Design Agreement
This Agreement is between Aylin Rose Rust trading as Vie Interior Design ABN 65 989 139 831 (Vie Interior Design) and the Client.
IT IS AGREED AS FOLLOWS:
1 - ACCEPTANCE
This Agreement includes any schedules, annexures, and attachments relating to this Agreement that are provided with this Agreement, or separately, including the Design Proposal, which also form part of this Agreement. By proceeding with payment for the Services, the Client will be deemed to have read, understood, and accepted to be bound by the terms and conditions contained in this Agreement, and that this version is the sole requirement for this Agreement to be binding on the parties. The Client acknowledges and agrees that if they do not accept these terms and conditions, they must not proceed with the Services.
2 - DEFINITIONS
In this Agreement, unless expressed or implied to the contrary:
Additional Consultation means any consultation, other than the Initial Consultation, provided by Vie Interior Design on the request of the Client for the Fees provided in the Design Proposal or advised at the time of booking.
Additional Services means any Services provided to the Client that were not originally contemplated or indicated in the original Design Proposal and/or which were added to the Scope of Works during the course of or at the end of the Project.
Approved Purpose means the purpose specified in this Agreement.
Business means the business of Aylin Rose Rust trading as Vie Interior Design ABN 65 989 139 831 and includes any business carried on under any brand name associated with Vie Interior Design, or by any subsidiary or associated entity of Vie Interior Design.
Business Hours means 09:00 to 17:00, from Monday to Friday in New South Wales.
Client includes any person or organisation (or representative of any person or organisation) who is the named recipient of the Design Proposal.
Client Content means any content owned or held by the Client, which is relevant to the Services.
Client System means any computer or other technology system owned or operated by the Client, which is relevant to the Services.
Code of Conduct means the code of conduct accessible at https://www.vieinteriordesign.com.au.
Communication Policy means preferably emails during Business Hours only unless there is an urgent matter or emergency in which case Vie Interior Design will respond as soon as practicable.
Completion means the completion of all Services as contemplated by this Agreement.
Consultations means the Initial Consultation and as applicable any Additional Consultations.
Consultation Fees means the Fees payable for the Consultations as indicated or provided under this Agreement and any additional Fees for time provided for any Consultation in excess of the applicable prescribed and/or paid time periods, as invoiced.
Deposit means the percentage amount of the total estimated Fees for the Services as stipulated in the Design Proposal or invoice issued, and/or any other deposit as applicable for orders or purchases to be made on behalf of the Client that may be required by Vie Interior Design.
Design Material means all material that exists at the beginning of the Services, in whatever form, including but not limited to documents, specifications, reports, products, information, data, drawings, renders, specs, samples, mood boards, graphics, images, video or sound recordings, and material that is created, written, which is provided in connection with, or otherwise brought into existence by or on behalf of Vie Interior Design during the provision of the Services, including the Design Work.
Design Proposal means the document sent to the Client outlining the details of the Project.
Design Work means all design work including drawings with respect to the Services referred to in clause 3.2.
Direction includes agreement, approval, authorisation, certificate, decision, demand, determination, explanation, instruction, notice, order, permission, rejection, request, and requirement.
Fees means the amounts paid or payable by the Client for the Services as provided in the Design Proposal and any invoices subsequently issued, which may be fixed and/or based on Hourly Rate/s.
Hourly Rate means the applicable rate per hour charged for time billed services pursuant to the work undertaken and, if applicable, the person carrying out the work, as indicated in the Design Proposal or invoice issued.
Initial Consultation means the initial consultation between the Client and Vie Interior Design of up to ninety (90) minutes (or such other time agreed by Vie Interior Design) for the Fee advised by Vie Interior Design at the time of booking.
Project means the project which relates to the Client and the Services as outlined in the Design Proposal.
