INTERIOR DESIGN SERVICES AGREEMENT (PRE-START PACKAGE)
TERMS OF SERVICE
1. ENGAGEMENT
(a) These terms of service (Terms of Service), together with the Design Proposal (Proposal) (together, Agreement), govern the provision of the Services by Happy House Co Pty Ltd t/as Happy House Co. (ACN: 625 815 321) (Happy House Co., us, we, our) to the client listed in the Proposal (Client, you, your) for the Project listed in the Proposal (Project).
(b) The Proposal contains details of the Project we will work on for you and prevails over the Terms of Service in the event of any inconsistency.
(c) The Agreement commences on the date you agree in writing to the terms of the Proposal (Commencement Date) and continues until the parties have completed their respective obligations under the Agreement, unless the Agreement ends earlier in accordance with clause 13 (Term).
(d) This Agreement forms the entire agreement between the parties as to its subject matter. Therefore, please carefully read this Agreement and let us know if you have any questions, before accepting the Proposal.
(e) The terms of this Agreement can only be changed with the written consent of both parties, or otherwise in accordance with clause 2.4.
2. SERVICES AND DELIVERABLES
2.1 General
(a) We are not required to commence the Services until the Agreement is signed and we receive cleared payment of the Fees.
(b) We will provide you with the Services and Deliverables set out in the Proposal in ‘stages’ (each a Stage).
(c) Any services and deliverables not referred to in the Proposal will be considered ‘out of scope’ and will not be supplied by us as part of Fee Proposal (Out of Scope).
(d) The Deliverables are supplied in a non-editable PDF format. We do not provide editable versions of the Deliverables unless otherwise agreed in writing.
(e) We may engage sub-contractors to perform all or any part of our obligations under this Agreement in our discretion.
2.2 Project Dates
Where we give you proposed delivery date(s) or estimated timeframes for the Project, you acknowledge that due to a range of circumstances that may arise outside of our control, these dates are an estimate only and subject to change. We will inform you in advance of date changes to your Project.
2.3 Feedback, Approval and Revisions
(a) You agree to provide any feedback and approvals requested by us in relation to Deliverables or other matters relating to your Project by the dates we require.
(b) If we request feedback or an approval by a certain date and you do not come back to us, you acknowledge that the Project may be delayed, and we may suspend our performance of the Services. We are not liable for any Loss or Claim suffered by you as a result.
(c) Where we request you to provide feedback and approvals to Deliverables, we will prepare revisions without additional charge if this is provided for in the Proposal (Permitted Revisions). Permitted Revisions extend to reasonable changes only.
(d) If Permitted Revisions are not provided for in the Proposal, or you would like additional sets of revisions (Additional Revisions), these will be charged by the hour in accordance with our Rate Card. We will confirm your acceptance of the additional charges before proceeding with Additional Revisions.
(e) We reserve the right to reasonably decline revision requests or to treat the revision request as a Variation under clause 2.4, in our discretion.
2.4 Variations
If you wish to change the Services and/or Deliverables listed in the Proposal (Variations):
(a) You must make your request to us in writing;
(b) We will notify you in writing if we can accommodate the Variations request and advise you of any further service fees (which will be charged by the hour in accordance with our Rate Card, unless otherwise stated), additional third party costs, adjusted delivery times and other relevant terms (Varied Terms);
(c) We do not guarantee we can provide all Variations;
(d) We will not commence work on any Variations unless you have agreed to the Varied Terms in writing;
(e) We may require you to sign an updated Proposal including all Variations; and
(f) You agree that if Variations are requested, our Services and the provision of Deliverables may be delayed.
2.5 Final Deliverables
We will provide you with the final versions of the Deliverables (Final Deliverables) which can be used by you strictly in accordance with clause 7.2(a).
3. SUPPLIERS AND SUPPLIER CONTRACTS
(a) As part of the Services, we may provide you with Recommendations regarding third party suppliers (Suppliers).
(b) Suppliers may include suppliers of services (such as tradespeople, architects, builders, joiners and more) and/or suppliers of Products (such as supplier of furniture, art, homewares and more).
