1Engagement

1.1 These Ts&Cs govern the supply of all services by DBD to Client, including all:

1. services to be provided by DBD to Client as described in the Quote given by or placed on DBD by Client, or any activity comprised in or forming part of those services (Services); and

2. future arrangements or Services delivered under an additional quote,

unless specified otherwise in that documentation, and will be incorporated into all dealings between the parties.

1.2 These Ts&Cs may be amended from time to time. If amended, they will apply to every offer to provide Services, order, quote or offer (Quote), agreed by the parties after written notice of the change has been provided to Client.

1.3 To the maximum extent permitted by law, these Ts&Cs supersede and exclude all prior and other discussions, dealings, representations (contractual or otherwise) and arrangements relating to the provision of Services by DBD including those relating to the performance of the Services or the results that ought to be expected from using the Services, including any Client terms and conditions.

2Scope of Works

2.1 Client agrees that on:

1. signing or electronically accepting a Quote, proposal or other document that refers to these Ts&Cs;

2. paying any money to DBD, including, but not limited to, the Deposit; or

3. their willing participation through oral, written or electronic communication,

(Acceptance), the Agreement will govern the provision of all Services by DBD to Client (including all future Quotes given by or placed on DBD) and accepted by it.

2.2 DBD will not provide any Services unless they are included in the Quote. All Quotes expire 30 days after the date they are issued to Client unless accepted or extended in writing by DBD. All prices quoted by DBD are based on the taxes, duties and government imposed charges applicable at the time of the Quote. Should those taxes, duties or government imposed charges vary from the date of the Quote to the date of the Invoice, Client will also be liable to DBD for the difference.

3Supply and Timing

3.1 DBD will provide Client with the Services as agreed between the parties, and will exercise all reasonable care, skill and ability when performing its obligations under the Agreement, as modified from time to time.

3.2 Where there is any inconsistency between the Quote and the Ts&Cs, the Quote will prevail to the extent of that inconsistency.

3.3 DBD may engage a subcontractor to perform any of the Services. Notwithstanding the engagement of any subcontractor, DBD will remain primarily liable for the fulfilment of all of its obligations under the Agreement. To the maximum extent permitted by law any subcontractor’s liability for breach is limited at DBD’s option to the re-supply of a replacement or equivalent Services, the rectification of the Services and the payment of the costs of having the Services replaced or rectified by DBD.

4Ordering and Cancellation

4.1 All Quotes are deemed to be an offer by Client to engage DBD pursuant to the Agreement.

4.2 DBD has the sole discretion to accept or reject any Quote or any variation, modification or cancellation of the Agreement requested by Client.

4.3 Where a cancellation request is accepted by DBD (Cancellation Date) and that cancellation request was provided to DBD:

1. more than 7 days before the Styling Installation Date, Client is not liable to pay any Fees or costs for the cancellation;

2. 7 days or less, but more than 1 day, before the Styling Installation Date, Client is liable to pay the Administration Fee;

3. 1 day or less before the Styling Installation Date, and before installation has commenced, Client is liable to pay 50% of the Styling Fees; and

4. on or after the Styling Installation Date, or at any time after installation has commenced, Client is liable to pay 100% of the Styling Fees as specified in the Quote and for all Trade Services completed to the Cancellation Date.

4.4 The amounts payable under clause 4.3 are the total amount payable by Client on cancellation, other than:

1. Trade Services already performed to the Cancellation Date; and

2. any amount DBD has irrevocably committed to a third party in connection with the Quote before the Cancellation Date, including materials ordered and non refundable subcontractor charges, evidence of which DBD will provide to Client on request.

4.5 DBD may retain amounts already paid by Client up to the total amount payable under clauses 4.3 and 4.4. DBD will refund any balance to Client within 14 days of the Cancellation Date.

4.6 Where the Services ordered by Client are not available for any reason, DBD will notify Client and give Client the option to either wait until the Services are available or cancel the Agreement and receive a full refund within 30 days in full and final satisfaction of its rights.

5Variations

5.1 Client may request DBD in writing to add, omit, amend, supplement or replace any Quote or any Services to be provided under the Agreement (Amendment Request).

5.2 On receipt of an Amendment Request, DBD may, at its sole discretion (which cannot be unreasonably withheld):

1. agree to the Amendment Request in writing, whereupon the Agreement will be considered amended accordingly;

2. reject the Amendment Request whereupon the Agreement will continue as though the Amendment Request had not been made; or

3. advise Client of a change in price arising as a consequence of the Amendment Request (Price Change Notification).

5.3 Within 7 days of receipt of a Price Change Notification, Client may, at its sole discretion:

1. reject the Price Change Notification in writing, whereupon the Agreement will continue as though the Amendment Request had not been made;

2. agree to the Price Change Notification in writing which on DBD’s receipt will amend the Agreement accordingly; or

3. do nothing, in which case on the expiration of the 7 day period, Client will be deemed to have accepted the Price Change Notification and the Agreement will be amended accordingly.

