1. THE CLIENT

This Agreement is between Fitout Builders Pty Ltd (“FITOUT BUILDERS”) and the Client.

2. ACCEPTANCE

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.

3. THE SERVICES

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:

(a) in good faith;
(b) with due care, skill and diligence;
(c) in a manner which is fit for purpose; and
(d) in compliance with all applicable laws and regulations applicable from time to time.

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:

(a) communicate the Client’s selection of the Preferred Builder to the Preferred Builder;
(b) extend an invitation to the Preferred Builder to enter into negotiations and discussions with the Client for the purpose of entering into a contract to perform the Building Work;
(c) disclose its name, phone number(s), email address and relevant contact person to a Quoting Builder or the Preferred Builder.

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. CLIENT OBLIGATIONS

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:

(a) the Preferred Builder advises the Client that it does not intend to enter into a contract for the Building Work with the Client;
(b) the Preferred Builder does not discuss entering into a contract for the Building Work with the Client for a period of 14 days after the Preferred Builder is provided with the contact details of the Client; or
(c) the Preferred Builder and the Client do not enter into a contract to perform the Building Work within 30 days of the date of selection of the Preferred Builder,

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. PAYMENT

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:

(a) the Client has negotiated with the Preferred Builder in good faith to enter into a building contract for the Building Work; and
(b) the Client enters into a contract for the Building Work with another Quoting Builder, or Registered Builder referred by FITOUT BUILDERS to the Client.

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. CONFIDENTIALITY

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:

(a)
- (i) use the Confidential Information of the other party solely for:
- (ii) in the case of Confidential Information acquired by FITOUT BUILDERS, the purpose of performing, or in connection with, the Services; and
- (iii) in the case of Confidential Information acquired by the Client, for an Official Purpose.
(b) at all times keep the Confidential Information in confidence;
(c) they will not, either during or after FITOUT BUILDERS’s engagement with the Client, disclose any Confidential Information of the other party to any person, organisation or third party unless required to do so by the other party or by law;
(d) they will not, either during or after FITOUT BUILDERS’s engagement with the Client, make use of any Confidential Information of the other party to gain directly or indirectly any improper advantage; and
(e) they will not disclose or use, for their own purposes or for the purposes of any person associated with them, any Confidential Information of the other party.

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. INTELLECTUAL PROPERTY

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:

(a) Website and Software; and
(b) Intellectual Property communicated to the Client by FITOUT BUILDERS, or created by FITOUT BUILDERS in connection with the Services, is permanently, irrevocably, solely and exclusively vested in FITOUT BUILDERS and shall remain with FITOUT BUILDERS, and that the Client will not attach or contest the validity of FITOUT BUILDERS’s right, title and ownership interest.

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.

8. INSURANCE

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. GST

9.1 In this clause:

(a) “GST” means the Goods and Work Tax levied under the GST Act or any other goods and Work tax, value added tax, consumption tax or tax of similar effect levied from time to time;
(b) “GST Act” means the A New Tax System (Goods and Work Tax) Act 1999 (Commonwealth) (as amended); and
(c) words and phrases which are defined in the GST Act have the same meaning when used here.

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. ACKNOWLEDGEMENT AND WARRANTIES

10.1 The Client represents, warrants and undertakes to FITOUT BUILDERS that:

(a) the Client has full power and authority to enter into this Agreement and to perform all its obligations under it, and that:
- (i) where the Client is an individual, the Client has legal capacity to execute this Agreement;
- (ii) where the Client is a company or incorporated entity, the Client has been and is duly formed under the laws of the place of its formation and has power and authority to deal in contracts and the person executing this Agreement has full power and authority to execute this Agreement on behalf of the Client.
(b) in executing this Agreement and in giving effect hereto the Client will not infringe any provision of any deed or other document or agreement to which the Client is a party.
(c) the Client has given careful consideration to its objectives and needs, and formed the opinion that:
- (i) the Services;
- (ii) the Fitout Documents; and
- (iii) use of the Website to identify a builder to complete Building Work, is fit for the Client’s needs.
(d) the Client has is ready, willing and able to engage a Registered Builder to perform the Building Work;
(e) the Client genuinely intends to engage a Registered Builder to complete the Building Work;
(f) the Client will negotiate in good faith with the Preferred Builder;
(g) the Client has provided FITOUT BUILDERS with all Information necessary for it to complete the Services;
(h) all Information (and other information) supplied to FITOUT BUILDERS, whether in writing or otherwise, is true and correct and not misleading as at the date it is provided to FITOUT BUILDERS and that, any changes to the Information will be notified to FITOUT BUILDERS at the earliest time practicable. The Client acknowledges that FITOUT BUILDERS will perform the Services in reliance on the Information provided by the Client and that FITOUT BUILDERS shall not be under any responsibility to verify the accuracy of any Information provided. Without limiting its rights under this clause, FITOUT BUILDERS shall not be liable to the Client for any liabilities arising from, or in connection with, a breach by the Client of this warranty.