(c) In relation to Suppliers, you acknowledge and agree:
(i) You (not us) are responsible for ensuring you are comfortable with the Supplier and the terms of any contract with the Supplier (Supplier Contract), entering a Supplier Contract and paying the Supplier’s applicable charges; and
(ii) We are not responsible or liable for Suppliers’ goods and services, nor for payment of Supplier costs and you release us from any such responsibility and liability.
4. PRODUCTS
Where we provide you with lists, layouts, presentations or schedules of selections, fixtures, fittings and other goods for your Project (excluding furniture) (Products) as part our Services (Documentation), you accept and agree that:
(a) It is your responsibility to purchase or arrange for the purchase of Products in the Documentation;
(b) The Documentation is a ‘Recommendation’ and clause 9 applies;
(c) Your ability to purchase Products in the Documentation is subject to the availability of those Products and this is outside our control;
(d) The prices of Products can change, and this is outside our control;
(e) Where Products in the Documentation become unavailable, or the price of a Product increases, we are not required to source alternative product options (Alternative Products). If you would like us to assist with sourcing Alternative Products and:
(i) The Project has not yet been completed: this will be considered a Variation and clause 2.4 will apply; or
(ii) The Project has been completed: this will be considered a new project request, which we may accept or reject in our discretion, and additional fees and terms will apply, and
(f) Whether or not the Supplier provides a refund for Products purchased is outside our control. You agree that it is your responsibility to review the Supplier’s refund policies prior to purchasing a Product and, if required, discuss any refund requests directly with the relevant Supplier; and
(g) If you encounter any defects or other issues with such Products, you (not us) are responsible for contacting the Supplier or arranging for a remedy. In such circumstances, please contact the Supplier directly to discuss.
5. CLIENT OBLIGATIONS
(a) In relation the Proposal, you agree to:
(i) Supply us with any information, documentation, measurements, plans, floorplans, images, site access, feedback, approvals, facilities and assistance that we need from time to time, in the format we require and by the dates we require (Client Materials);
(ii) Follow the terms of this Agreement and pay all invoices on time; and
(iii) Be collaborative, easily contactable, open and considerate in your dealings with us, our representatives and Suppliers.
(b) You agree that you are responsible for obtaining any permissions, approvals, licences or other such things necessary from any relevant authority, body, person or other entity (including but not limited to any relevant strata corporate, body corporate, council or landlord of the Project Address, or other entities), in order for us to perform the Services and provide the Deliverables (Required Permission), and we reserve the right to assume that any Required Permission has been obtained by you. If you have not obtained the Required Permission, you are responsible for any Loss or Claim that arise as a result.
(c) If you are not able to follow your obligations in clauses 5(a) or 5(b), you acknowledge that the Services may be delayed or negatively impacted.
(d) You agree that clause 5(a) or 5(b) are material clauses of this Agreement, and any breach of either clause will be considered a material breach of this Agreement.
(e) You agree that you (not us) are responsible for the budget and financial management of the Project listed in the Proposal.
(f) At the end of the Term, you acknowledge that we are not required to return the Client Materials, unless you request so in writing within 30 days after the Term ends.
6. FEES AND PAYMENT TERMS
(a) In consideration for the Services, you agree to pay the Fees set out in the Proposal.
(b) We are not required to commence the Services until we receive cleared payment of the Fees.
(c) The Proposal sets out certain fees and expenses that are not included in the Fees and must be paid in addition to the Fees (Additional Charges).
(d) The Fees, Additional Charges and any other charges that are payable under this Agreement are collectively referred to as the Total Costs under this Agreement.
(e) We will issue you with invoices for the Total Costs in accordance with the Payment Schedule set out in the Proposal.
(f) You agree to pay all invoices issued under this Agreement within 7 days of the date they were issued, and into our nominated bank account set out on our invoices.
(g) The Total Costs are exclusive of GST unless stated. You agree to pay GST on top of amounts charged to you under this Agreement, where validly stated on our invoice.
(h) You agree that ‘time is of the essence’ when making payments under this Agreement.
(i) We reserve the right to charge Interest on any and all overdue payments under this Agreement and to refer any debts to a debt collector or solicitor. All costs incurred by us in doing so will be payable by you.