6Prices and Access

6.1 DBD’s fees for providing the Services (Fees) are specified in the Quote.

6.2 DBD will use reasonable endeavours to supply Services in accordance with the Quote.

6.3 Client must give DBD access to the Site Address in order to perform the Services and any Defect rectification services. In the event Client does not provide, or procure, access to the Site Address to DBD, Client will pay for any out-of-pocket costs incurred by DBD (including fees for any re-attendance).

6.4 Client is responsible to ensure that the Site Address specified is correct and access and use of it complies with the relevant occupational health and safety regulations. Shipments of goods that are undeliverable due to incorrect or incomplete addresses may be subject to re-delivery and storage costs payable by Client at DBD’s discretion.

6.5 DBD reserves the right to access, and Client will procure access to, the Site Address to permit DBD (or its agent) to collect any and all Equipment and materials used by DBD to conduct the Services prior to the end of the Agreement.

6.6 Where Client specifically requests DBD to take extra measures outside the usual requirements in the Agreement, DBD has the right to pass on and charge for any out-of-pocket costs incurred plus the Administration Fee.

7Lease of Equipment

7.1 Lease

1. Where the Quote specifies Client’s lease or hire of any Equipment from DBD, the parties acknowledge and agree the terms of that lease or hire will be as specified in this clause 7.

2. DBD agrees to lease the Equipment to Client in consideration of the payment by Client of Rent during the Term in accordance with this clause 7.

7.2 Payment

1. Client must pay to DBD:

2. Rent for the Term as specified in the Quote; and

2. all other amounts payable by Client under this clause 7, including any amount payable in respect of loss of or damage to the Equipment, DBD’s costs of re-possession, and any amounts continuing to accrue under clause 7.5.

2. Client’s obligation to pay any amount to DBD under this clause 7 continues even if the Equipment breaks down, or is, or becomes defective, damaged, lost, stolen or destroyed. Client acknowledges and agrees that it will not exercise, or seek to exercise, any right or claim to withhold any amount otherwise payable or claim any deduction or set-off.

3. Unless otherwise stated, Rent and all other amounts due and payable under this clause 7 are specified to be exclusive of Tax. Client must pay, reimburse or bear and indemnify DBD and hold it harmless from all Tax payable in respect of this clause 7 (other than Tax on the income of DBD).

4. Except as expressly provided in clause 8A (Money Back Guarantee), Styling Fees stated in the Quote are charged for the agreed Term as a fixed minimum commitment and are not calculated by reference to the actual number of days that the Equipment remains at the Site Address. Except where required by the ACL, Client is not entitled to any refund, reduction, rebate or credit merely because:

5. the Site Address is sold, withdrawn from sale or placed under contract before the end of the Term;

2. an auction, inspection or sales campaign is cancelled, shortened or completed early;

3. Client requests that the Equipment be collected before the end of the Term; or

4. Client does not use or obtain the anticipated benefit of the Equipment for the whole Term.

7.3 Ownership

1. Client acknowledges and agrees that:

2. the Equipment is and will remain DBD’s property at all times and that Client’s rights under this clause 7 are personal and as bailee only; and

2. it has no authority to deal with, share or transfer possession of the Equipment (and will not purport to do so).

2. Client must:

3. do everything necessary to protect DBD’s title in the Equipment, including where relevant notifying third parties of DBD’s ownership of the Equipment;

2. refrain from doing anything which could give rise to any Claim adverse to DBD’s ownership of the Equipment; and

3. notify DBD immediately if a third party makes any Claim.

4. If DBD becomes entitled to re-possess the Equipment, Client irrevocably authorises (and will use its best endeavours to have any other relevant person similarly authorise) DBD to enter the Site Address and remove, detach and dismantle the Equipment, including from any part of the Site Address to which it may have been affixed. Client indemnifies and holds harmless DBD for any costs arising from its actions to re-possess the Equipment.

7.4 Use and care of the Equipment

1. Client must ensure that the Equipment is used only in accordance with the Quote and the recommendations made by DBD.

2. Client acknowledges and agrees that its use and possession of the Equipment is at its sole risk and it releases DBD from all Claims:

3. arising in respect of the Equipment; and

2. whatsoever caused by Client, its officers, employees, subcontractors, trades and agents.

3. While Client is not in breach of any provision of this clause 7, it may peaceably possess and enjoy the Equipment without any interruption or disturbance from DBD or any person lawfully claiming rights against the Equipment through DBD.

4. Client must not affix the Equipment to land or other property or make alterations to the Equipment which would adversely affect its operation, utility or value, or prejudice any insurance of the Equipment.

