These terms and conditions, together with the relevant Styling Proposal (being a separate document specifying the commercial terms) form the entire agreement under which we will provide the Services (together, the Terms) between Term Group Pty Ltd ATF Term Consulting Trust (ABN 76 308 639 105) t/a Evolve Styling (we, us and our) and you, the person, organisation or entity described in the Styling Proposal (you or your), together the Parties and each a Party.
1.1 By proceeding with payment of any amount as set out in the Styling Proposal, you are deemed to have accepted these Terms.
2. GOODS AND SERVICES
2.1 Our property styling services help to prepare properties for sale, and include the renting of Furnishings which we will install in the relevant property (subject to any variance or conditions set out in the Styling Proposal), such that the Property is ready to be photographed and viewed by potential purchasers (Property Styling).
2.2 We also provide partial styling, which includes the use of your own furnishings in combination with items of Furnishings supplied by us, as specified in the Styling Proposal (Partial Styling).
2.3 Any styling services supplied by us in addition to that set out in the Styling Proposal will be charged to you at the rate of $100 per hour (excluding of GST) or part thereof spent by us in undertaking that additional work (Additional Styling). In addition, any Furnishings provided as per the Additional Stylings will be charged at the typical Rental Fee for such items.
2.4 A detailed description of the Goods and Services we provide to you will be set out in the Styling Proposal.
2.5 We agree to provide you the Goods and Services in accordance with these Terms and all relevant laws whether through ourselves or our Personnel.
2.6 You acknowledge that at any time during the Rental Period, we may assign the benefit of these terms to any third party or business.
2.7 Third parties
You acknowledge and agree that:
a) the provision of the Goods and Services may be contingent on, or impacted by, third parties, including suppliers, transportation or logistics providers or subcontractors (Third Party Inputs); and
b) to the maximum extent permitted by law, we will not be liable for any breach or default of these Terms caused or contributed to by any Third Party Inputs.
3.1 You acknowledge and agree that we will not supply the Furnishings until you have paid the Rental Fee.
3.2 We will, at all times, remain the owner of the Furnishings and you take the Furnishings as a bailee only.
3.3 The Rental Period will automatically extend by weekly intervals, unless we are provided with 3 business days’ notice prior to the end of the Rental Period or relevant extension (as applies) of your intention to end the Rental Period (Extended Rental Period). Where the Rental Period is extended, you agree and acknowledge that:
a) there will be an adjustment to the Rental Fee, and the amount specified in the Styling Proposal as the Weekly Extended Rental shall apply during the Extended Rental Period; and
b) you agree to pay the amount so specified at least 24 hours prior to the commencement of the Extended Rental Period in accordance with clause 4 of these Terms.
c) However, notwithstanding anything in this clause, we retain the right to terminate an Extended Rental Period upon 3 business days’ notice to you prior to the end of each relevant extension period.
3.4 You must provide us with notification 2 business days prior to the Property being exchanged in the event of the contract being entered into on an unconditional basis.
3.5 If we receive notification that the contracts for sale of the Property have been exchanged, we may collect the Furnishings prior to the end of the Rental Period, and you agree to give us access to the Property for this collection. For the abundance of clarity, no pro-rata refunds will be provided for early termination in accordance with this clause 3.5.
3.6 You acknowledge and agree that the Furnishings used in the provision of the Goods and Services are intended only for display purposes and must not be used, this includes any products such as soaps, candles, or towels. All Furnishings must be returned to us, upon our request (in accordance with these Terms), in the same condition the Furnishings were provided on the Installation Date. Any damage, loss or use of the Furnishings that is contrary to this clause 3.6 will result in your liability to make payment of any Replacement Cost or Repair Cost on demand.
3.7 In accordance with the Styling Proposal, the security bond will be held by us for Rental Period and returned after the Removal Date, on the condition that all Terms have been complied with and the furnishings have been returned in an acceptable condition in accordance with clause 3.6. We reserve the right to retain the whole or a portion of the security bond and if insufficient then charge an additional amount to compensate for any breach of these Terms.
4. PRICE AND PAYMENT
4.1 You agree to pay us the Price in accordance with the Payment Terms. All amounts are stated in Australian dollars and are exclusive of GST (unless otherwise stated).
4.2 Unless otherwise agreed between the Parties the Styling Proposal must be paid in full before we commence the provision of the Goods and Services.