(j) If any invoice is outstanding by more than 7 days, we may suspend our performance of the Services.
7. INTELLECTUAL PROPERTY AND CREDIT
7.1 General
(a) You give us a licence to use the Client Materials (including any IP included in the Client Materials) for the purpose of performing our obligations under this Agreement. You confirm that our use of the Client Materials will not infringe any third party rights.
(b) Subject to clause 7.1(a), the rights in all IP in connection with the provision of the Services including the draft Deliverables and Final Deliverables (the Developed IP), as well as modifications of the Developed IP, will automatically upon creation vest in and become our exclusive property throughout the world in perpetuity.
7.2 Use of IP
(a) Once we have received cleared payment of the Total Costs for the Project and subject to the terms of clause 7.2 below, we grant you an exclusive licence to use the IP in the Final Deliverables supplied to you for the Project (Final Developed IP) on the basis that you only use the Final Developed IP for the Approved Purpose listed in the Proposal.
(b) You agree that any use of the Final Developed IP other than for the Approved Purpose is not permitted. If you seek an assignment of the IP in the Final Deliverables, this must be further agreed in writing by us, and additional fees may apply.
(c) You agree that any modifications to the Developed IP must be made by us unless we otherwise agree in writing. For the avoidance of doubt, you agree that you will not use the Developed IP or Final Developed IP, or any Deliverables provided to you by us in relation to this Project:
(i) On other projects; or
(ii) For completion of this Project by others,
unless we expressly agree in writing, where additional fees may apply.
(d) Nothing in this Agreement transfers any rights in and to our IP to you. If we incorporate any of our IP into the Final Developed IP, we give you a non-exclusive licence to use the IP for the limited purpose of you being able to use the Final Developed IP in accordance with clause 7.2(a).
7.3 Third Party IP
(a) We may at our discretion (or at your request) incorporate IP owned by third parties into the Deliverables such as third party images, fonts and other licensed materials (Third Party IP).
(b) Your use of the Third Party IP as part of the Final Developed IP is subject to terms set by the relevant third party owner (Third Party Licences). Where licence fees are required for your use of the Third Party IP as part of the Final Developed IP, we will inform you of such fees. You will be responsible for maintaining and paying for all applicable Third Party Licences unless otherwise notified by us in writing.
8. PROMOTION, MARKETING AND CREDIT
(a) As a condition of us entering into this Agreement and providing the Services, you agree:
(i) To give us all necessary licences and consents to use the Final Developed IP and to take and use photographs and videos of the Project, for our self-promotional, marketing or demonstrative purpose (including in awards, pitches, on our social media pages and website, and more); and
(ii) We can put a sign at the Project Address to promote our business during the Project.
(b) Despite our rights under clause 8(a)(i), we appreciate that you may wish to retain a level of privacy in relation to the Project. If you have any concerns about elements of the Project being photographed, recorded or otherwise used by us under clause 8(a)(i), please contact us to discuss and we will work with you to alleviate any concerns and to maintain your privacy.
(c) You agree to provide the credit, ‘Interior Design by Happy House Co.’ (Credit), if you use the Project or Final Developed IP (or photographs or videos of the Project or Final Developed IP) for any publicity or promotional purposes, or where the Project or Developed IP is filmed, photographed or otherwise used for publication in a magazine, journal, book, television program, advertisement, movie, broadcast, website, social media page or platform, or similar publication.
(d) Where applicable, the Credit must be prominently displayed on any publicity materials for the Project including the hoarding, brochures, Project website cover page and other related materials.
9. RECOMMENDATIONS
(a) We may provide advice, recommendations and opinions to you in relation to the Project (Recommendation).
(b) Recommendations are provided in our professional opinion as interior designers but are not intended to be formal guarantees or warranties and should not be relied on by you. You must ensure that you carry out your own due diligence after receiving any Recommendation.
(c) Subject to clause 10(a) and to the extent permitted by law, we are not liable for any Loss you might sustain as a result of any Recommendation.
10. AUSTRALIAN CONSUMER LAW
(a) Nothing in this Agreement restricts, limits or excludes any rights you may have under the Australian Consumer Law or any other law.