7.5 Termination of lease

1. The lease of the Equipment in this clause 7 may be terminated immediately on the date:

2. that a party is in default in performing or observing any of the provisions of this clause 7 where that default has continued for at least 10 Business Days by notice given by the party who is not Insolvent or in default. Termination of the lease of the Equipment because of a party’s default will not prejudice any cause of action or claim of the other party that has accrued or will accrue on account of the defaulting party;

2. the Equipment is abandoned or control of it is lost by Client; or

3. DBD ascertains (acting reasonably) that there is a serious risk of loss of or damage to the Equipment for any reason, or that any representation, warranty or statement made by Client in, or in connection with, this clause 7 is untrue or misleading (whether by omission or otherwise) in any material respect,

(the Lease Termination Date).

2. Client agrees to immediately notify DBD if Client becomes aware that an event listed in clause 7.5(a) has occurred or is about to occur.

3. On the Lease Termination Date all amounts due under this clause 7 are immediately payable if not already paid, and Client must immediately make the Equipment (together with such records regarding the Equipment as is required by DBD) available for re-possession at a time and place directed by DBD or, at DBD’s election, provide immediate access to the Site Address.

4. If Client does not pay DBD in accordance with this clause 7, Client must immediately make the Equipment available for re-possession as set out in clause 7.5(c) and, other than for the purposes of that clause, no longer has any right to possess or use the Equipment.

5. If DBD elects to re-possess the Equipment, Client must pay to DBD on demand its costs of re-possession in addition to all other amounts due under this clause 7.

6. If Client does not pay DBD in accordance with this clause 7 or does not return the Equipment in accordance with clause 7.5(c), Client must continue to pay to DBD amounts equal to the Rent and any other amounts arising under this clause 7 when due and payable as determined by DBD to be attributable to the period for which Client continues in possession of the Equipment.

7. This clause 7.5 does not in any way limit DBD’s rights or affect Client’s obligations under this clause 7.

8. If any transaction, or any payment or transfer received by DBD, relating to this clause 7 is void, voidable, refunded by DBD (including at its discretion) or is otherwise unenforceable or refundable:

9. DBD will be immediately entitled as against Client to all rights in respect of this clause 7 that it would have had if the transaction had not occurred, or the payment or transfer had not been received, and any such money received by DBD will be treated as never having been received by DBD;

2. any release, discharge or settlement given or made (or an obligation to do so) as a result of that transaction or the receipt of that payment or transfer will be of no force and effect; and

3. Client must immediately do anything DBD reasonably requires to restore to DBD any security interest, right or remedy it held immediately before the transaction, payment or transfer, and this clause survives termination of the lease.

7.6 Liability and indemnity

1. Where any applicable legislation implies any term, condition or warranty into the relationship between the parties or into this clause 7, imposes a Consumer Guarantee in respect of the Equipment, or otherwise gives Client a particular remedy against DBD, and any legislation avoids or prohibits provisions excluding or modifying the application of, or exercise of, or liability under, such term, condition, warranty, Consumer Guarantee or remedy (a Non-excludable Condition), then that Non-excludable Condition will be deemed to be included in this clause 7 or apply to the relationship between the parties, and in the case of a Consumer Guarantee imposed on the Equipment, will apply in respect of the Equipment.

2. All terms, conditions and warranties (whether express or implied and whether arising by virtue of statute or otherwise) as to the condition, specifications, quality, fitness for purpose, suitability or safety of, or title to, or as to Tax, accounting classification or otherwise (except any Non-excludable Condition the exclusion of which would cause any part of this clause to be void) are negatived and excluded from this clause 7.

3. DBD’s liability for breach of this clause 7 and for breach of any Non-excludable Condition (other than a guarantee under the ACL) is limited, at DBD’s option, to the maximum extent permitted by applicable legislation to the replacement of, or the resupply of, equivalent Equipment, or the repair of the Equipment.

4. To the maximum extent permitted by law, and subject to the Consumer Guarantees, DBD excludes any liability to Client for indirect or consequential loss arising under or in connection with this clause 7 or the Equipment, including loss of income or opportunity, increased costs of any kind, and damage to Client’s property.

5. To the full extent permitted by law, Client indemnifies and holds harmless DBD, its officers, agents and employees, against all loss (including loss of bargain or profit), Claims and other expenses (including legal expenses on a full indemnity basis) of whatever kind or nature, arising directly or indirectly from, or in respect of the use, seizure, forfeiture of, or loss, destruction, theft or damage to, the Equipment however caused; any damage to property or death of, or injury to, any person suffered or sustained in connection with the Equipment or their use; any Claim from any third party in relation to the Equipment or their use; any Claim for infringement of a person’s intellectual property in connection with the Equipment or their use; any failure by Client to observe its obligations under this clause 7 or arising from any untrue or misleading representation, warranty or statement made by Client in, or in connection with, this clause 7; any steps taken by DBD to administer, exercise, enforce or preserve any of its rights under this clause 7; or the enactment, amendment or change in the interpretation of any legislation that affects this clause 7, other than a loss caused by DBD.

