TERMS & CONDITIONS

1. Definitions.

(a) “Agreement” means the agreement formed by these terms and conditions and the Quotation.

(b) “AHS” means Anita Zelda Radman (ABN 29 375 068 673) trading as Adelaide Home Staging.

(d) “Fees” means the fees for the Services, as listed in the Quotation.

(e) “Force Majeure Event” means any event beyond the reasonably control of AHS and includes acts of God, war, terrorism, epidemic, riots, embargoes, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation, fuel, energy, labour or materials.

(f) “GST” means goods and services tax.

(g) “Property” means the property whose address is shown as such in the Quotation.

(h) “Quotation” means the attached quotation issued by AHS to You.

(i) “Personnel” means employees, agents, consultants and contractors.

(j) “Services” means the property staging services and ancillary services to be provided in respect of the Property, as set out in the Quotation.

(k) “You” means the person whose name and address is shown in the Quotation as the recipient of the Services.

2. Acceptance.

You may enter into the Agreement by signing the Quotation or by otherwise signifying your acceptance of the Quotation to AHS, for example, by giving AHS instructions to proceed with the Services.

3. The Services.

(a) AHS will use all reasonable endeavours to provide the Services as stated in the Quotation at the times and places stated in the Quotation.

(b) Unless stated otherwise in the Quotation, the Services include transportation of the Design Elements to the Property and their installation as well as removal of the Design Elements from the property.

(c) You acknowledge that provision of the Services includes a degree of artistic judgment on the part of AHS and that the description of the Services and Design Elements in the Quotation is not intended to provide an exact description of the Design Elements or overall design to be used for provision of the Services. Final results and overall effect (including choice by AHS of any Design Elements actually used) may differ from that shown or described in the Quotation and will be subject to the judgment of AHS as well as the availability of the relevant Design Elements at the relevant times. You agree that AHS has full and sole discretion in the final choice of Design Elements and the overall design for the Services, provided that AHS must consider your reasonable input provided during the initial meeting to discuss the Services. You agree that you have no right to reject the Services due to any difference in opinion as to which Design Elements are ultimately used to provide the Services, their manner of placement within the Property or any other aspect. AHS reserves the right to decline Your request for inclusion of specific Design Elements and/or to amend the Fees as a condition of agreeing to such a request.

(d) AHS may modify or substitute any Design Elements used at any time during provision of the Services.

(e) Your requests for changes to any timings in the Quotation including any extensions or reduction to the period of time over which the Services are provided (including the period at which the Design Elements are located at the Property) are at AHS’ absolute discretion and are subject to any amended Fees being agreed (which may also include additional installation and removal Fees).

4. Exclusions from the Services.

(a) Unless stated otherwise in the Quotation, the Services do not include:

(i) any cleaning of the Property or any other location (whether before, during or after the provision of the Services);

(ii) any building, repair or gardening works;

(iii) attendance at open inspections or other events;

(iv) provision of security or ensuring that the Property is secure (including before and after installation and removal of Design Elements);

(v) installation or removal of Your furniture or installation or removal of anything else, other than Design Elements used in providing the Services;

(vi) meetings and calls with You or your representatives in excess of an initial discussion with You in respect of the Services, such initial discussion not to exceed 1 hour in total; and

(vii) any other exclusions stated in the Quotation.

(b) AHS has no obligation to provide any service which is excluded from the Services. If AHS chooses to include such an aspect in the Services, AHS may charge its prevailing Fees for services of a similar nature or, if there is no prevailing fee, a reasonable fee based on prevailing market rates.

5. Fees.

(a) All Fees are stated in Australian dollars and, unless expressed otherwise, are exclusive of GST. AHS may charge GST in addition to the stated Fees in accordance with prevailing laws.

(b) All Fees (including any up-front Fees) must be paid in full in accordance with the timing stated in the Quotation. If no timing for payment is stated in the Quotation, Fees are due to be paid within 7 days of the date of the invoice from AHS for those Fees.

(c) Fees are to be paid by bank transfer to the account of AHS whose details are set out in the Quotation. Any bank charges must be paid by You such that AHS receives the full amount of the Fees together with any required GST.

(d) Any amount due from You under this Agreement (including Fees) which has not been paid in full in accordance with this Agreement by the due date will attract interest of 5% for each whole calendar month that the amount (or part thereof) remain outstanding (non-compounding).