Project Co-ordinating Services means the co-ordinating services for the Project as provided in the Design Proposal or otherwise agreed with the Client which may include coordinating and arranging the purchase of items such as fixtures, fittings, finishes, lighting, and flooring; visiting suppliers to pick up products or samples with the Client or on the Client’s behalf; performing Project Site visits to monitor design intent and progress, and to assist with resolving issues as they arise, as required by the Client; holding or attending formal meetings with contractors and tradespersons to resolve design issues, where required and arranged by the Client; and managing administration (emails, phone calls and travel) and meetings with the Client as required, to the extent Vie Interior Design is permitted by law.
Project Quotes means any estimated costs of the Project outlined in the Design Proposal.
Project Site means the property defined in the Design Proposal.
Project Timeline means the estimated timeline and milestones for completing the Project, if any.
Scope of Works means the scope of services to be performed by Vie Interior Design under this Agreement, as described in the Design Proposal.
Services means the interior design, decorating and furnishing and styling services specified for the Project in the Design Proposal (as may be varied by the parties), which may include Consultations, colour consulting and colour schemes, concept design drawings, mood boards, specification sheets, 2D and/or 3D drawings/renderings, elevations, custom furniture design, cabinetry and joinery concept design, selection of furniture, fabrics, hard finishes, fixtures, and lighting, guided shopping trips, in-home styling, and ancillary services.
Travel Fees means the Fees (if any) payable for travel required for the Project, as set out in the Design Proposal where applicable.
Work or Works means any installation, building, construction, or other specialist works that have flowed from Design Work, as referred to in clause 3.2.
3 - THE SERVICES
1. Provision of Services
(a) The Services are delivered in accordance with the design process set out in the Design Proposal which may in addition to delivery in person include delivery via telephone, email and digital platforms.
(b) Subject to this Agreement, Vie Interior Design will endeavour to provide all Services in accordance with Vie Interior Design’s Code of Conduct.
(c) Vie Interior Design will provide the Services pursuant to Vie Interior Design’s Business and do all things reasonably required to ensure that the Services are performed with due care, skill and diligence, in a professional and ethical manner, within the scope of their expertise, and to the Client’s reasonable satisfaction.
(d) Vie Interior Design may provide Consultations and/or Project Co-ordinating Services as part of the Project for additional Fees as provided in the Design Proposal unless or except to the extent they are included in the Scope of Works for agreed fixed Fees.
(e) The Client agrees, where Vie Interior Design is engaged for Additional Services or Additional Consultations, additional Fees as provided in the Design Proposal shall apply, and the Client may be invoiced separately for these Fees.
(f) Vie Interior Design will do their best to complete the Services in accordance with the Project Timeline, however, the Client acknowledges that Project deadlines, and hence Completion may be subject to the vagaries of the marketplace and the performance of third parties.
(g) Where applicable to Services, the Client authorises Vie Interior Design to install permanent fixings to hang artwork and mirrors or other items at the Project Site, which will remain after removal of the artwork, mirrors and/or items.
(h) Vie Interior Design will provide and maintain, as far as is reasonably practicable and where applicable, a safe working environment and safe systems of work in accordance with the requirements set out in the Work Health and Safety Act 2011 (Cth) and all applicable State and Territory work, health and safety laws.
2. Design Work
(a)The Client acknowledges and agrees that in accordance with Vie Interior Design’s design process:
(i) they are entitled to two (2) revisions of the Design Work (unless otherwise stipulated in the Design Proposal), including concept drawings; and
(ii) any further revisions or changes required to be made to the Design Work (including product re-selections) will result in additional Fees as indicated in the Design Proposal or invoice issued.
(b) The Client acknowledges and agrees that all sketches, illustrations and drawings created or provided by Vie Interior Design are conceptual in nature, intended to set forth design intent, and are not to be used for engineering or construction purposes. All technical drawings with accurate check-measures, dimensions and size designations given are subject to verification and specifications as provided by licenced architects, building designers, draftspersons, licensed surveyors, engineers, cabinet-makers, builders and/or other qualified tradespersons, and Vie Interior Design makes no guarantees or warranties in relation to any technical drawings, Works or any finished construction project.