6. The indemnities set out in this clause 7.6 continue in full force and effect notwithstanding the termination (however occurring) of the lease of the Equipment under this clause 7.

8Payment

8.1 Client agrees to pay invoices as specified in the Quote. To the extent Invoice payment terms are not specified in the Quote, all Invoices are payable by Client within 14 days from the date of issue or 5 Business Days before the commencement of the Services, whichever is earlier. DBD is not obliged to schedule or commence the Services, or to order any materials, until payment has been received in full or an approved finance facility has been confirmed.

8.2 DBD reserves the right to invoice Client (in whole or in part) either before the supply of Services, during the supply of Services, or after the supply of Services, in accordance with the Agreement.

8.3 Client must pay Invoices in full without set off, deduction or counterclaim and acknowledges that this clause may be relied on in bar of any proceeding for recovery of the Fees.

8.4 DBD reserves the right to charge interest on any overdue amount, compounded monthly, at the Statutory Rate from the due date until payment is received by DBD in full.

8.5 Client agrees to bear all costs incurred by DBD on a full indemnity basis in collecting any overdue amounts including but not limited to collector agency fees, commissions, legal fees and costs.

8.6 No amount owing whether present or future, actual, contingent or prospective and on any account whatsoever by Client to DBD may be offset against any amount owing whether present, future, actual, contingent or prospective by DBD to Client on any other account whatsoever.

8AMoney Back Guarantee

8A.1 Election of hire option. Where the Quote offers both a Standard Hire option and a Money Back Guarantee option, Client must elect one option at Acceptance. That election is final. Client may not change the elected option after Acceptance, including at or after the expiry of the Standard Hire term, and the Money Back Guarantee is not available to a Client who elected the Standard Hire option.

8A.2 The guarantee. Where Client has elected the Money Back Guarantee option and the Site Address has not been Sold by the end of the Guarantee Period, DBD will refund the Styling Fees paid by Client, subject to this clause 8A.

8A.3 Guarantee Period means the period of 6 months commencing on the Styling Installation Date. Under the Money Back Guarantee option the Guarantee Period is also the Term of the hire.

8A.4 Sold means a contract of sale for the Site Address has been entered into by all parties, whether or not settlement has occurred.

8A.5 Eligibility. All of the following must be satisfied continuously throughout the Guarantee Period:

1. the Site Address is listed for sale and continuously marketed on both realestate.com.au and Domain, on each portal’s premier or highest available marketing package;

2. the Site Address is listed under a current signed sales authority with the selling agent named in the Quote, or with another agent agreed between the parties in writing before the change takes effect, such agreement not to be unreasonably withheld;

3. at least one open for inspection is held in each calendar week;

4. the Equipment remains in place at the Site Address and is not moved, removed, altered, added to or otherwise interfered with without DBD’s prior written consent;

5. the Site Address is not withdrawn from sale, leased, or taken off market for more than 14 days in aggregate, unless otherwise agreed between the parties in writing before the Site Address is withdrawn, leased or taken off market; and

6. all Invoices have been paid in full by their due date and Client is not otherwise in Breach.

8A.6 Exclusions. The guarantee applies to Styling Fees only. It does not apply to Trade Services of any kind, any amount payable under clause 12.3(c) for loss of or damage to Equipment, or charges arising from an Amendment Request.

8A.7 Claims. DBD will notify Client not less than 30 days before the end of the Guarantee Period that the Guarantee Period is ending and of the requirements for making a claim. Client must claim in writing within 14 days after the end of the Guarantee Period. A claim made outside that period is not valid.

8A.8 Evidence. Client must provide, at its own cost: a copy of the current sales authority naming the agent; evidence of the marketing packages purchased on realestate.com.au and Domain, including tax invoices; the agent’s record of open for inspections held, with dates; written confirmation from the agent that the Site Address remains unsold; and any other evidence DBD reasonably requires. Client authorises DBD to obtain that information directly from the selling agent.

8A.9 Assessment and payment. DBD will assess a valid claim within 14 Business Days of receiving all required evidence. Where a claim is approved, DBD will refund the Styling Fees paid to the account from which payment was made within 14 days of approval, and may collect the Equipment on 7 days written notice.

8A.10 Hire under the guarantee option. The Styling Fees cover hire of the Equipment for the whole of the Guarantee Period and no further Rent is payable during that period. The Equipment remains at the Site Address until the earlier of the date the Site Address is Sold and the end of the Guarantee Period, after which DBD will collect the Equipment on 7 days written notice. Where Client wishes to retain the Equipment beyond the Guarantee Period, hire continues at 15% of the Styling Fees per week (inc. GST) and this clause 8A ceases to apply.

8A.11 Relationship with other clauses. This clause 8A is the only circumstance in which Styling Fees are refundable. Clause 7.2(d) continues to apply in all other cases. Cancellation or termination of the Agreement is not a guarantee claim and no refund is payable under this clause where the Agreement is cancelled or terminated.