(e) Without limiting any other right or remedy, if any amount due from You under this Agreement is outstanding at any time, AHS may:

(i) suspend the Services until such time as the Fees (and any late interest) are paid; or

(ii) terminate the Services and/or this Agreement in whole or in part,

by giving notice to You.

Any costs incurred by You in respect of the suspension or termination of the Services are for your own account. You agree to immediately reimburse AHS for all costs and expenses reasonably incurred by AHS in connection with suspension or termination of the Services or this Agreement by AHS.

(f) In addition to any other right or remedy, AHS may charge a late fee for any period in which the Design Elements remain at the Property in excess of the period agreed in the Quotation (unless this failure is due to AHS or its Personnel).

(g) To the extent Services are provided for which no Fee in the Quotation is applicable, AHS may charge Fees according to its prevailing rates, or if there is no prevailing rate, a reasonable Fee.

6. The Property.

(a) You licence AHS and its Personnel to enter into and exit the Property as necessary for the purposes of carrying out the Services and any other activity contemplated under this Agreement (including to install and remove the Design Elements at such times as contemplated under this Agreement). You agree to ensure safe and easy access to the Property, free of obstructions, hindrances, other people and contractors and their equipment, and that the Property is at all times a safe, clean, secure, habitable and comfortable working environment for AHS and its Personnel.

(b) You agree to remove, at Your expense, any furniture and chattels from the Property prior to the time at which the Design Elements are to be installed and to ensure, at Your expense, that the Property is cleaned before and after installation of the Design Elements.

(c) Installation of some Design Elements (for example, pictures hung on a wall) may require alterations to the Property (for example, drilling of holes, installation of screws or hooks). You grant AHS and its Personnel permission to do these things as deemed necessary in the judgment of AHS based on the Design Elements being used. If contractors are used by AHS to do this, AHS may charge this at cost to You or, if specific fees for the contractor are stated in the Quotation, those fees. Further, you agree that unless expressly provided for in the Quotation, AHS has no responsibility to restore the Property to its previous state after removal of the Design Elements and any cost of restoring the property after removal of the Design Elements is to Your account.

(d) You agree to ensure, at Your expense, that the Property has all utilities (such as water, sewage and electricity) connected and functional during the period of this Agreement.

7. Display purposes only.

The Design Elements are for display purposes only. They are not to be used as ordinary items of furniture (and You must prevent them being used as such) or in any other manner.

8. Risk.

Risk in any Design Elements passes to you at the time they enter the boundary of the Property and passes back to AHS at the time AHS’ the Design Elements are removed from the Property by AHS or AHS’ Personnel. From the time the Design Elements first enter the boundary of the Property and until such time as they are back in the possession of AHS or AHS’ Personnel, You are a bailee of the Design Elements and must take care of the Design Elements and return them in accordance with this Agreement. You must not remove or allow the removal of the Design Elements from the Property (other than by AHS or AHS’ Personnel or as required under this Agreement). You agree to ensure that the Design Elements are at all times protected and preserved while risk in the Design Elements is with you. You are responsible for any loss (including theft), damage or dirtying of the Design Elements while they are at Your risk and you agree that AHS may replace, repair and/or clean the Design Elements at your expense if they are lost, damaged or dirtied while within your care (including by replacement of new Design Elements for old Design Elements). Nothing in this Agreement constitutes a lease of the Design Elements. You must not purport to assign, pledge, grant security over, hire out, take title to or otherwise deal with the Design Elements and must prevent any other person from purporting to do so while the Design Elements are in your possession. You must also ensure that the Design Elements are not included in any sale or rental of the Property and that all prospective purchasers, renters and their or Your agents are aware that the Design Elements are not included.

9. Return of Design Elements.

You must immediately return the Design Elements to the possession of AHS or AHS’ Personnel if this Agreement is terminated for any reason (or, if requested by AHS, immediately allow AHS’ Personnel to collect the Design Elements). This includes immediately granting and providing access to the Property for this purpose. The Design Elements must be in the same condition as when you received them. The cost of replacement or rectifying any damage or dirtying of the Design Elements while in your possession will be to your account and will be charged by AHS to You.