4.3 If any amounts are unpaid 14 days after the payment date, we may charge interest at a rate equal to 16% per annum (calculated daily and compounding monthly) until we receive payment.
5. YOUR OBLIGATIONS AND WARRANTIES
You represent, warrant, acknowledge and agree that:
a) there are no legal restrictions preventing you from engaging us, or agreeing to these Terms;
b) you have not relied on any representations or warranties made by us in relation to the Goods and Services (including as to whether the Goods and Services are or will be fit or suitable for your particular purposes), unless expressly stipulated in these Terms. In particular, you agree and acknowledge we make no warranties or assurances as to any increase in the sale price of the subject Property;
c) if we are providing Property Styling, the Services may include drilling or nailing or hanging hardware into the walls of the Property, which will be left at the Property after collection of the Furnishings and if it is left, it is your responsibility to make good any damage caused by the installation. While we take care to avoid unnecessary damage, you must notify us prior to the start of the Rental Period if you do not wish for hooks, screws or nails to be installed at the Property;
d) you acknowledge that the hanging of artwork or any good that is not part of the Furnishings is not included in the Services. If the hanging of artwork or any good is requested by you, we may agree to do so at our sole discretion for the charge of $70 (excluding GST) for each hanging (Hanging Service). You further agree and acknowledge that we are not experts or specialists in providing such a Hanging Service and will not be liable for any damage caused to the artwork or other good by our Hanging Service.
e) the information you provide to us is true, correct and complete;
f) you will not infringe any third party rights in working with us and receiving the Goods and Services;
g) you will provide us and our Personnel with sufficient access, free from harm or risk to health or safety, to the Property (including any facilities at the Property), to enable us to provide the Goods and Services, including at the dates and times that we may reasonably request. If you do not comply with this clause 4(g), then you will agree to pay us for any of our Additional Costs as a result (including any storage costs);
h) you will ensure that the Property is clean and tidy, and that all internal works are completed, and you will notify us if the Property will be occupied while we are providing the Goods and Services;
i) you will inform us if any animals or individuals (including owners of the Property or otherwise) will be present at the Property for the Rental Period and it will be at our sole discretion whether we choose to proceed with these Terms and the Styling Proposal. Failure to inform us of any animals or individuals at the Property will be a breach of these Terms and we may terminate these Terms accordingly;
j) you must ensure that power is available at the Property;
k) if applicable, you must complete all ‘To Do’ tasks specified on the Styling Proposal. Failure to complete any tasks so listed, which results in us having to complete the required tasks, may be charged to you as additional styling services in the manner and quantum described in clause 3.
l) you are responsible for obtaining, and providing to us if necessary, any access, consents, licences, approvals and permissions, including parking permits, from other parties necessary for the Goods and Services to be provided, at your cost. In the event that we incur such costs in the provision of the Services, for whatever reason, you agree to reimburse us the costs so paid by us.
6. YOUR STATUTORY RIGHTS:
6.1 If there is a problem with the Goods and Services which is caused by a breach of these Terms by us (Defect), and you have notified us of the Defect within 48 hours after completion of the relevant Services or delivery of the relevant Goods, including Removal of Items (in accordance with these Terms), then, to the maximum extent permitted by law, our Liability arising from, or in connection with, the Defect will be limited to us remedying the Defect, or, at our discretion, refunding you that portion of the Price paid by you with respect to the Defect.
6.2 Certain legislation, including the Australian Consumer Law (ACL) in the Competition and Consumer Act 2010 (Cth) and similar consumer protection laws and regulations, may confer you with rights, warranties, guarantees and remedies relating to the Goods and Services which cannot be excluded, restricted or modified (Statutory Rights). Nothing in these Terms excludes your Statutory Rights as a consumer under the ACL.
6.3 You agree that our Liability for the Goods and Services is governed solely by the ACL and these Terms.
6.4 Subject to your Statutory Rights, we exclude all express and implied warranties, representations and guarantees of any kind (whether under statute, law, equity or on any other basis) and all materials, work, goods and services (including the Goods and Services) are provided to you without warranties, representations and guarantees of any kind.
7. DELIVERY, TITLE AND RISK
7.1 We will use reasonable endeavours to deliver the Furnishings on the Installation Date to the Property, as notified by us to you. Subject to clause 3, we will collect the Furnishings on the Removal Date.
7.2 You or the authorised representative must ensure we are given complete and unfettered access to the Property so as to perform the Services.