(b) If you acquire any goods or services under this Agreement as a Consumer, they will be supplied in accordance with any applicable Consumer Guarantees. Otherwise, to the full extent permitted by law, we exclude any warranty or condition in relation to goods and services supplied under this Agreement, which would otherwise be implied, including that they will be suitable or fit for any particular purpose.
11. CLIENT ACKNOWLEDGEMENTS
You acknowledge and agree the following:
(a) It is your responsibility to provide us with accurate measurements, floorplans and Client Materials and to confirm that any measurements, specifications, designs or other information provided by us to you is suitable for the Project;
(b) Product manuals and specification sheets should be referred to for Product specifications;
(c) Natural materials (including but not limited to natural stone, raw cut timber, wood grains and more) used in the Project:
(i) may change in appearance or dimension following exposure to use or climatic conditions and that this is normal for such materials; and
(ii) may vary and the Product purchased may not be the exact Product received unless otherwise specified, and
(d) Products purchased online may differ in person based on lighting, location and the screen the item is viewed on.
12. LIABILITY AND INDEMNITY
(a) Each party (First Party) is liable for and indemnifies the other party and that other party’s employees and agents (Indemnified Party) against any reasonable and quantifiable Loss or Claim suffered by the Indemnified Party in respect of any material breach of this Agreement by the First Party, subject to:
(i) The Indemnified Party taking reasonable steps to mitigate such Loss or Claim; and
(ii) The First Party’s liability being reduced proportionately to the extent that the Indemnified Party’s act or omission has contributed to the Loss or Claim.
(b) Subject to clause 10(a) and to the extent permitted by law, our liability to you for any Loss or Claim suffered by you in respect of any services supplied to you under this Agreement, including in respect of any failure to comply with any Consumer Guarantees, is limited to (at our election) resupplying the Services again or paying the cost of having the Services supplied again.
(c) Subject to clause 10(a), we are not liable for any Loss you may suffer in relation to the Services or this Agreement, where the Services are restricted or impacted by a Force Majeure Event.
(d) You are not liable for any Loss we suffer in relation to this Agreement, where your ability to perform your obligations under this Agreement is impacted by a Force Majeure Event.
(e) Neither party is liable to the other party for any kind of Consequential Loss arising out of or in connection with this Agreement.
13. CANCELLATION AND ENDING THE AGREEMENT
(a) The Proposal may be cancelled as follows (subject to clause 13(c) below):
(i) By us with written notice, where the provision of our Services and ability to complete the Project are impacted by a Force Majeure Event;
(ii) By you with written notice for ‘change of mind’, whereby you agree to pay the Administration Fee if requested by us in our discretion; or
(iii) By either party (Terminating Party) with written notice if the other party (Breaching Party) materially breaches this Agreement, and this cannot be fixed or if it can be fixed, the Breaching Party does not fix it within 14 days after the Terminating Party gives written notice of the material breach.
(b) Subject to clause 10(a), the parties agree that if the Proposal is cancelled before completion under clause 13(a)(i) (due to a Force Majeure Event):
(i) We will provide a refund to you on any Fees paid for Services not delivered to you (such amount which we will notify you of); and
(ii) We agree you may engage another interior designer or other professional to use the Final Developed IP supplied by us to you, in order to complete the Project.
(c) Subject to clause 10(a), the parties agree that if the Proposal is cancelled before completion under clause 13(a)(ii) or 13(a)(iii):
(i) Unless otherwise required by law, we reserve the right to retain the Fees for Services completed up to the date of cancellation;
(ii) We will provide you with a refund of the Fees for Services not yet completed up to the date of cancellation, less any Administration Fee (if applicable);
(iii) You must pay any outstanding portion of Total Costs (such amount which we will notify you of) as well as any other non-refundable costs we have incurred in relation to the Project; and
(iv) If you terminated the Proposal for ‘change of mind’ under clause 13(a)(ii), you agree to pay an Administration Fee, if requested by us in our sole discretion.
(d) If the Proposal is cancelled under clause 13(a), this Agreement will terminate.
14. GENERAL
(a) Capitalised words may be defined in the Definitions section, the body of these Terms of Service or in the attached Proposal.