8A.12 Consumer rights. This guarantee is provided in addition to, and does not limit, exclude or modify, any right or remedy Client has under the ACL or any other law that cannot be excluded.

8A.13 One claim. The guarantee applies once per Site Address per engagement.

9Breach and Termination

9.1 If DBD gives a notice to Client that it has:

1. failed to pay any Invoice when due or Client reverses a payment made;

2. failed to follow DBD’s recommendations or advice provided in respect of the operation of the Services;

3. contravened any other obligations of the Agreement; or

4. engaged in abusive, threatening or discriminatory conduct toward DBD’s personnel or subcontractors,

(each a Breach), and Client fails to resolve the Breach to DBD’s satisfaction in the period specified in the notice (which will be no less than 14 days), DBD may by notice terminate the Agreement (without prejudice to any accrued rights); and, subject to a genuine dispute between the parties, suspend the operation of any and all Services until the Invoice is paid in full, commence debt collection action without further notice if payment is not made within 14 days of the due date, and terminate supply of any and all Services.

9.2 Either party may terminate the Agreement by written notice if the other party commits a breach of the Agreement where the breach is incapable of remedy, or on the insolvency of the other party.

9.3 Notwithstanding the suspension of the Services under this clause, Client must pay any Invoices issued to Client for any completed Services which fall due during that suspension.

10Defect Liability Period

10.1 During the DLP, DBD will be liable for defects in the Services (Defect).

10.2 Client must notify DBD in writing of any Defect as soon as reasonably practicable after becoming aware of the Defect and, in any event, within the DLP (Defect Notice). The Defect Notice must provide reasonable details of the nature and extent of the Defect.

10.3 Upon receipt of a Defect Notice, DBD will have the exclusive right to inspect and, if necessary, rectify the Defect within a reasonable period, as agreed between the parties or, failing agreement, within 14 days of the date DBD received the Defect Notice.

10.4 Client must not engage any third party to rectify any Defect, nor undertake any rectification works themselves, unless and until Client has sent DBD a Defect Notice and DBD has failed to commence rectification of the Defect within the 14 day remedy period, or DBD has notified the Client in writing that it declines to rectify the Defect.

10.5 Nothing in this clause limits Client’s rights under the ACL or any other applicable legislation.

10.6 The parties may agree to vary the rectification timeframe for specific Defect rectification services, provided such agreement is made prior to the expiry of the DLP.

10.7 DBD will not be liable for failing to rectify any Defect where Client did not provide reasonable access to the Site Address to DBD.

11Domestic Building Work

11.8 Where any part of the works constitutes domestic building work above the statutory threshold, that work will be contracted directly between Client and a registered builder under a separate contract, and does not form part of the Services under this Agreement. DBD is not a party to that contract.

12Warranties, Indemnities and Limitation of Liability

12.1 Each party warrants that it has properly authorised execution of, and has full power to execute, deliver and perform its obligations under, the Agreement, and that the Agreement constitutes a legal, valid and binding obligation on it enforceable in accordance with its provisions.

12.2 Subject to the ACL, the Services come with guarantees that cannot be excluded. For major failures with the Services, Client is entitled to cancel any remaining Services and to a refund for the unused portion, or to compensation for its reduced value. Client is also entitled to be compensated for any other reasonably foreseeable Loss or damage. If the failure does not amount to a major failure, Client is entitled to have the Service rectified in a reasonable time and, if this is not done, to cancel the Agreement and obtain a refund for the remaining Services.

12.3 To the maximum extent permitted by law:

1. the Agreement excludes all implied conditions and warranties and any liability to Client for any Loss arising under or in connection with the Agreement (including any consequential, special, incidental, indirect or punitive damages, including lost profits and injury to goodwill arising out of or in connection with the provision of the Services);

2. subject to clause 12.3(c) and DBD’s wilful neglect or gross negligence in the performance of the Services, no party will be liable for damage to persons or property resulting from the Services;

3. Care of Equipment. From the time any Equipment is delivered to the Site Address until it is collected by DBD, Client is responsible for its safekeeping and security. Client must:

4. take reasonable precautions to secure the Site Address and protect the Equipment from theft, loss or damage;

2. ensure that the Equipment is not used, moved, removed, altered or interfered with without DBD’s prior written consent;

3. ensure that animals are appropriately restrained or removed from areas containing the Equipment; and

4. immediately notify DBD of any theft, attempted theft, break-in, loss or damage.

Subject to applicable law, Client must pay DBD the reasonable cost of repairing, cleaning or replacing Equipment that is damaged, lost or stolen. Client’s total liability under this clause 12.3(c) for any one event is limited to the lesser of the reasonable cost of repair or replacement and $10,000.