7.3 Risk in the Furnishings will pass to you immediately after installation of Furnishings at the Property, whereby prior to installation of Furnishings, title, as well as liability and risk in the Furnishings, remains with us. Once risk in the Furnishings passes to you, you will be solely responsible for the Furnishings.
7.4 We remain the owners of the Furnishings and the Furnishings are not to be used, moved, or removed unless otherwise agreed by us or in accordance with these terms. If the Furnishings are removed without prior consent, we may take action against you in accordance with these Terms, including but not limited to legal action.
7.5 You accept responsibility for any damage or destruction caused by third parties, including any person inspecting the Property and you will be liable for the Repair Cost or Replacement Cost as specified in clause 6
8. CANCELLATION AND/OR RESCHEDULE
8.1 You may not cancel or reschedule the Rental Period or the Installation Date without our prior written consent. If you do cancel Rental Period or Installation Date, the following cancellation fees apply:
a) If you provide us with notice 5 Business Days or less (but more than 1 business day) prior to the Installation Date, you will be liable for a 30% cancellation fee of the Price (less the Security Bond,);
b) If you provide us with notice 1 business day or less prior to the Installation date, you will be liable for a 50% cancellation fee of Price (less the Security Bond);
c) If you provide us with notice on or after the Installation Date, you will be liable for the full Price (less the Security Bond),
8.2 If you request a reschedule of the Install or Removal Date, 5 business days or less prior to the scheduled Install or Removal Date, the following fees will apply:
a) A reschedule of the Installation Date will result in a 20% of the Price (less the Security Bond);
b) A reschedule of the Removal Date will result in a 10% fee of the Price (less the Security Bond);
c) We will notify you of a new Installation/Removal Date; and
d) We reserve the right to alter and/or replace the Furnishings specified within the Styling Proposal to facilitate any unavailability of the specific Furnishings for the new proposed Rental Period.
8.3 If we are unable to proceed with the installation or removal on the respective Installation or Removal Dates for reasons beyond our control, the fee payable under clause 8.2 will similarly apply.
9.1 In providing the Property Styling, we use a professional stylist and stock selection is subject to the stylist’s choice and stock availability. We generally do not accept any returns of items. However, at our discretion, should you request a stock swap or additional item, the following fees will apply:
a) A freight charge of $550;
b) A $220 restyling fee; and
c) Additional rental charges, as applicable, including our standard charges for any Additional Styling as set out at clause 3.
9.2 If a change is made in accordance with clause 9.1, no refunds will be applicable on any amount paid by you under the Styling Proposal.
10. TERM AND TERMINATION
10.1 The Term will commence on the date these Terms are accepted in accordance with clause 1, and will continue until the date we consider the Goods and Services to be complete or supplied to you in accordance with these Terms, unless terminated earlier in accordance with its terms.
10.2 Either Party may terminate these Terms if the other Party breaches a material term of this Agreement, and that breach has not been remedied within 7 business days of being notified by the relevant Party, subject to clause 10.3.
10.3 On termination or expiry of these Terms, you agree that:
a) save for where you terminate in accordance with clause 2, any payments made by you to us are not refundable to you;
b) you are to pay for all Goods and Services provided prior to termination (including any Goods and Services which have been supplied and have not yet been invoiced to you) and any other amounts due and payable to us (including by way of indemnity);
c) where we have terminated under clause 2, you are to pay us any Additional Costs arising from termination; and
d) you will not disparage or otherwise make any unfavourable statements or comments about us either directly or by implication, verbally or in writing;
e) you agree to return or give us access to recover all property belonging to us on request (including Furnishings), and to give us or our Personnel such rights of access necessary to exercise our rights under this clause.
10.4 The accrued rights, obligations and remedies of the Parties are not affected by termination of these Terms.
11. LIABILITY, INDEMNITY AND EXCLUSIONS
11.1 Despite anything to the contrary, to the maximum extent permitted by law:
a) you warrant that you have not relied upon any warranty, representation, statement, offer or documentation made or provided by or on behalf of us, whether before or after the date these Terms are accepted in accordance with clause 1;
b) you agree that these Terms exclude all terms, conditions and warranties implied by statute, in fact or on any other basis (including as to functionality, suitability or fitness for purpose), except to the extent such terms, conditions and warranties are fully expressed in these Terms;
c) our maximum aggregate Liability arising from or in connection with these Terms will be limited to, and will not exceed, the portion of the Price paid by you to us for the Goods and Services the subject of the relevant claim;
d) we will have no Liability, and you release and discharge us from all Liability, to the extent arising from, in connection with, or caused or contributed to by, any:
1. event or circumstance beyond our reasonable control;
2. your acts or omissions; and
3. any indirect or Consequential Loss, including for any real or anticipated loss of profit, loss of revenue, loss of benefit, loss of goodwill, loss of opportunity, loss of savings, and
you will indemnify us for and against all Liability that we may suffer or incur arising from or in connection with any of your wrongful acts or omissions, or any breach of these Terms by you.