10. Insurance.

Without limiting the other obligations in this Agreement, You agree to have at all times current and sufficient home and contents insurance which covers the full replacement value of the Design Elements and any costs of replacement, repair, cleaning or other rectification. You agree that AHS (without having any obligation to do so) may call upon this insurance directly and that, if reasonably requested, you will have AHS listed as an additional insured on your home and contents insurance for the period in which the Design Elements will be present at the Property.

11. Liability.

(a) Notwithstanding any other provision of this Agreement, to the extent permissible by law:

(i) the maximum liability of AHS under this Agreement for all damages, losses, costs, and causes of actions from any and all claims (whether in contract, tort, including negligence, quasi-contract, statutory, or otherwise) shall not exceed the greater of: (i) AUD 1,000, or (ii) the total fees actually received by AHS from You under this Agreement during the 12 months prior to the cause of action arising; and

(ii) AHS shall not be liable for any indirect, special, incidental, consequential, or punitive damages, including but not limited to loss of profits, revenue, sale of the Property, or use, incurred by You or any third party, (whether in contract, tort, including negligence, quasi-contract, statutory or otherwise), even if You have been advised of the possibility of such damages.

(b) To the extent any of the limitations in this clause 11 (Liability) is not permissible by law, then the liability of AHS shall be limited to the maximum amount permissible by law.

(c) AHS may use subcontractors to provide the Services. AHS shall use reasonable endeavours to choose suitably qualified subcontractors. However, AHS shall not be liable for any loss or damage caused by such subcontractors, except to the extent the damage was directly caused by the subcontractors following AHS’ express instructions.

(d) You agree to fully indemnify AHS for any loss, liability, cost, expense or damage suffered by AHS in connection with this Agreement (including liability to AHS Personnel or third parties) which arises from any of the following:

(i) your negligence or default under or in connection with this Agreement;

(ii) any claim from any visitor or occupant of the Property; and

(iii) any aspect of the Property or its situation (including any health and safety matter).

12. Exclusion of implied warranties.

Except as expressly provided in this Agreement, to the fullest extent permitted by law, no warranties, guarantees or representations of any kind, either express or implied, statutory or otherwise, including warranties as to quality, performance, non-infringement, merchantability or fitness for a particular purpose, are provided by AHS. You acknowledge that you have relied solely on Your own examination and investigation in making the decision to acquire the Services and have not relied on any statement made by AHS or their representatives. AHS expressly disclaims all such warranties. Without limiting the foregoing, You acknowledge that AHS is not the manufacturer of the Design Elements and gives no warranties in respect of them. You acknowledge and agree that no outcome in respect of the Property (including in respect of sale of the Property, increase in sale price or rental yield) has been represented or is implied by this Agreement or anything done under or in connection with it.

13. Confidentiality.

You agree to keep the contents of this Agreement and any information disclosed under or in connection with it confidential, including any dispute resolution process or outcome.

14. Privacy.

Personal information disclosed by you to AHS will be treated in accordance with AHS’ privacy policy, which may be updated from time to time. In the event of a conflict, the provisions of this Agreement will prevail. AHS may collect personal information about you and your associates for the purposes of providing the Services to you and this may include disclosing this information as reasonably necessary to facilitate provision of the Services (for example, disclosing the address details of the Property to Personnel of AHS so that they can provide elements of the Services). The information AHS will collect includes your name and address details, the address details of the Property, photos and videos of the Property and information provided by you as part of the engagement to perform the Services. AHS may contact you to provide information about: (i) activities undertaken and other aspects in connection with this Agreement; (ii) other offerings of AHS; (iii) general updates on AHS’ business activities such as successfully completed jobs; and (iv) services offered by partner organisations which AHS believes you may be interested in. You may opt out of such notifications by notifying AHS that you wish to opt out. Please also see clause 15 (Portfolio).

15. Portfolio.

AHS my take photographs and videos of the Property and the Design Elements located at the Property for inclusion in AHS’ promotional material which may be published in any media, including online. Such material may state the general location (such as suburb) of the Property but will not give Your name or the exact address of the Property. You may opt out of this by notifying AHS that you wish to opt out. AHS regards the ability to promote itself as a valuable element of its remuneration for providing the Services. If you choose to opt out, this may, at AHS’ option, result in a surcharge (in the order of 2% to 5%) being added to Fees. Therefore, it is recommended that if you wish to opt out, you discuss this with AHS prior to commencement of the Services.

16. Intellectual Property.

Nothing in this Agreement transfers any intellectual property rights to You. The intellectual property rights in all deliverables produced by or on behalf of AHS are owned by AHS and such deliverables are not works for hire. You are granted a personal limited and revocable licence to use such deliverables solely for the purpose for which they are provided. Without limiting the foregoing, the intellectual property rights in any photos, videos and other material in respect of the Property and/or the Design Elements which are produced by or on behalf of AHS are owned by AHS or its Personnel as applicable. Unless express written permission is given by AHS, you have no rights in or licence to use such material. You grant AHS a perpetual royalty-free sub-licensable licence to use any material (including the intellectual property rights therein) provided by you to AHS for the purpose of providing the Services and also for inclusion in AHS’ portfolio and promotional material as contemplated under clause 15.

17. Term and termination.

(a) This Agreement expires at the time stated in the Quotation. If no time is stated, then this Agreement expires upon completion of the provision of the Services.

(b) AHS may terminate the Services and this Agreement without cause by giving 14 days notice to You. In such case, AHS will be entitled to any Fees or other amounts due for work performed up to the date of termination.

(c) AHS may terminate the Services and this Agreement for breach in the event that any amount due from you under this Agreement is not paid by the due date

(d) Either party may terminate this Agreement for breach in the event that the other party has breached its obligations under this agreement and the breach has not been remedied within 30 days of a notice requesting remedy.

(e) Termination or expiry of this agreement is without prejudice to any already accrued rights or obligations. Every clause which, by its nature is intended to survive expiry or termination of this Agreement does so, including all clauses relating to liability, risk and care and return of the Design Elements.

(f) If a cancellation Fee is stated in the Quotation, then you may cancel the Services by paying the cancellation Fee plus the Fees applicable for Services already provided under this Agreement. If no cancellation Fee is stated in the Quotation, You have no right to cancel the Services, however, if you purport to do so, AHS may (in its absolute discretion) choose to accept the cancellation, in which case AHS may charge you up to the full amount of any Fees in the Quotation for the original period of the Services plus a cancellation fee (not exceeding 10% of the original Fees) and an amount covering any other loss, cost, expense or damage suffered by AHS as a result of the cancellation (including any fees owed to AHS’ Personnel or third parties).

18. Force Majeure.

The obligations of AHS under this Agreement will be suspended to the extent that they are affected by a Force Majeure Event and will remain suspended for the duration of the delay caused by the Force Majeure Event. AHS shall resume performance of the affected obligations as soon as reasonably practicable after the Force Majeure Event has ceased or no longer causes AHS to be unable to comply with its obligations. Any deadlines or time schedules in respect of AHS’ obligations under this Agreement shall be automatically extended for a period equivalent to the time lost by reason of the Force Majeure Event.

19. Notices.

Either party may give a notice by sending it by email to the email address of the party stated in the Quotation or by sending it by registered post to the physical address stated in the Quotation.

20. Interpretation.

(a) In this Agreement, where an example is given of something, the example does not limit the scope of that thing.

(b) The word “including” or similar phrases are to be interpreted as “including without limitation”.

(c) In the event of an inconsistency between these terms and conditions and the Quotation, the Quotation will prevail to the extent of the inconsistency, except that clause 11 (Liability) will always prevail over anything inconsistent in this Agreement.

(d) In this Agreement, time is of the essence in respect of Your obligation to pay the Fees under clause 5 (Fees). Time is not of the essence in respect of other obligations.

21. Jurisdiction and dispute resolution.

(a) This Agreement is governed by the laws of South Australia.

(b) If You believe that any dispute has arisen under or in connection with this Agreement you must give AHS 14 days’ notice of the dispute prior to taking any enforcement action.

(c) AHS may require that any dispute which arises out of or in connection with this Agreement be submitted to mediation in accordance with the Mediation Rules of the Resolution Institute. If AHS does so, the dispute may not be submitted to the courts for resolution unless it remains unresolved more than 90 days after submission to mediation.

Subject to clause21(c), any dispute which arises out of or in connection with this Agreement shall be submitted to the courts of South Australia for resolution and the courts of South Australia