(c) Vie Interior Design may outsource and facilitate all or part of the architectural or drafting services on behalf of the Client to accompany Vie Interior Design’s interior design plans and schedules if specified in the Design Proposal. Vie Interior Design will endeavour to cooperate and work with any architects, draftspersons or other third parties retained by or on behalf of the Client. Although Vie Interior Design will take any designs or plans prepared by such third parties into consideration when preparing the Design Work for the Services, the Client is responsible for final plans prepared by all third parties including checking them prior to signing off, and for ensuring the Design Work is compatible with such plans and any Works.
(d) Any assessment or approval of issued plans, residential building approvals, waste management plans, survey reports, council reports, planning controls, council approvals, DA or CDC applications or any planning instruments, or lodging of application documentation required is the responsibility of the Client unless specified in the Design Proposal.
3. Cabinetry and Joinery Services
(a) Vie Interior Design will provide the cabinetry and joinery services (if any) specified in the Design Proposal. If cabinetry services are provided, they are limited to conceptual and aesthetic advice on furniture materials, finishes, colours and/or fabrics and concept design drawings and do not include technical drawings, manufacturing, installing, refurbishing, restoring or repairing cabinets or joinery, or any other specialist skills or trades outside of the scope of Vie Interior Design’s expertise or for which a specialist licence or registration is required.
(b) Unless otherwise agreed by Vie Interior Design, the Client is responsible for obtaining any design or technical drawings that are required for cabinetry from a cabinet maker or joiner or other licensed expert, ensuring that all cabinetry and joinery and other installations are installed by a licensed installer, and that all appliances, fixtures, fittings, finishes and specifications are checked by a licensed joiner after all applicable room sizes at the Project Site are confirmed and the Design Work is approved and signed off.
(c) The Client acknowledges and agrees that upon their acceptance of any cabinetry and joinery production drawings there will be no further changes to the drawings and neither the joiner nor Vie Interior Design will accept any liability for any adaptations or changes required or made by the Client to the finished product.
4. Third-Party Contractors and Suppliers
(a) The Client acknowledges and agrees all representations, recommendations and referrals made by Vie Interior Design are made in good faith, but that Vie Interior Design makes no warranties as to the suitability or reliability of third-party suppliers and contractors or guarantees as to the outcome or results of the Services.
(b) The Client acknowledges Vie Interior Design is not responsible for the compliance, safety, supervision, daily direction, control, quality, or outcome of the work of any third-party supplier, contractor or sub-contractor the Client engages to complete the Works, regardless of whether Vie Interior Design has referred, recommended or engaged the supplier, contractor or sub-contractor on behalf of the Client.
(c) The Client agrees that where building or construction Work is required for the Services, they must enter into a contract that is independent of this Agreement and acknowledges Vie Interior Design is not responsible nor can be held liable for any damages or loss incurred by the Client arising out of or associated with that contract.
5. Delays, Variations and Faults
(a) The Client acknowledges and agrees that they are fully responsible for all errors, defects, or faults (and rectification thereof) after signing off on, sampling and approving the Design Material and that Vie Interior Design shall be held harmless for relying on the accuracy of information provided by the Client in preparing the Design Material, including any incorrect measurements, and for change of mind or incorrect choices by the Client.
(b) Within forty-eight (48) hours of it becoming evident to Vie Interior Design that anything beyond their control may result in delays to the Project and/or Completion, including an act or omission of the Client, consultants, other contractors or agents, a force majeure event, or the supply of erroneous information by the Client, Vie Interior Design agrees to notify the Client of the extent of the likely delay and the costs and expenses associated with that delay.
(c) If the Client proposes a variation to the current Scope of Works or is deemed to have affected a variation, as determined by Vie Interior Design, the Client will be advised by Vie Interior Design whether the proposed variation can be reasonably implemented, and the anticipated effect the proposed variation will have on the Project, including on any Project Quote, Fees and Project Timeline. The Client agrees that where the proposed variation is proceeded with or otherwise effected, as applicable, the Client will accept and agree to any associated changes in costs and expenses (including Fees) and/or changes to the Project Timeline and/or delay in any Works.
6. Completion
(a) Within forty-eight (48) hours of receiving notification from Vie Interior Design that the Services are complete, the Client shall inspect the Project Site and inform Vie Interior Design of any issues or items outstanding.