11.2 Limitation of liability: Despite anything to the contrary, to the maximum extent permitted by law:
a) we will not be liable for any Consequential Loss; and
b) our maximum aggregate Liability in relation to the provision of the Goods and Services or these Terms will be limited to us resupplying the Goods and Services to you or, in our sole discretion, to us repaying you the amount of the Price paid by you to us in respect of the provision of the relevant Goods and Services to which the Liability relates.
11.3 Insurance: you are obliged to obtain appropriate insurance on the Furnishings from the Install Date to the Removal Date and where the Furnishings are lost or damaged, you must:
a) Immediately report the damage or loss to us and if requested by us, the police and relevant insurer;
b) Co-operate with us, the police, and the insurer in respect of any claim;
c) On-demand pay an excess of $650 per claim on the insurance effected by us or any excess payable on any insurance effected by you;
d) In lieu of subclauses (a) – (c), where insurance will not cover the cost of damage or loss of a specific item, or where, in our view, the cost of excess would likely exceed the relevant replacement cost, pay the full replacement value for the Furnishings so lost or damaged; and
e) Continue making the required Rental Fee payments until full value of the loss or damage has been received by us (including as received from a relevant insurer).
f) Risk Protection: you may elect to obtain Risk Protection by making payment of an additional 10% of the Rental Fee as a ‘Risk Protection Fee’. If you do so, we shall not recover the cost of any loss or damage caused to any Furnishings due to the following events:
i. Theft and/or vandalism of any Furnishing from forcible and/or illegal entry of the Property; or
ii. Fire or flood damage to any Furnishing resulting from a fire or flood at the Property,
iii. However, the Risk Protection of a Defined Event does not extend to loss or damage from a Defined Event was caused or contributed to by your own negligent, wilful or intentional act committed directly or indirectly by you (as reasonably determined by us); and
iv. You must notify us in writing of the Defined Event within 3 Business Days of it occurring.
12. INTELLECTUAL PROPERTY
12.1 As between the Parties, all Intellectual Property Rights developed, adapted, modified, licensed or created by or on behalf of us or our Personnel in connection with these Terms or the provision of the Goods and Services (Materials), whether before or after the date of acceptance of these Terms, will at all times vest, or remain vested, in us.
12.2 You must not breach our copyright or Intellectual Property Rights by, including but limited to:
a) altering or modifying any of our Materials;
b) creating derivative works from our Materials;
c) providing or disclosing our Materials to, or allowing our Materials to be used by, any third party without our prior written consent; or
d) using our Materials for purposes other than as expressly stated in these Terms (including, without limitation, using our Materials for commercial purposes or on-selling our Materials to third parties).
12.3 We are entitled to use photographs of the Property styled by us in accordance with these Terms to promote our business, and we will do all things necessary to obtain any consent/s required for that purpose.
13.1 Confidentiality: You must (and must ensure that your personnel do) keep confidential, and not use or permit any unauthorised use of, all Confidential Information, except where the disclosure is required by law.
13.2 Disputes: A Party may not commence court proceedings relating to any dispute, controversy or claim arising from, or in connection with, these Terms (including any question regarding its existence, validity or termination) (Dispute) without first meeting with a senior representative of the other Party to seek (in good faith) to resolve the Dispute. If the Parties cannot agree how to resolve the Dispute at that initial meeting, either Party may refer the matter to a mediator. If the Parties cannot agree on who the mediator should be, either Party may ask the New South Wales Law Society to appoint a mediator. The mediator will decide the time, place and rules for mediation. The Parties agree to attend the mediation in good faith, to seek to resolve the Dispute. The costs of the mediation will be shared equally between the Parties. Nothing in this clause will operate to prevent a Party from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction.
13.3 Governing law: These Terms are governed by the laws of New South Wales. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in New South Wales and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.
13.4 GST: If and when applicable, GST payable on the Price will be set out in our invoice. You agree to pay the GST amount at the same time as you pay the Price.