(b) This Agreement will be governed by the laws of Western Australia, Australia. The parties agree that the courts of Western Australia, Australia (or where applicable, the Federal Court of Australia) will have exclusive jurisdiction of this Agreement.
(c) Unless expressly permitted in this Agreement, you must not assign or novate your rights and obligations under this Agreement to another person without our prior written consent.
(d) Any formal communication required under this Agreement must be in writing (email to suffice, except for any breach notices which must be hand delivered or sent by registered post).
(e) Each party agrees that it will not disclose the Confidential Information of the other party acquired in relation to this Agreement including our pricing without the party’s consent, except that the Confidential Information may be disclosed to a party’s representatives on a ‘need to know’ basis, to a party’s professional advisors and as required by law.
(f) If the whole or any part of this Agreement is void, unenforceable or illegal, it will be severed, and the remainder of this Agreement will continue in full.
(g) The following clauses will survive the conclusion of this Agreement: 3, 4, 5, 7, 8, 9, 10, 11, 12, 13(b), 13(c), 14.
15. DEFINITIONS AND INTERPRETATION
15.1 Definitions
(a) Administration Fee means a charge of up to 30% of the balance of unpaid Fees that would have otherwise been charged to you if the Project was not cancelled (such charge which is a genuine pre-estimate of Loss suffered by us in relation to the cancellation of the Project and covers Loss relating to inter alia the rescheduling of human resources, cancelling suppliers, loss of income and bringing forward other clients’ projects).
(b) Australian Consumer Law means Competition and Consumer Act 2010 (Cth) Schedule 2.
(c) Claim means any allegation, debt, cause of action, liability, claim, proceeding, suit or demand of any nature, whether present or future, fixed or unascertained, actual or contingent, at law, in equity, under statute or otherwise.
(d) Confidential Information means any information belonging to or relating to a party to this Agreement howsoever acquired that is marked confidential or is by its nature confidential, including, without limitation, trade secrets, Intellectual Property, know-how, business and financial data, policies, plans, databases, client lists and reports but does not include information which is or becomes generally available in the public domain (other than through breach of this Agreement or an obligation of confidence).
(e) Consequential Loss means special, incidental, indirect or consequential damages, loss of revenue, anticipated savings, profits, goodwill, reputation, interest or business.
(f) Consumer has the same definition as in the Australian Consumer Law.
(g) Consumer Guarantees means the consumer guarantees specified in the Australian Consumer Law.
(h) Force Majeure Event means an act of God, war, natural disaster, pandemic, global financial crisis, financial crisis, injury or illness of our employees, contractors or officers, death in the family, government shutdown or similar restrictions, hacking, viruses, internet connectivity issues, power outages, operational changes to our business as well as other causes not reasonably within the control of the party affected.
(i) Intellectual Property (IP) means all rights in relation to trade marks, copyright, patent-able inventions and designs, whether existing now or in the future, and whether or not registered or register-able, and includes any rights subsisting in or relating to trade secrets, know how, techniques and confidential information.
(j) Interest means interest at the rate of 2% above the cash rate set down from time to time by the Reserve Bank of Australia, such interest which is capitalised monthly.
(k) Loss means loss, damage, liability, charge, expense, outgoing, payment or cost of any nature or kind, including all legal and other professional costs.
(l) Rate Card means our schedule of hourly rates and charges, as published from time to time, which at the time of the Commencement Date is set out in the Proposal.
15.2 Interpretation
In this Agreement, unless expressly stated:
(a) a word importing the singular includes the plural and vice versa;
(b) a word importing a gender includes other genders;
(c) a law is a reference to that law as amended, consolidated or replaced;
(d) this Agreement includes all schedules and attachments to it;
(e) a party to this Agreement includes its agents, personal representatives, successors and permitted assigns;
(f) a person, includes a natural person, partnership, joint venture, corporation, trust, governmental agency, association or other body corporate;
(g) a time, is a reference to the time in the State or Territory of the jurisdiction that governs this Agreement;
(h) $, is a reference to Australian dollars unless otherwise expressly stated; and
(i) the words ‘such as’ or ‘including’ are not used as words of limitation.