(b) Where Vie Interior Design provides the Client with any final choices required to be made for Completion, the Client shall be required to confirm their decisions within the time frame advised by Vie Interior Design or set out in the Design Proposal. The Client acknowledges and agrees that any delays in Completion due to the Client may result in increased Fees and that Vie Interior Design may issue an invoice and provide the final documentation, with any additional modifications required by the Client to be done following payment of such invoice.
(c) The Client acknowledges that where any issues in connection with or ancillary to the Services are the result of third-party Works, such issues shall be the responsibility of the relevant third-party contractor, and Completion may therefore occur before these issues are rectified.
4 - CLIENT OBLIGATIONS
The Client agrees to:
(a) comply with all applicable laws and regulations, including obtaining the relevant insurance, permits, licences, and any approvals required for the provision of the Services;
(b) provide a thorough brief, including details of the Client’s budget and deadlines, accurate measurements, dimensions, or any other information as required;
(c) respect Vie Interior Design’s Communication Policy, co-operate with Vie Interior Design, provide clear and reasonable Direction, instruction, and guidance, and review and approve the Design Material and any samples, finishes or fittings, check plans and schedules, and respond to emails in a timely manner;
(d) double check and otherwise verify all measurements the Client provides to Vie Interior Design; and
(e) provide access to the Client System and the Client’s Project Site as reasonably required by Vie Interior Design to provide the Services.
5 - FURNITURE, FINISHES AND ACCESSORIES
1. Specifications and Ordering
(a) Vie Interior Design will provide samples of finishes where possible, however due to the variation of some products, these samples are indicative only.
(b) The Client acknowledges that:
(i) any product images on schedules provided by Vie Interior Design are a guide and indicative only, and that they may not be a true representation of the specified product; and
(ii) changes in all materials, such as wood, lacquer, glass, fabric, or leather may occur over time, therefore there may be variations in tones or slight differences in their colour and/or appearance in the completed Project or any Works.
(c) The Client acknowledges that unless included in the Scope of Works with agreed fixed Fees, showroom visits are an optional extra service if the Client requests to view any goods prior to order or purchase, and that depending on the supplier some products may only be able to be viewed digitally.
(d) The Client acknowledges that any requests for further revisions in product selection will incur additional fees, in accordance with this Agreement.
(e) Vie Interior Design may obtain quotes for products from Vie Interior Design’s trade suppliers on behalf of the Client. Quotes for products are valid for the stipulated time and are based on quantities outlined. The Client acknowledges any change to products or delays in processing the order may affect pricing and products may need to be re-quoted or revised.
(f) The Client acknowledges and agrees Vie Interior Design is entitled to charge a commission on all outsourced services or items sourced by Vie Interior Design, on the cost of trade prices, on all purchases as specified in the Project Quote and any subsequent quotes, as well as fees for any delivery, freight, or storage, whether included in the original quote or provided subsequently.
(g) The Client acknowledges Vie Interior Design is not required to pass on, share or disclose any trade discounts to the Client, and Vie Interior Design is entitled to do so at their sole discretion.
(h) Vie Interior Design may provide the Client with a shopping list of products which specifies products for purchase from Vie Interior Design’s trade suppliers. In preparing the shopping list, Vie Interior Design will take all reasonable steps to specify products that they believe are available at the time of Completion but does not guarantee the availability of any products in the shopping list.
(i) The Client agrees to accept all risk and responsibility for the products upon placement of any order, and that any orders that are not fulfilled are the responsibility of the supplier.
2. Purchases
(a) The Client acknowledges and agrees that Vie Interior Design will directly place orders on behalf of the Client for all products specified in the shopping list for purchase from Vie Interior Design’s trade suppliers, unless otherwise stated in the Design Proposal. The Client agrees that they are not otherwise permitted to purchase goods which form part of the Project that are specified in the shopping list or otherwise to be purchased from Vie Interior Design’s trade suppliers and acknowledges that a breach of this clause 5.2(a) shall be deemed to effect a variation under clause 3.5(c) with additional Fees payable.