Any amount payable under this clause is additional to the Fees and is payable within 7 days after DBD issues an Invoice containing reasonable details of the loss. DBD must give credit for any insurance proceeds actually received by DBD in respect of the same loss, excluding any excess, increased premium, uninsured loss and reasonable claim-related costs.

4. DBD will be liable for damage to Client’s property where DBD is at fault or negligent;

5. each party releases the other from any other Loss not expressly stated in the Agreement;

6. no party will be liable to another party to the extent that the other party or its officers, employees, subcontractors or agents has caused or contributed to the Loss claimed; and

7. DBD’s liability is limited at DBD’s option to the re-supply of a replacement or equivalent Service, the rectification of the Service, payment of the costs of having the Service replaced or rectified, and the value of the Services as stated in the Quote.

12.4 Subject to clauses 12.2 and 12.3, Client assumes all risks and liability in respect of the Services, whether used alone or in conjunction with other goods or services.

12.5 Client will be responsible for any costs and charges applied by Client’s financial institution for each unsuccessful debit attempt, any failed payment charge and any collection charge, including any debt recovery agency or legal charges, incurred by DBD. Client authorises DBD to attempt to re-process any unsuccessful payments after 3 Business Days. If the payment remains unsuccessful after 5 Business Days, Client authorises DBD to suspend all Services, pending full payment.

12.6 DBD is not responsible for any failure to perform any Service due to fire, lightning, explosion, flood, earthquake, storm, hurricane, action of the elements, riots, civil commotion, malicious damage, armed conflicts, acts of terrorism, war (declared or undeclared), health intervention or pandemic, blockade, revolution, sabotage, radioactive contamination, toxic or dangerous chemical contamination, natural catastrophes or any other events beyond the reasonable control of DBD (each a Force Majeure Event).

12.7 If by reason of a Force Majeure Event, the delay or non-performance of Services continues for more than 90 consecutive days, then Client may terminate the Agreement on written notice to DBD and no one will be deemed by that notice to be in default.

13Security

13.1 If Client is a company, each of its directors (each a Guarantor) grants an unlimited, irrevocable guarantee in favour of DBD that guarantees to DBD the performance by Client of all of Client’s obligations under this Agreement and indemnifies and holds DBD harmless from and against all and any Loss arising out of the breach or non-performance by Client of this Agreement (G&I).

13.2 The G&I continues during the currency of this Agreement and until all obligations under this Agreement have been satisfied. Each Guarantor is jointly and severally liable, and each Guarantor’s liability will not be affected by DBD giving time or any other concession, indulgence or compromise for the performance of its obligations. The G&I may be enforced against a Guarantor without DBD first taking action against Client or pursuing any other available recourse, and may be enforced despite any neglect or omission to enforce any rights against Client or if any of the agreements between DBD and Client is wholly or partially unenforceable or if Client is insolvent.

13.3 Where Client is in Breach and fails to resolve the Breach to DBD’s satisfaction in no less than 14 days, Client charges all of their estate and interest in the Site Address and any other real property it owns in favour of DBD to secure all amounts arising and performance of all its obligations to DBD under the Agreement. Client acknowledges and agrees that DBD will be entitled to lodge a caveat over any land subject to the charge and consents to DBD lodging that caveat.

13.4 For the purposes of this clause, the terms defined in the PPSA have the same meaning in the Agreement.

13.5 Client agrees and acknowledges that, for the purposes of the PPSA, DBD has a security interest in the Goods and the Equipment and in any right in relation to or derived from the Goods and the Equipment and such other undertaking, property and assets of Client.

13.6 DBD may register its security interests under this clause and clause 7, including as a purchase money security interest.

13.7 Client waives the right to receive a verification statement under the PPSA.

13.8 Client agrees that, if Chapter 4 of the PPSA applies to the enforcement of DBD’s security interests, the following provisions of the PPSA will not apply to that enforcement: section 95 to the extent that it requires DBD to give a notice to Client; section 96; section 130, to the extent that it requires DBD to give a notice to Client; subsection 132(3)(d); subsection 132(4); section 135; section 142; and section 143.

13.9 Client agrees that DBD may allocate any payment that it receives from Client in any manner DBD determines (despite any purported allocation or appropriation by Client).

13.10 Subject to subsection 275(7) of the PPSA, neither party may disclose information of the kind referred to in subsection 275(1) of the PPSA.

14General

14.1 Interpretation

1. In the Agreement reference to one gender applies to all genders; a party includes its personal representatives, successors, permitted assigns, executors and trustees; a statute or statutory provision is a reference to such statute or provision as amended or re-enacted and includes any subordinate legislation; “include” and similar language will not be construed as a word of limitation; and writing or written includes emails.

2. Any order provided by Client to DBD after receiving the Agreement will constitute acceptance of the Agreement.

14.2 Jurisdiction

The Agreement will be governed by and construed in accordance with the laws of the State of Victoria, and the parties submit to the non-exclusive jurisdiction of the Courts of Victoria.