10.2 The Client warrants that they have read and will comply with the Terms of Use of the Website.

10.3 The Client hereby acknowledges and agrees that:

(a) FITOUT BUILDERS do not warrant that the Fitout Documents are fit for any purpose other than for the Official Purpose.

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.
(b) FITOUT BUILDERS does not warrant the accuracy of the Fitout Documents if:
- (i) they have been altered or varied in any manner whatsoever by persons other than FITOUT BUILDERS; or
- (ii) if the information provided to FITOUT BUILDERS by the Client and relied upon by FITOUT BUILDERS to create the Fitout Documents, is not true and correct or is misleading.
(c) FITOUT BUILDERS’s engagement pursuant to this Agreement is limited to performing the Services, and upon discharge of its performance obligations in respect to the Services, FITOUT BUILDERS is under no obligation to the Client, including without limitation, in respect to:
- (i) preparation of drawings or specification to be used or relied upon by the Client or the Preferred Builder (or any Quoting Builder subsequently engaged to perform Building Work by the Client) to complete the Building Work;
- (ii) engagement of consultants for the purpose of preparation of such drawings or specifications;
- (iii) advice, guidance, administration or adjudication in relation to any contract between the Client and the Preferred Builder; and
- (iv) supervision, administration or accreditation of any Building Work carried out in reliance on the Fitout Documents.
(d) The Client must make its own independent inquiries in relation to all Site-Related Issues and the suitability of the Fitout Documents having regard to any Site- Related Issue, including seeking advice from duly qualified third parties, prior to approving the Fitout Documents.
(e) FITOUT BUILDERS’s obligations do not extend to, and FITOUT BUILDERS does not guarantee or warrant:
- (i) that the Fitout Documents are fit for the purpose of conducting Building Work;
- (ii) that the Fitout Documents take into account Site-Related Issues; or
- (iii) that a Quoting Builder has the capacity, expertise or experience to provide advice in respect of Site-Related Issues.

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

(a) is solvent;
(b) is of good fame or character;
(c) has the capacity, skill or experience to perform the Building Work in accordance with the Fitout Documents;
(d) will perform the Building Work in accordance with the Fitout Documents, and with due care, skill and diligence;
(e) will comply with all laws, regulations, codes of practice or licensing requirements; and
(f) will comply with the terms of any contract entered into with the Client.

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. RELEASE AND INDEMNITY

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:

(a) FITOUT BUILDERS referral or recommendation of a third-party consultant to the Client;
(b) reliance by the Client or Preferred Builder (or any other builder), on the Fitout Documents for the purposes of the Building Work (whether forming part of the contract for the Building Work, or not);
(c) reliance by the Client or Preferred Builder (or any other builder), on the Fitout Documents to negotiate a contract between them for the Building Work;
(d) reliance by a Quoting Builder (or any other builder) on the Fitout Documents to provide a quotation to the Client;
(e) reliance by a Quoting Builder (or any other builder) on the Fitout Documents to create plans, drawings or specifications for the Building Work; and
(f) conduct or omissions by a Registered Builder (including its capacity as a Quoting Builder or Preferred Builder) or its subcontractors, including their failure to provide a Quotation for the Building Work.

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. LIABILITY

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:

(a) the Client; or
(b) any third party, for:
- (i) any Liability, loss or damage of any kind caused by or resulting from any act or omission of:
  - (A) FITOUT BUILDERS;
  - (B) the Client;
  - (C) a Registered Builder (including while performing or subject to the obligations or duties of a Quoting Builder or Preferred Builder);
  - (D) subcontractors engaged by the Registered Builder (including while performing, or subject to, the obligations or duties of a Quoting Builder or Preferred Builder);
  - (E) any third party; or
  - (F) any of FITOUT BUILDERS’s employees, agents or contractors; or
- (ii) any Liability, loss, damage (including without limitation any loss of profits, or economic, special, indirect or consequential loss or damage), expense, injury or death sustained or incurred by the Client, or resulting directly or indirectly out of any:
  - (A) negligence of FITOUT BUILDERS; or
  - (B) breach by FITOUT BUILDERS under any contract or this Agreement, even if FITOUT BUILDERS is notified of the possibility of that potential Liability, loss, damage, expense injury or death.

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:

(a) use of, or reliance upon, the Fitout Documents by the Client, a Registered Builder (including while performing, or subject to, the obligations or duties of a Quoting Builder or Preferred Builder) or its subcontractors, any other builder or third party consultant;
(b) any quotations or other document created by a Registered Builder (in its capacity as a Quoting Builder or Preferred Builder) in response to, in connection with or in reliance on the Fitout Documents;
(c) any Site-Related Condition;
(d) any Latent Condition;
(e) any outage or interruption to the Website; or
(f) any referral or recommendation of a third-party consultant to the Client for their engagement or use.

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:

(a) the Client uses the Fitout Documents prior to them being submitted to the Client by FITOUT BUILDERS for approval and the Client approving them;
(b) the Client alters, amends, varies or adds to the Fitout Documents or engages a person other than FITOUT BUILDERS to alter, amend, vary or add to the Fitout Documents;
(c) the Client provides Information to FITOUT BUILDERS which is not true and correct or is misleading and FITOUT BUILDERS does not possess the knowledge required to verify the accuracy of the Information without making further independent inquiries; or
(d) there are Latent Conditions affecting the Site.

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.

13. USE OF INTERNET

14. TERMINATION

14.1 FITOUT BUILDERS has the right to terminate this Agreement immediately in the event the Client:

(a) commits a breach of an essential term of this Agreement;
(b) breaches clause 4.4, 4.5, 4.7 or 7.2 of the Agreement;
(c) breaches a term of this Agreement other than those specified in clause 14.1(b) and fails to remedy the breach within seven (7) days after being notified that it requires remedy;
(d) engages in persistent breaches of any of the terms of this Agreement;
(e) engages in any behaviour during the course of, or in connection with, FITOUT BUILDERS’s engagement that can be characterised as an act or acts of dishonesty, fraud, neglect of duty or a breach of any policies or regulations adopted by the Client which is likely in the reasonable opinion of the FITOUT BUILDERS to bring it into disrepute or cause loss to the FITOUT BUILDERS;
(f) does not:
- (i) provide the Information requested by FITOUT BUILDERS within 14 days of FITOUT BUILDERS requesting the Information;
- (ii) respond within 14 days to FITOUT BUILDERS’s request to approve the Fitout Documents; or
- (iii) does not approve the Fitout Documents within 1 month from the Commencement Date, provided that FITOUT BUILDERS has reasonably requested such approval prior to expiry of that period.
(g) suffers an Insolvency Event.

14.2 The Client has the right to terminate this Agreement immediately in the event that FITOUT BUILDERS:

(a) breaches this Agreement and fails to remedy the breach within seven (7) days after being notified that it requires remedy; or
(b) engages in any serious or persistent breaches of any of the terms of this Agreement.

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:

(a) discharge of FITOUT BUILDERS’s obligations in respect of the Services; or
(b) discharge of FITOUT BUILDERS’s obligations, whichever is later.

14.5 Immediately following discharge, expiry or termination:

(a) both parties must cease using any Confidential Information and Intellectual Property of the other and deliver any Confidential Information that it holds in any form up to the Client together with all materials related to it or in any way associated with it, possessed by or in the control of the party;
(b) both parties must deliver to other party and cease using all property and materials belonging to the other party in their control; and
(c) the Client must pay all outstanding fees to FITOUT BUILDERS.

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.

15. SUSPENSION

FITOUT BUILDERS may, at its sole discretion, suspend the whole or any part of the Services (as the case may be) if:

(a) the Client does not provide FITOUT BUILDERS with any Information requested within the time frame specified in this Agreement or otherwise agreed between the parties; or
(b) the Client does not engage the services of a third-party consultant after FITOUT BUILDERS recommend to the Client that such consultant be engaged.

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.

16. FORCE MAJEURE

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.

17. RELATIONSHIP BETWEEN THE PARTIES

This Agreement will not be deemed to create a partnership, employment, joint venture or agency relationship of any kind between the parties.

18. WAIVER

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.

17. SUBCONTRACTING AND ASSIGNMENT

FITOUT BUILDERS may assign, charge or encumber any rights under the Agreement without the Client’s consent.

18. VARIATIONS TO AGREEMENT

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:

(a) the Client does not notify FITOUT BUILDERS that it objects to the variation within 7 days of being notified in writing; and
(b) the variation is intended to apply to the terms and conditions between FITOUT BUILDERS and all clients registered on the Website.

19. SEVERABILITY

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.

20. ENTIRE 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.

21. GOVERNING LAW

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. PRIVACY

22.1 The parties must:

(a) comply with all Privacy Laws in respect of all Personal Information collected, used, disclosed or otherwise handled by him in the course of or in connection with this Agreement;
(b) implement appropriate technical and operational processes to protect privacy;
(c) not do anything or omit to do anything that would constitute a breach by FITOUT BUILDERS of Privacy Law, or will otherwise cause the Client to breach its obligations under any Privacy Law.

22.2 Without limiting the foregoing, the parties must:

(a) collect, use, disclose and otherwise deal with Personal Information collected by or on behalf of the other party in the course of or in connection with this Agreement only for the purpose of performing this Agreement. For the avoidance of doubt FITOUT BUILDERS shall, and the Client agrees, that the personal information of the Client may be provided to Registered Builders in connection for the purpose of performing the Agreement.
(b) comply with all reasonable requests or inquiries made by the other party in relation to the management of Personal Information, or any interferences or alleged interferences with privacy (including investigation by the regulator);
(c) co-operate with the other to resolve any complaint made under any Privacy Law.

23. SECURITY

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:

(a) FITOUT BUILDERS and the Client contract out of:
- (i) dispose or retain personal property under section 125 of the PPSA;
- (ii) include details of amounts paid to other secured parties in a statement of account under section 132(3)(d) of the PPSA; and
- (iii) give notice of its proposal to retain collateral under section 135 of the PPSA; and
(b) FITOUT BUILDERS and the Client contract out of section 142 and 143 of the PPSA;
(c) FITOUT BUILDERS and the Client contract out of the Client’s right to (and the borrower waives its right to):
- (i) receive notice of the removal of an accession pursuant to section 95 of the PPSA;
- (ii) receive notice of the decision of FITOUT BUILDERS to enforce any security interest in accordance with land law decisions under section 118 of the PPSA;
- (iii) receive notice of an action of FITOUT BUILDERS to enforce any security interest in liquid assets under section 121(4) of the PPSA;
- (iv) receive notice of FITOUT BUILDERS’s proposal to dispose of personal property under section 130 of the PPSA;
- (v) receive a statement of account under section 132(4) of the PPSA;
- (vi) receive a verification statement under section 157 of the PPSA; and
(d) FITOUT BUILDERS and the Client contract out of the application of part 4.3 of the PPSA (other than sections 126, 128, 129(1), 133 and 134(1)) if that part would apply by virtue of section 116(2) of the PPSA.

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. INTERPRETATION

24.1 Definitions In this agreement, unless the context otherwise requires:

Agreement means this agreement including any schedules;
Building Works means construction work to be performed by the Preferred Builder following their selection by the Client at the Site.
Claims includes any claim, action, judgement, arbitration, proceeding, suit, cause of action, defence, set off or demand for Liabilities)
- (a) under, arising out of, or in connection with, this Agreement and the Services under this Agreement; or
- (b) under, arising out of, or in connection with, either party’s conduct prior to the date of this Agreement or the negotiations leading to the party’s entry into this Agreement; or
- (c) otherwise at law or in equity including but not limited to, by statute, in tort for negligence or for restitution.

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.

Confidential Information:

(a) includes information regarding the business of or used in the business, of either party comprising:
- (i) all Intellectual Property;
- (ii) computer systems, software programs and all Information (and all copies and extracts made of or from such Information);
- (iii) products and moral rights (including rights to apply for protection of those rights);
- (iv) know-how, and intangible assets;
- (v) product development;
- (vi) domain names, business names and logos;
- (vii) marketing, advertising, promotion and distribution materials;
- (viii) individuals and organisations with whom or which the Client deals or has potential dealings;
- (ix) client and potential client lists, identities and contacts;
- (x) client and potential client financial, business or personal information;
- (xi) research in relation to products, software, markets and clients or potential Clients;
- (xii) proposals, tenders, plans, goals or objectives prepared in respect of clients or potential clients;
- (xiii) the pricing policies, product costings and financial performance of the client; or
- (xiv) current or future business methods, systems and strategies.
(b) includes in relation to FITOUT BUILDERS, the Fitout Documents;
(c) does not include information which:
- (i) is or becomes public knowledge other than by breach of this Agreement;
- (ii) were in the other party’s possession without restriction prior to the Commencement Date; or
- (iii) the other party has independently developed or acquired.

Fitout Documents means:

(a) any concept drawing; and
(b) any document containing:
- (i) a description of the finishes for the fitout as represented in the concept drawing; and/or
- (ii) an estimate of the cost of labour and materials required by the Client to give effect to a fitout described in the concept drawing.

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:

(a) the Client is or becomes bankrupt or insolvent or makes an assignment for the benefit of creditors;
(b) a receiver, receiver and manager or equivalent administrator is appointed over the whole or any substantial part of the undertaking or assets of the Client;
(c) an application to wind up the Client is or has been made, and not been stayed or dismissed within fourteen (14) days of the filing of the notice (excepting where that winding up application has been filed to permit the amalgamation or reconstruction of that company);
(d) the Client has entered into any scheme of arrangement, deed of Trust or composition with creditors generally;
(e) the Client has become a party to proceedings against the Client under any provisions of any law relating to bankruptcy, liquidation or insolvency.

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:

(a) the directors, employees or contractors of FITOUT BUILDERS and the Client;
(b) clients of FITOUT BUILDERS or the Client; or
(c) the directors, employees or contractors of clients of the Client.

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).

Service means:

(a) the creation, development and alteration of no more than 3 versions of each of the Fitout Documents;
(b) the disclosure of the Fitout Documents to Registered Builders by posting of the Fitout Documents on the Website; and
(c) the provision of quotations from three (3) Registered Builders to the Client for its selection of a Preferred Builder,
(d) the provision of the name and contact details of the Registered Builder whose quotation is selected by the Client; and
(e) the provision of an additional name and contact details of a Registered Builder whose quotation was not selected by the Client but who provided a quotation for the Client, if and when the Registered Builder whose quotation was selected by the Client demands, requests or quotes a contract sum perform the Building Work which is 25% greater than the total amount of the quotation supplied by the Registered Builder excluding any reasonable amounts demanded, requested or quoted for variations to the Building Work, and any activity which is necessary and incidental thereto;

Site-Related Issues means:

(a) licenses, consent, permissions, authorisations, permits or contracts relating to the carrying out Building Work;
(b) any matter affecting title, ownership or possession of the Site;
(c) any existing structures, fixtures or materials on the Site either at or before commencement of the Building Works, or the removal of such structures and fixtures;
(d) any engineering or other specialist consultant advice is required for the Building Work; and
(e) any Latent Condition.

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.

Terms of Use are the terms and conditions applicable to users of the Website as published on the Website from time to 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.

24.2 General

In this agreement, unless the context otherwise requires:

(a) a reference to any legislation or legislative provision includes any statutory modification or re-enactment of, or legislative provision substituted for, and any subordinate legislation issued under, that legislation or legislative provision;
(b) the singular includes the plural and vice versa;
(c) a reference to an individual or person includes a corporation, partnership, joint venture, association, authority, trust, state or government and vice versa;
(d) a reference to any gender includes all genders;
(e) a reference to a recital, clause, schedule, annexure or exhibit is to a recital, clause, schedule, annexure, or exhibit of or to this agreement;
(f) a recital, schedule, annexure or a description of the parties forms part of this agreement;
(g) a reference to any agreement or document is to that agreement or document (and, where applicable, any of its provisions) as amended, novated, supplemented or replaced from time to time;
(h) a reference to any party to this agreement, or any other document or arrangement, includes that party’s executors, administrators, substitutes, successors and permitted assigns;
(i) where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning;
(j) a reference to a bankruptcy or winding up includes bankruptcy, winding up, liquidation, dissolution, becoming an insolvent under administration (as defined in s 9 of the Corporations Law), being subject to administration and the occurrence of anything analogous or having a substantially similar effect to any of those conditions or matters under the law of any applicable jurisdiction, and to the procedures, circumstances and events which constitute any of those conditions or matters;
(k) where an expression is defined anywhere in this agreement, it has the same meaning throughout.

25. DISPUTE RESOLUTION PROCESS

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.

Client Service Agreement