(b) All orders placed by Vie Interior Design with its trade suppliers will be confirmed by the receipt of the trade supplier’s invoice for payment which binds the Client to the terms of the order.
(c) The Client is responsible for placing all other orders for purchases of goods listed in the shopping list provided by Vie Interior Design.
(d) Vie Interior Design will not commit to the purchase of any goods until the Client has paid to Vie Interior Design the requisite upfront payment or deposit required for the purchase.
(e) The Client agrees they are responsible for the costs and payments of all goods sourced from third-party suppliers and contractors by Vie Interior Design on their behalf, including invoices issued directly by the supplier.
(f) The Client acknowledges that a failure to pay the deposits or invoices for the purchase of goods may cause delay to the Project Timeline and Completion and/or have other consequences, for which Vie Interior Design will not be liable.
(g) Warranties on all goods and services provided by third parties are determined by the supplier of the goods or services, or in accordance with the standard statutory warranties applicable.
(h) The Client is responsible for requesting any care instructions for goods ordered by Vie Interior Design on their behalf that have been omitted within twenty-four (24) hours of delivery of the goods and is liable for all damage that is inconsistent with proper care instructions.
(i) The Client acknowledges and agrees Vie Interior Design is not liable or responsible for any costs, expenses, loss or claim incurred by the Client as a result of or in connection with any third-party supplier becoming insolvent, bankrupt or going into liquidation, including any monies paid to them by the Client or by Vie Interior Design on behalf of the Client.
3. Cancellations, Repairs, Returns and Refunds
(a) The Client agrees that, subject to clause 5.3(b), any goods which have been ordered and delivered, including custom furniture and cabinetry, can only be returned, exchanged, or refunded in accordance with the terms of the supplier, which may be subject to re-stocking fees, handling fees, loss of deposit amounts or other losses, for which Vie Interior Design is not liable.
(b) Custom and made to order goods which require on-site sighting of samples and sign off by the Client ahead of purchase are not eligible for cancellation or return.
(c) Where goods ordered by Vie Interior Design are faulty or damaged, the Client must notify Vie Interior Design within twenty-four (24) hours, via email with images where possible. Vie Interior Design will do all things necessary and reasonably required to assist the Client, but the repair, replacement or refund of damaged goods is at the sole discretion of the supplier and any terms of warranty and Vie Interior Design cannot be held liable in these circumstances.
(d) The Client acknowledges services provided by Vie Interior Design in relation to any requests for returns or cancellations by the Client may incur additional Fees.
4. Lead Times
All lead times are listed at the time of presenting the quotation and are as accurate as possible. Whilst Vie Interior Design endeavours to meet anticipated lead times, Vie Interior Design will not be responsible for changes in lead times where delays occur due to circumstances outside their control or due to delays in placing orders or availability.
5. Delivery, Storage, and Installation
(a) The Client agrees Vie Interior Design is entitled to charge Fees for delivery, freight and storage where provided in the Design Proposal and pass on any duties or taxes on imported goods.
(b) Vie Interior Design will only arrange for direct delivery to the Project Site of items ordered from trade suppliers by Vie Interior Design on behalf of the Client, unless otherwise agreed.
(c) Vie Interior Design may agree to store goods ordered from and delivered by trade suppliers to Vie Interior Design until delivery to the Project Site is arranged.
(d) Access limitations must be advised by the Client prior to the time of placing the order as deliveries that cannot take place due to access limitations are the responsibility of the Client. The Client acknowledges that if delivery is not possible at all due to access limitations (including if a goods lift is too small or stair access is too tight), the goods will be taken back to the supplier and may incur a return-to-warehouse delivery charge and/or a restocking fee.
(e) Unless requested or noted, delivery will be quoted assuming ground floor site location or accessibility via a suitable goods lift. It is the responsibility of the Client to ensure that goods lifts are ready to take delivery at the agreed delivery time.
(f) The Client acknowledges that if they are either not ready to accept the goods or delay the receipt of the goods as per the scheduled delivery and installation dates, there may be additional costs incurred such as a return-to-warehouse delivery charge and a re-delivery charge, with charges dependent on the supplier.