14.3 Severability

Any provision of the Agreement which is prohibited or unenforceable will be ineffective to the extent of the prohibition or unenforceability and severed from the Agreement. The severance of the prohibited or unenforceable term, or part of a term, will not invalidate the remaining provisions or affect the validity or enforceability of the severed term, or part term.

14.4 Assignment

No party may assign or transfer any of its rights or obligations under the Agreement without the prior written consent of the other party, which shall not be unreasonably withheld (and will be deemed to be given when DBD sells its business as a going concern).

14.5 Agreement

Upon execution, the Agreement is binding and can only be amended in writing by the parties.

14.6 Costs

Client will be liable for all costs validly incurred due to its failure to comply with the Agreement associated with the exercise of DBD’s rights under the Agreement, including costs and commission of a law firm or debt collection agency on a solicitor and own client basis.

14.7 Waiver

Any rights under the Agreement may not be waived or varied except in writing signed by the party to be bound.

14.8 Time of essence

Time is of the essence in this Agreement. However, any delay by DBD in exercising rights does not waive those rights.

14.9 Photography and marketing

1. Client agrees that DBD may photograph or otherwise capture images of the Services. These images may include photographs, videos, or other visual representations of the Services.

2. Client grants DBD a non-exclusive, royalty-free, perpetual licence to use, reproduce, publish, and distribute the images of the completed work for the purposes of marketing, social media, and promotional activities. This includes use on websites, social media platforms, brochures, advertisements, and other promotional materials.

3. DBD retains ownership of the copyright in the images it creates, unless otherwise agreed in writing.

4. DBD will not identify the Site Address by street address in any marketing material without Client’s consent, and will withdraw an image from future marketing on Client’s written request to info@deltabydesign.com.au.

5. DBD will ensure that any images used do not disclose personal or sensitive information without obtaining the necessary consents, in accordance with the Privacy Act 1988 (Cth) and the Australian Privacy Principles. DBD’s privacy policy is available at deltabydesign.com.au/privacy-policy.

14.10 Credit reports, notice and consent

Client acknowledges and agrees that DBD may:

1. give certain information about Client to DBD’s related bodies, any credit reporting agency, other credit providers, collecting agencies or legal firms (some being located in foreign countries) in order to obtain a credit report about them or to recover money which is due and payable from them. The information which may be given is information permitted to be disclosed under Part IIIA of the Privacy Act 1988 (Cth) and the Privacy (Credit Reporting) Code, and may include identity particulars, the fact that Client has applied for credit, information about Client’s creditworthiness, and the fact that a Guarantor has offered to act as guarantor;

2. give a consumer credit report to collect overdue payment on commercial credit accounts; and

3. in assessing whether to grant Client’s credit application or whether to accept the Guarantor as a guarantor, seek and obtain information about Client from a credit reporting agency or another credit provider and may give information about them to another credit provider.

15Goods and Services Tax (GST)

15.1 For the purposes of this clause, the terms defined in A New Tax System (Goods and Services Tax) Act 1999 (Cth) have the same meaning in the Agreement.

15.2 Fees quoted to Client in a Quote are inclusive of GST unless the Quote expressly states otherwise. Any other published or advertised price is exclusive of GST unless stated otherwise.

15.3 If GST has any application to any supply made under or in connection with the Agreement, the party making the supply (Supplier) may in addition to any amount or consideration expressed as payable elsewhere in the Agreement, recover from the recipient of the supply (Recipient) an additional amount on account of GST, calculated by multiplying the amount or consideration payable by the Recipient for the relevant supply by the prevailing GST rate.

15.4 Any additional amount on account of GST recoverable from the Recipient under this clause shall be calculated without any deduction or set-off of any amount, and is payable by the Recipient at the same time and in the same manner as paying the amount or consideration for the relevant supply under the Agreement.

15.5 The Supplier must issue to the Recipient a tax invoice, and must do anything else which may be reasonably required to enable or assist the Recipient to claim or verify any input tax credit, set off, rebate or refund in relation to any GST payable under the Agreement.

15.6 Where an adjustment event in relation to a supply under the Agreement has occurred, the Supplier must issue an adjustment note to the Recipient no later than 10 Business Days after that adjustment event.

16Notices

16.1 All notices must be in writing and may only be given by personal delivery, post or email.

16.2 A notice is deemed to be received if by personal delivery, on the day of delivery; if sent by post, 5 Business Days after the day of posting; or if sent by email, on the Business Day after sending (unless within 12 hours of sending, the sender receives an automated delivery failure notification).

17Definitions

In the Agreement, unless the context otherwise requires:

Acceptance is as specified in clause 2.1.

ACL means Schedule 2 of the Competition and Consumer Act 2010 (Cth).

Administration Fee means 20% of the Styling Fees.

Amendment Request is as specified in clause 5.1.