13.5 Notices: Any notice given under these Terms must be in writing addressed to the relevant address last notified by the recipient to the Parties. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission by email.
13.6 Severance: If any provision (or part of it) under these Terms is held to be unenforceable or invalid in any jurisdiction, then it will be interpreted as narrowly as necessary to allow it to be enforceable or valid. If a provision (or part of it) under these Terms cannot be interpreted as narrowly as necessary to allow it to be enforceable or valid, then the provision (or part of it) must be severed from these Terms and the remaining provisions (and remaining part of the provision) of these Terms are valid and enforceable.
13.7 Survival: Clauses 7, 6, 10, 11, 12 and 13.1 will survive the termination or expiry of these Terms.’
14. INTERPRETATION & DEFINITIONS
14.1 Any reference to “Goods and Services” may mean “Goods and/or Services”, as the case may be.
14.2 In these Terms, unless the context otherwise requires, capitalised terms have the meanings given to them in the Styling Proposal, within these terms and conditions, and:
Additional Costs means any additional costs, expenses, damages or losses suffered or incurred by us.
Business Day means day on which banks are open for general banking business in New South Wales, excluding Saturdays, Sundays and public holidays.
Confidential Information includes information which:
a) is disclosed to you in connection with these Terms at any time;
b) is prepared or produced under or in connection with these Terms at any time;
c) relates to our business, assets or affairs; or
d) relates to the subject matter of, the terms of and/or any transactions contemplated by these Terms,
whether or not such information or documentation is reduced to a tangible form or marked in writing as “confidential”, and howsoever you receive that information.
Consequential Loss includes any consequential, special or indirect loss, damage or expense including any real or anticipated loss of revenue, loss of profit, loss of use, loss of occupation, loss of benefit, loss of financial opportunity, or economic loss whether arising out of a breach of these Terms, at law, under any statute, in equity, or in tort (including negligence).
Furnishings means as applicable, the furnishings, furniture, fittings, artwork, decorations, and similar items that we supply to you when providing Property Styling under these Terms.
Goods and Services means the goods and services to be provided by us under these Terms, as expressly set out in the Styling Proposal, and includes the Property Styling, Partial Styling, or Additional Styling as applicable.
Installation Date means the Install Date set out in the Styling Proposal.
Intellectual Property means any domain names, know-how, inventions, processes, trade secrets or Confidential Information; or circuit layouts, software, computer programs, databases or source codes, including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing.
Intellectual Property Rights means for the duration of the rights in any part of the world, any industrial or intellectual property rights, whether registrable or not, including in respect of Intellectual Property.
Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party, a Party or otherwise.
Payment Terms means the payment terms set out in the Styling Proposal.
Personnel means, in respect of a Party, any of its employees, consultants, suppliers, subcontractors or agents.
Property means the Property, as agreed between the Parties, and as set out in the Styling Proposal, where the Goods and Services are to be provided, and includes any other property necessary for us to access or use, for the provision of the Goods and Services.
Price means the price set out in the Styling Proposal for the provision of the Goods and Services, and includes the Rental Fee (if applicable), and all other reasonable expenses or disbursements (including delivery costs, and third-party costs such as storage costs and Furnishing cleaning costs) properly incurred by us in the provision of the Goods and Services.
Styling Proposal means the Styling Proposal to which these Terms are attached.
Rental Fee means the amount charged for the rental of the Furnishings or any specific item thereof as specified in the Styling Proposal.
Rental Period means the period from the Install Date to the End Date as defined in the Styling Proposal
Repair Cost means our costs in repairing our damaged Furnishings, including the costs incurred by us in undertaking the repairs such as delivery or shipping costs.
Replacement Cost means our costs in obtaining a similar or like Furnishing (being a like Furnishing of similar quality that can be used for the same purpose), including any shipping costs, taxes, or similar we incur in so obtaining that Furnishing.
Removal Date means the date that we advise you that the Furnishings are to be removed, which date may be before or after the End Date specified in the Styling Proposal.
Weekly Extended Rental means the weekly extended rental rate (incl GST) specified in the Styling Proposal.
For any questions or notices, please contact us at:
TERM Group Pty Ltd (ACN: 642 386 294) as trustee for TERM Consulting Trust T/A Evolve Styling ABN 76 308 639 105
Address: 16 Luland St, Botany NSW 2019 AUSTRALIA
Phone Number: 02 90902319
Email: [email protected]
Last update: 10 October 2022