6 - PAYMENT
1. Fees and Expenses
(a) The Client agrees to pay Vie Interior Design:
(i) the Deposit for the Project as specified in the Design Proposal, in accordance with clause 6.1(b);
(ii) the Consultation Fees, any Travel Fees and all other Fees with respect to the Services and any Additional Services; and
(iii) all other amounts payable for goods or other items,
as provided under this Agreement and invoiced under clause 6.3.
(b) The Client will pay Vie Interior Design the Deposit referred to in clause 6.1(a)(i) within seven (7) days of executing this Agreement (or such other time agreed by Vie Interior Design) and all other Deposit amounts required as provided in the Design Proposal or any subsequent invoice issued.
(c) The Client agrees that where Services are charged on a time basis, the applicable Hourly Rate applies unless otherwise specified in the Design Proposal or advised prior to the Services by Vie Interior Design.
(d) The Client acknowledges that amounts outlined in the Design Proposal, unless specified as a fixed cost, are estimates only and may differ from the final amount invoiced to the Client. If further services or further time is required to complete the Services, Vie Interior Design will notify the Client and provide them with an update of the Fees.
(e) The Client will pay or reimburse Vie Interior Design for all out-of-pocket expenses incurred from carrying out the Services, with prior consent sought for expenses in excess of two hundred dollars ($200) (individually or in the aggregate, as applicable).
(f) Payments not received by the due date will result in work cessation. Vie Interior Design reserves the right to refuse Completion or delivery of any Services or work until past due balances are paid. The Design Material may be retained as security until all just claims against the Client are satisfied.
2. Goods and Services Tax
(a) Unless otherwise specified, all Fees including trade commissions and any other ancillary expenses are exclusive of GST, and where GST is applicable, it will be applied as indicated in the invoice.
(b) If GST is payable in respect of a service or product provided under or in relation to this Agreement, the Client must pay to Vie Interior Design an amount equal to the GST payable on the service or product (GST Amount). The GST Amount is payable by the Client in addition to, and at the same time as, any consideration for the service or product.
3. Invoices
(a) Invoices shall be issued at the times, stages or milestones or other basis referred to in the Design Proposal or otherwise determined by Vie Interior Design and may constitute payment of Fees and other amounts in advance or arrears.
(b) The Client agrees to pay all correctly rendered invoices issued by Vie Interior Design by the due date set out in the invoice, including GST where applicable, and all subsequent invoices, inclusive of any trade commission due or expenses incurred at that stage or time, by EFT direct deposit to Vie Interior Design’s bank account and/or as otherwise set out in the invoice.
(c) If the Client disputes any invoice issued under this clause 6.3, the Client must notify Vie Interior Design of the amount in dispute and the reason for the dispute by the invoice due date and pay any amounts not in dispute until the dispute is resolved.
(d) Vie Interior Design is entitled to charge interest on all amounts outstanding from the invoice due date until the date payment is made at the rate equivalent to the Cash Rate Target of the Reserve Bank of Australia as at the date of the invoice, and after sixty (60) days to increase such interest rate by up to five percent (5%). Vie Interior Design is also entitled to charge administration Fees for Vie Interior Design’s time in seeking payment of outstanding amounts and to take action for recovery of the debt and to claim costs.
4. Returns and Refunds
Vie Interior Design reserves the right to refuse or grant refunds for the Services, in accordance with the Competition and Consumer Act 2010 (Cth). Any requests by the Client for refunds must be detailed in writing and will only be considered when options for remedies or replacements have been exhausted.
7 - CONFIDENTIAL INFORMATION AND PRIVACY
1. Obligations with Respect to Confidential Information
A recipient of confidential information:
(a) may use confidential information of the discloser only for the purposes of this Agreement;
(b) must keep confidential all confidential information of the discloser except:
(i) for disclosure permitted under this clause 7; and
(ii) to the extent (if any) the recipient is required by law to disclose such confidential information; and
(c) must destroy or return all confidential information immediately upon request.
2. Privacy
Vie Interior Design agrees to comply with the Privacy Act 1988 (Cth), all other applicable privacy laws, and such other data protection laws as may be in force from time to time which regulate the collection, storage, use, and disclosure of information that can identify individuals or make them reasonably identifiable (Personal Information), in relation to all Personal Information of the Client collected by Vie Interior Design, to the extent that Vie Interior Design is legally obligated to comply with these laws.
8 - INTELLECTUAL PROPERTY
1. Ownership
(a) The Client acknowledges Vie Interior Design owns all intellectual property rights in the Design Material.
(b) Vie Interior Design grants the Client a royalty-free, revocable, worldwide, non-exclusive licence to use the Design Material strictly for the Approved Purpose and Project, and without the right to grant a sub-licence or assign the licence or re-sell, share or commercially exploit the Design Material.
(c) The Client will attribute Vie Interior Design as the correct author of the Design Material.
2. Media Consent and Releases
The Client hereby acknowledges and agrees:
(a) to authorise access for Vie Interior Design to the Project Site during and upon Completion of the Project to document the Design Work;
(b) Vie Interior Design is authorised to publish photographs or reviews of the Design Work, for use in print, online and digital, publications, platforms and mediums for the purpose of marketing and promotion, and to release and hold harmless Vie Interior Design from any reasonable expectation of privacy or confidentiality (regardless if names and specific locations have been withheld) or from liability for any claims in connection with the above said and understands there is no financial compensation of any type; and
(c) Vie Interior Design is responsible for any costs related to the photography and agrees to credit any relevant third parties as required.
3. Reviews and Testimonials
(a) The Client agrees that prior to publishing a review online regarding Vie Interior Design and the Business or Services they will consider the potential implications under the Competition and Consumer Act 2010 (Cth) and the Defamation Act 2005 (NSW) of making false and/or misleading statements and the potential for a claim for damages and other remedies where a person’s reputation has been harmed by the publication of defamatory matter.
(b) The Client acknowledges they will be prohibited from publishing a review on any public forum if this Agreement has been terminated for breach, and that any disputes or feedback will be directly raised with Vie Interior Design and may be subject to the obligations of confidentiality under clause 7.
9 - LIABILITY
1. Total Liability
To the fullest extent permitted by law (and to the extent permitted under Australian Consumer Law), the total liability of Vie Interior Design under or in connection with this Agreement in respect of all claims (if any) is limited to the Fees paid or payable for the Services and in any event, will never exceed the available proceeds of the insurance coverage of Vie Interior Design (as varied from time to time). Notwithstanding, nothing in this Agreement is intended to limit any Australian Consumer Law guarantees or warranties that may apply to the Services and that cannot be excluded.
2. Consequential Loss
In no case shall Vie Interior Design, their officers, employees, affiliates, agents, contractors, or licensors be liable for any consequential loss arising from the Client’s failure to provide Client Content or approve the Design Material within a reasonable time, or failure to use any of the Services or for any other claim related in any way to the Client’s use of or reliance on the Services or the Design Material, or digital platforms and/or content, or designs or drawings of Vie Interior Design, including, but not limited to any errors or omissions in any content, or any loss or damage of any kind incurred as a result of the use of any content posted, transmitted, or otherwise made available via the Services.
3. Indemnity
The Client indemnifies and must keep indemnified Vie Interior Design against all claims and losses suffered by Vie Interior Design arising out of any breach of this Agreement by the Client, any act or omission of the Client, and any breach of a law by the Client, except to the extent the claim or loss is directly caused or contributed to by a reckless or negligent act or omission of Vie Interior Design.
4. Warranty and Guaranty
The Client represents and warrants that all the information, instructions, and representations they have provided for the purposes of this Agreement are true, correct, accurate, current, and complete.
10 - TERMINATION
1. Cancellations of Consultations
The Client agrees that no refunds are provided for cancelled or missed Consultations and that if they cancel any Consultation within twenty-four (24) hours of the scheduled appointment time, the full amount of the Fees paid or payable for such Consultation may be retained or invoiced (as applicable) by Vie Interior Design in its sole discretion.
2. Termination on Notice
(a) Either Party may terminate this Agreement at any time by giving thirty (30) days written notice of termination.
(b) If the Client gives notice under this clause 10.2, Vie Interior Design will retain the Deposit and the Client agrees to pay any invoice for payment of any outstanding Fees, expenses and amounts owing for and with respect to work completed up to and including the date of termination and any additional Fees as stipulated by the terms of this Agreement.
(c) If Vie Interior Design terminates this Agreement, the Client shall only be obligated to pay outstanding Fees, expenses and amounts owing for the work completed up to and including the date of termination and any additional Fees as stipulated by the terms of this Agreement.
(d) If the Project is paused for more than thirty (30) days due to lack of clear communication from the Client or where Vie Interior Design has made two or more unsuccessful communication attempts, Vie Interior Design may at their sole discretion immediately terminate the Agreement and shall be entitled to retain the Deposit and the Client agrees to pay any outstanding Fees or expenses owing for the work completed up to and including the date of termination, and any additional Fees and amounts owing.
3. Termination on Default
A party may terminate this Agreement, effective immediately with written notice if:
(a) the other party commits a material breach of this Agreement, and does not rectify that breach within seven (7) days;
(b) the other party commits a material breach of this Agreement that is incapable of rectification or remedy within seven (7) days;
(c) the other party is charged or convicted of a serious criminal offence, or any offence connected with theft, fraud, or deception; or
(d) a party is in jeopardy of becoming subject to any form of insolvency administration or ceases to carry on business.
4. Consequences of Termination
(a) If this Agreement is terminated the Client and Vie Interior Design will use their best endeavours to reach an agreement and settlement on the most appropriate and efficient way of concluding the remaining aspects of the Project.
(b) Vie Interior Design will not be liable for any losses, costs and/or expenses incurred or sustained by the Client as a result of termination of this Agreement.
(c) The termination or conclusion of this Agreement does not affect or effect any release of any accrued rights or remedies of a party in relation to events, acts, or omissions that occurred prior to the termination or conclusion of this Agreement.
(d) Upon termination of this Agreement for any reason or at any time, the Client must pay to any third party any amounts payable for or in connection with the Services provided up to the date of termination within thirty (30) days, and the parties must on request, immediately destroy or return to the other party all confidential information and intellectual property of the other party.
11 - DISPUTE RESOLUTION
The parties must use reasonable endeavours to resolve all disputes through negotiation. If the dispute cannot be resolved through negotiation between the parties within twenty-one (21) days of the dispute arising, either party may commence mediation or other proceedings.
12 - GENERAL
1. Severability
If any provision or part of this Agreement is void or unenforceable for any reason, then that provision or part will be severed from this Agreement and the rest of this Agreement shall be read as far as possible as if the severed provision or part had never existed.
2. Entire Agreement and Variation
The parties agree that this Agreement is the entire agreement between Vie Interior Design and the Client in respect of this arrangement and supersedes any other communication or understandings (whether written or oral) between Vie Interior Design and the Client in that regard. Any changes to this Agreement must be agreed in writing between Vie Interior Design and the Client prior to the changes coming into effect.
3. Governing Law
This Agreement is governed by, and all disputes relating to or arising in connection with this Agreement or the subject matter of this Agreement, shall be resolved in accordance with, the laws of the State of New South Wales, Australia, and the parties irrevocably agree to submit to the non-exclusive jurisdiction of the courts of New South Wales and the courts of appeal from those courts.
4. Survivorship
Clauses 1, 2, 7, 8, 9, this clause 12.4 and clause 12.5 survive any expiration or termination of this Agreement and will have effect for the benefit of the parties.
5. Precedence
In the event of any inconsistency or conflict between the documents comprising this Agreement, the order of precedence set out below shall apply to the extent of that inconsistency or conflict:
(a) the Design Proposal;
(b) the clauses of this Agreement;
(c) any schedules, annexures, and attachments relating to this Agreement that are provided with this Agreement, or separately.