Breach is as specified in clause 9.1.

Business Day means a day that the banks are open for business in Melbourne that is not a weekend or public holiday.

Cancellation Date is as specified in clause 4.3.

Claim means a claim, action, proceeding, costs, damages or demand made however it arises and whether it is present or future, fixed, consequential or unascertained, actual or contingent.

Client includes any person, firm or corporation including successors, administrators and assignors of the party who has requested the supply of Services by DBD as specified in the Quote.

Consumer Guarantee means each consumer guarantee contained in Division 1 of Part 3-2 of the ACL.

Defect is as specified in clause 10.1.

Defect Notice is as specified in clause 10.2.

Deposit means the amount described as such in the Quote or its equivalent meaning (if any).

DLP means the defects liability period from the date DBD notifies Client that any part of a Quote has been completed to the date 3 months following that date (or any other period agreed between the parties in writing).

Equipment means all furniture, art, accessories, goods and materials leased or hired by Client from DBD as specified in the Quote (or as otherwise agreed between the parties in writing).

Fees are as specified in clause 6.1.

Force Majeure Event is as specified in clause 12.6.

Goods means any goods, furniture or materials forming part of the Services or described as such in the Quote or its equivalent meaning (if any).

Guarantee Period is as specified in clause 8A.3.

Guarantor is as specified in clause 13.1.

G&I is as specified in clause 13.1.

Invoice means the tax invoice supplied to Client by DBD for Services supplied.

Lease Termination Date is as specified in clause 7.5(a).

Loss means any liability, claim, damages, costs and includes any loss (imposed by contract, tort including negligence, and under statute), loss of profits, anticipated savings or consequential loss or cost (including legal costs on a solicitor and own client basis).

Non-excludable Condition is as specified in clause 7.6(a).

party means each of DBD and Client unless specified otherwise.

PPSA means the Personal Property Securities Act 2009 (Cth).

Price Change Notification is as specified in clause 5.2(c).

Quote is as specified in clause 1.2.

Recipient is as specified in clause 15.3.

Rent is as specified in the Quote.

Services is as specified in clause 1.1.

Site Address means the address provided to DBD by Client.

Sold is as specified in clause 8A.4.

Statutory Rate means the rate for the time being fixed under section 2 of the Penalty Interest Rates Act 1983 (Vic) as at the date of the default.

Styling Fees means the fees for property styling and hire of the Equipment as specified in the Quote, excluding any fees for Trade Services.

Styling Installation Date means the estimated date of installation of the Equipment as specified in the Quote or otherwise as agreed between the parties in writing.

Supplier is as specified in clause 15.3.

Tax means any tax, levy, impost, deduction, charge or duty of any kind and whether direct or indirect (and any related interest, penalty, fine or costs in connection with any of them) levied or imposed by any government authority.

Term means the period of provision of the Services or lease of the Equipment as relevant and as otherwise specified in the Quote.

Trade Services means property services other than property styling and hire of the Equipment, including cleaning, rubbish removal, gardening, repairs, painting, floor sanding, minor renovation and compliance works, as specified in the Quote.

1Introduction

Welcome to Delta By Design. By accessing and using our website, you agree to comply with and be bound by the following terms and conditions. If you do not agree with these terms, please do not use our website.

2Use of Information

2.1 Collection of Information. We collect personal information from you when you provide it to us directly and through your use of our website. This information may include your name, email address, phone number, and other contact details.

2.2 Use of Information. The information we collect from you may be used in the following ways:

• To contact you in response to your inquiries or requests.
• To send you newsletters and other communications, unless you have opted out of receiving such communications.
• To provide you with information about our products, services, and promotions.
• To improve our website and customer service.

2.3 Opting Out. You may opt out of receiving newsletters and other communications from us at any time by following the unsubscribe instructions provided in the communications.

3Intellectual Property

3.1 Ownership. All content on this website, including but not limited to text, graphics, logos, images, and software, is the property of Delta By Design or its content suppliers and is protected by Australian and international copyright laws.

3.2 Use of Content. You may not reproduce, distribute, modify, display, perform, or use any content from this website for commercial purposes without our prior written permission.

4Limitation of Liability

To the maximum extent permitted by law, Delta By Design shall not be liable for any direct, indirect, incidental, special, or consequential damages arising out of or in connection with the use or inability to use this website or the information contained on this website.

5Governing Law

These terms and conditions are governed by and construed in accordance with the laws of Victoria, Australia. You agree to submit to the exclusive jurisdiction of the courts of Victoria, Australia for any disputes arising out of or relating to these terms and conditions or your use of this website.

6Changes to Terms and Conditions

We reserve the right to modify these terms and conditions at any time. Any changes will be effective immediately upon posting on our website. Your continued use of the website following the posting of changes will constitute your acceptance of those changes.

7Contact Information

If you have any questions about these terms and conditions, please contact us at: