharge of the parties:
14.5 Immediately following discharge, expiry or termination:
14.6 Termination of this Agreement pursuant to this clause 13 is without prejudice to any right of action or remedy which has accrued or may accrue in favour of either party.
14.7 The Termination of this Agreement shall not release the parties from any obligations imposed under this Agreement which are stated to survive Termination or the obligations may be construed as continuing notwithstanding the Termination.
FITOUT BUILDERS may, at its sole discretion, suspend the whole or any part of the Services (as the case may be) if:
The Client will not be entitled to make, and waives its rights to make, any Claim against the FITOUT BUILDERS arising out of, or in connection with, FITOUT BUILDERS’s decision to suspend the whole or any part the Services.
In case either of the parties is totally or partially unable to fulfil one or more of the obligations under this Agreement as a result of acts or occurrences beyond the control, though partial, of the party involved such as, but not limited to, actions, omissions, impositions by local federal or national government authorities, fire, flood, earthquake and other natural disasters, Acts of God, war, revolution, strike, fuel shortages, shortage of raw materials, the party involved will be totally or partially relieved from fulfilling its contract obligations during the period of force majeure, provided that the party involved notifies the other party of the circumstances as soon as reasonably possible.
This Agreement will not be deemed to create a partnership, employment, joint venture or agency relationship of any kind between the parties.
16.1 The failure of a party at any time to require performance of any obligation under this Agreement is not a waiver of that party’s right to claim damages for breach of that obligation, nor is it a waiver of its right or claim to require performance of that or any other obligation under this Agreement.
16.2 A waiver of any provision of or right under this Agreement must be in writing signed by the party entitled to the benefit of that provision or right, and is effective only to the extent set out in any written waiver.
FITOUT BUILDERS may assign, charge or encumber any rights under the Agreement without the Client’s consent.
18.1 FITOUT BUILDERS may modify, alter, change or vary any term or condition of this Agreement provided that any such variation is published on the Website, and notified to the Client in writing;
18.2 Any variation relating to a fee shall only become binding and of effect in respect of the Client if:
The provisions of this Agreement will be deemed to be severable and any invalidity of any provision of this Agreement will not affect the validity of the remaining provisions of this Agreement.
This Agreement constitutes the entire agreement between the parties and there are no other oral undertakings, warranties or agreements between the parties relating to the subject matter of this document and this Agreement is not based upon any representations as to profit or worth nor has any representation been made (whether by this Agreement or otherwise) to induce a party to accept and execute this Agreement.
This Agreement shall be governed and construed in accordance with the laws of the State of Victoria and the parties shall submit to the non-exclusive jurisdiction of the courts of that State in respect of any dispute of any nature whatsoever arising under this Agreement or its implementation or enforcement.
22.1 The parties must:
22.2 Without limiting the foregoing, the parties must:
23.1 The Client grants to FITOUT BUILDERS a security interest in accordance with the terms of this Agreement to secure payment of all and any money due now or in the future by the Client and performance of all obligations of the Client under this Agreement.
23.2 FITOUT BUILDERS and the Client agree that this Agreement establishes a security agreement between the parties for the purposes of section 20(2) of the Personal Property Securities Act 2009 (Cth).
23.3 The Client agrees that it must do all things and sign all documents required by FITOUT BUILDERS to enable FITOUT BUILDERS to register and maintain (including renew before expiry) one or more financing statements in relation to any security interest in the Client’s personal property created by this Agreement.
23.4 The Client must not sell, assign or otherwise dispose of its collateral except in the ordinary course of its business or with the consent of FITOUT BUILDERS. For the avoidance of doubt, the Client must immediately advise FITOUT BUILDERS if any other party seizes, retains or disposes of or proposes or attempts to seize, retain or dispose of any collateral.
23.5 On the happening of any of the events referred to in clause 13.1(f) or default by the Client of its obligations on clause 6.1, FITOUT BUILDERS or its appointed representatives, may without notice, liability or legal process, enter the borrower’s premises (if required) and may seize, use, remove, sell, assign, transfer or otherwise deal with the collateral in satisfaction of the amounts and obligations secured.
23.6 The Client agrees that the security interests in this Agreement secure FITOUT BUILDERS’s reasonable costs and expenses in relation to the enforcement of its security interests including (but not limited to) costs and expenses of seizing, protecting, maintaining and removing collateral from the Client’s premises (if required) and FITOUT BUILDERS’s legal costs on a full indemnity basis.
23.7 FITOUT BUILDERS and the Client agree that, to the extent permitted by law and in respect of each security interest created under this Agreement:
23.8 Where FITOUT BUILDERS has rights and powers in addition to, or existing separately from, those in Chapter 4 of the PPSA, those rights and powers will continue to apply are not limited or excluded (or otherwise adversely affected) by the PPSA.
24.1 Definitions In this agreement, unless the context otherwise requires:
Client means the person, partnership, organisation, trust, company or any other entity which has accepted these terms and conditions for the Services, by way of registration of an account with FITOUT BUILDERS on the Website.
Commencement Date means the date of acceptance of this Agreement in accordance with clause 2.
Fitout Documents means:
Information means the information about the Site, or the business or business requirements of the Client, including notes, plans, drawings and all other such information.
Insolvency Event means:
Intellectual Property includes all copyright, and all neighbouring rights, all rights in relation to inventions, discoveries, improvements, innovations including patent rights, registered and unregistered trade marks (including service marks), registered and unregistered designs, Trade Secrets, moral rights and all other rights resulting from intellectual activities in the industrial, scientific, literary, music, dramatic or artistic fields.
Latent Conditions means any physical condition on, underlying or adjacent to the Site which a competent person in the position of FITOUT BUILDERS, with the skills and experience of FITOUT BUILDERS, would not be able to identify having examined the Information or inspected the Site prior to carrying out the Services without the engagement of a specialist third party consultant.
Liabilities includes all liabilities (whether actual, contingent or prospective), losses, damages, costs, expenses and penalties of whatever description.
Official Purpose means the purpose of providing the Services.
Personal Information has the meaning given in the Privacy Act 1988 (Cth), and includes the personal information of:
Preferred Builder means a Registered Builder who was a Quoting Builder selected by the Client to negotiate a contract with the Client to perform the Building Work.
Privacy Law means the Privacy Act 1988 (Cth) (including the Australian Privacy Principles contained in the Privacy Act) any other applicable law, statute, regulation, ordinance, code, standard or requirement of any government or semi-government body that relates to privacy.
Quoting Builder means a Registered Builder that elects via the Website to have the opportunity to provide a quotation for Building Work and who has been nominated via the Website to provide a quotation.
Registered Builder means a person, partnership, organisation, trust, company or any other entity that is the holder of a current licence to perform building work under the provisions of the relevant building legislation applicable in the State or Territory in which the Site is located (that legislation being the Building Act 1993 in the State of Victoria).
Site-Related Issues means:
Site means the premises in respect of which the Services is provided to the Client, and to which the Fitout Documents are intended to apply.
Software means any computer program designed, developed, tested, deployed, maintained or supported by FITOUT BUILDERS.
Trade Secrets means all secret processes, formulae and technical information possessed or developed or acquired by either party (other than from the other party) prior to and during the term of this Agreement.
Termination means the end of the Agreement, howsoever arising, including discharge through performance of both parties’ obligations, a termination initiated by a party (including pursuant to clause 13), the expiry of the term or the effluxion of the time.
Website means the set of web pages connected under the domain name [Insert domain name] or such other domain name as utilised by FITOUT BUILDERS from time to time.
In this agreement, unless the context otherwise requires:
A party may notify the other party to the Agreement of a dispute about a matter relating to this Agreement, in writing.
The parties must meet to discuss the dispute within 7 days of a dispute being notified.
If the meeting does not resolve the dispute, then either party may elect by notice in writing to the other party to submit the dispute to mediation.
A mediation is to be conducted by a mediator who is independent of the parties and appointed by agreement, or failing agreement, by a person appointed by the Chair of the Resolution Institute (Level 2, 13-15 Bridge Street, Sydney, NSW 2000).
It is a condition precedent to the right of either party to commence litigation other than for interlocutory relief that it the dispute has been submitted to mediation.