Terms and Conditions: Our Commitment to Clarity

1. This Contract
1.1 These Terms and Conditions are to be read in conjunction with the Engagement Authority and/or Makeover Agreement to the extent applicable.
1.2 The terms which apply to this Contract are:
(a) any terms (including Special Conditions, if any) set out on the Engagement Authority; an
(b) these Terms and Conditions.

The above terms are referenced in order of priority such that the first referenced terms shall prevail over later referenced terms to the extent of any inconsistency.
1.3 These Terms and Conditions may not be varied or amended except as set out in the Special Conditions or otherwise agreed in writing and signed by a duly authorised representative of Presale Makeovers.
1.4 Any representations by Presale Makeovers which are not expressly set out in the Engagement Authority are excluded.
1.5 If any part of this Contract is unenforceable, it shall be severed from this Contract and the remaining parts shall continue to apply.

2. Engagement of Presale Makeovers
2.1 The Client engages Presale Makeovers to perform the Services
2.2 Presale Makeovers may in connection with the delivery of the Services
(a) engage Trade Contractors, suppliers, subcontractors, workers and other third parties (Other Contractors) to perform parts of the Services;
(b) provide Other Contractors with instructions and directions regarding the goods, services or Building Work to be performed by the Other Contractors.
2.3 The Client will not give any instructions directly to Other Contractors or employees engaged by Presale Makeovers in relation to the Services. Except to the extent stated otherwise in this Contract or the Engagement Authority, the Client authorises Presale Makeovers to exercise its own discretion when engaging Other Contractors to perform parts of the Services.
2.4 Presale Makeovers agrees to act reasonably having regard to the Client’s interests when exercising its discretion when engaging with Other Contractors.

3. Performance of the Services
3.1 Presale Makeovers agrees to perform the Services
(a) in accordance with the requirements of this Contract; and
(b) using reasonable skill, care and diligence.
3.2 The Client acknowledges and agrees that the Services to be performed by Presale Makeovers expressly excludes:
(a) applying for, or obtaining, any Approvals required for the Makeover; and
(b) any professional construction services (for example engineering or architectural services).
3.3 If the Services involve Building Works, the Building Work will be supervised by the Supervisor.
3.4 The Client grants Presale Makeovers (together with any Other Contractors) a non-exclusive licence to access the Property for the purpose of performing its obligations under this Contract.
3.5 The Client authorises Presale Makeovers to take photographs of, or film, the Property and/or the performance of the Services and to display and use such photographs or film in any form of media for the purposes of advertising, promoting or marketing Presale Makeovers’ business
3.6 The Client agrees to:
(a) provide Presale Makeovers with any key, code or access device necessary to access the Property;
(b) provide any information, guidance or instructions requested by Presale Makeovers; and
(c) make itself available to meet with Presale Makeovers and discuss the Services, the Makeover or any other matter of relevance to this Contract.
3.7 Presale Makeovers agrees to keep safe and secure any key or access device provided by the Client during the performance of the Services.
3.8 On completion of the Services and, provided the Client is not in default under clause 4, Presale Makeovers agrees to return any key or access device which has been provided by the Client

4. Payments
4.1 In consideration for the performance of the Services, the Client agrees to pay Presale Makeovers the Fees.
4.2 Unless expressly stated otherwise, all Fees are inclusive of GST.
4.3 During and/or on completion of the Services, Presale Makeovers will provide the Client with Invoices, not more frequently than once per week, for work carried out and/or goods supplied in connection with the Services up to the date of the Invoice and the Client must pay the applicable Invoiced Amounts for the supply within 2 days of the date of the respective Invoice.
4.4 If the Client fails to pay an Invoiced Amount when due, Presale Makeovers may immediately suspend performance of the Services and may elect not to recommence performance of the Services until the Invoiced Amount (and any accrued interest) has been paid. Where a suspension of the Services continues for more than 30 days, Presale Makeovers may thereafter terminate this Contract.
4.5 If an Invoiced Amount remains unpaid, without limiting any other rights of
Presale Makeovers under this Contract or at law:
(a) for greater than seven (7) days after the due date for payment, then
Presale Makeovers may charge the Client an administration fee of
$50.00 (plus GST);
(b) for greater than fourteen (14) days after the due date for payment,
then Presale Makeovers may charge the Client a further administration
fee of $50.00 (plus GST); and
(c) for greater than 30 days after the due date for payment, then Presale
Makeovers may refer all outstanding amounts (including any unpaid
Invoiced Amount, administration fees and interest) to a debt collection
agency and recover all associated costs from the Client as a debt due
and payable under this Contract.
4.6 If the Engagement Authority requires the Client to pay a Deposit, then Presale Makeovers shall be entitled to apply the Deposit as follows:
(a) towards payment of any Invoiced Amount (and any accrued interest) due but unpaid by the Client by the due date for payment; and/or
(b) towards payment of the final Invoiced Amount.
4.7 If any balance of the Deposit remains after being applied in accordance with clause 6(b), Presale Makeovers shall refund the balance of the Deposit to the Client within 2 Business Days of the date of the final Invoice.   

5. Provisional Sums
5.1 The Engagement Authority may contain items that are estimates of the cost of procuring certain materials or performing certain work as part of the Services (Provisional Sum). Any Provisional Sums are subject to change will be separately specified in the Engagement Authority.
5.2 Where applicable, once the actual price of a Provisional Sum item is known, the Client will be charged:
(a) the actual cost incurred in acquiring the Provisional Sum item and in performing the work in relation to the Provisional Sum item; and
(b) the amount for Presale Makeovers’ margin (which includes overheads) being 15% applied to the cost of that item.
5.3 If the figure calculated in accordance with clause 5.2 is:
(a) greater than the estimated Provisional Sum, then the difference will be added to the Fee; or
(b) less than the estimated Provisional Sum, the difference will be subtracted from the Fee.

6. Purchased Fittings
6.1 This clause 6 applies where fittings purchases are required as part of the Services.
6.2 Risk in the Purchased Fittings passes from Presale Makeovers to the Client once the Purchased Fittings are delivered to the Property.
6.3 Ownership in, and title to, the Delivered Fittings remains with Presale Makeovers and does not pass to the Client until Presale Makeovers has received full payment of the Fees for those Delivered Fittings.
6.4 The Client must insure the Delivered Fittings for their full replacement value against loss or damage.
6.5 The Client irrevocably authorises and licences Presale Makeovers to enter onto any premises at which the Delivered Fittings are stored to inspect the Delivered Fittings and, if the Client is in default under clause 4, to re-take possession of the Delivered Fittings.

7. Variations
Client Requested Variations
7.1 The Client may request variations or alterations to the Services or require additional work to be performed.
7.2 If Presale Makeovers agrees (in its absolute discretion) to incorporate the Client’s requested variations into the Services (in whole or in part) Presale Makeovers will submit to the Client a quote setting out the change to the Fee associated with the Client’s requested variation.
7.3 The Client must advise Presale Makeovers whether the quote for the Client’s requested variations is accepted, by signing and returning the quote to Presale Makeovers within five (5) days of the date of the quote.
7.4 Presale Makeovers shall not be obliged to undertake any additional work or variation unless the Client has accepted the quote in accordance with clause 6.3 or otherwise by its conduct.
Presale Makeovers’ Variations with Consent E
7.5 Except where clause 7.8 or 7.9 applies, if the Presale Makeovers considers that any variation, addition or alteration to or deletion from the Services is necessary to enable Presale Makeovers to comply with its obligations under this Contract or is necessary or desirable to ensure the efficient and satisfactory completion of the Services, Presale Makeovers will submit a request in writing for variation (Request). Such Request will specify the amount by which the Fee will be increased or decreased by reason of the said variation.
7.6 The Client must confirm in writing within 5 days business days of the Request whether the requested variation is accepted or rejected.
7.7 Upon the Client accepting a Request, the Services shall be deemed to have been varied accordingly and the Fee shall be increased or decreased accordingly.
Presale Makeovers’ Variations without Consent
7.8 Presale Makeovers may, without the consent of the Client and without needing to first consult with the Client:
(a) procure any alteration or variation of or to the performance of the Services to comply with the lawful requirements of any Authority or this Contract;
(b) procure substitution of any materials or workmanship specified in the Engagement Authority with materials and workmanship respectively of a similar quality and standard (as the case may be) to that or those specified in the Engagement Authority,
and the Client will have no claim upon or recourse against the Presale Makeovers in respect of any such alteration, variation or substitution.
7.9 Without limiting the foregoing, if during the course of the Makeover, in the reasonable opinion of Presale Makeovers conditions develop which could cause cracks, structural weakness or other damage to the Property if they are allowed to continue, Presale Makeovers shall perform such remedial or additional work as it considers necessary to safeguard the Property and to the continued progress of the Makeover and such remedial or additional work shall constitute a variation to be dealt with pursuant to the provisions of this clause 7 and the Fee shall be increased or decreased as the case may require in respect of any variation effected or authorised by this clause.

8. Final Inspection and Handover
8.1 Presale Makeovers will advise the Client when the Makeover is complete. The Client agrees to attend the Property with Presale Makeovers at any reasonable time nominated by Presale Makeovers to undertake an inspection of the completed work (Final Inspection) and to agree any defects, incomplete work or other faults to be remedied by Presale Makeovers (Agreed Defects). 
8.2 Following the Final Inspection and rectification of any Agreed Defects, Presale Makeovers will issue a Project Closure Report for the Client’s acceptance. Unless the Client notifies Presale Makeovers in writing within 2 business days of the date of the Project Closure Report that it disagrees with the Project Closure Report, the Client will be deemed to have accepted the Project Closure Report and the performance of the Services.
8.3 Upon acceptance of the Project Closure Report by the Client and, provided the Client is not in default under clause 4, the benefit of any manufacturer’s warranties in relation to the Purchased Fittings (if any) shall be automatically assigned by Presale Makeovers to the Client.

9. Secured Money
9.1 The Client warrants it is the sole owner of the fee simple in the Property
9.2 The Client charges all of its right, title and interest in, to and under, the Property and the Delivered Fittings to Presale Makeovers to secure the full and prompt payment of the Secured Money to Presale Makeovers. The Client agrees with Presale Makeovers that this Contract constitutes:
(a) a purchase money security interest for the purposes of the PPSA; and
(b) an equitable interest in the Property.
9.3 The Client irrevocably consents to Presale Makeovers registering a caveat over the Property, provided that Presale Makeovers has first notified the Client of its intention to register such caveat and allowed the Client reasonable time to pay any amounts due and owing to Presale Makeovers under this Contract prior to registration.
9.4 In the event the Client is in default of its obligations under clause 4 of this Contract, the Client must reimburse Presale Makeovers (on a full indemnity basis) upon demand for:
(a) any registration fees which are paid by Presale Makeovers in connection with clause 3; and
(b) all and any expenses incurred by Presale Makeovers in connection with any exercise or attempted exercise of any power, right, authority, discretion or remedy conferred on Presale Makeovers under this Contract or the PPSA (including without limitation Presale Makeovers’ legal costs and debt collection costs)

Important note for the Client: 
Charging clause in a building work contract seeks to establish an interest in the property to which the contract relates for which a right to lodge a caveat over the property will exist.
In the event that a caveat is lodged over the property, the rights of the owner of the property to deal with the property and have such dealings registered in the Lands Titles Office will be restricted
The interest in the property created by this clause entitles the building work contractor to apply to a court for the sale of the property for the purposes of recovering any debt that may be outstanding in relation to the contract.
The person entering into this contract is advised to seek independent legal advice in relation to this clause.

10. Force Majeure
10.1 If Presale Makeovers’ performance of its obligations under this Contract is affected by Force Majeure it will advise the Client, specifying the nature and extent of the Force Majeure and use reasonable endeavours minimise the impact of the Force Majeure.
10.2 If a Force Majeure continues for more than 60 days, either party may terminate this Contract without liability to the other party by providing the other party with written advice to that effect.

11. Insurance
11.1 Presale Makeovers agrees to hold professional indemnity insurance covering the Services it performs for an amount of A$1,000,000 in the aggregate for all claims.
11.2 If required by the Building Work Contractors Act 1995 (SA), Presale Makeovers will obtain building indemnity insurance covering the Building Work to be performed under this Contract, the cost of which shall be payable by the Client. If directed by Presale Makeovers, the Client agrees to promptly make payment of the premium and any other costs to the insurer for the building indemnity insurance. Presale Makeovers may otherwise elect to issue an Invoice the Client in advance for the premium and any other costs for the building indemnity insurance.

12. Limitation of Liability
12.1 The parties agree that in no circumstances is Presale Makeovers liable for any Consequential Loss in connection with this Contract, irrespective of how such Consequential Loss arises, including whether through breach of contract, tort (including negligence), under an indemnity, under statue or under any other cause of action.
12.2 Any liability of Presale Makeovers in respect of a failure to provide Services in accordance with the requirements of this Contract shall be limited to Presale Makeovers (at Presale Makeovers’ option):
(a) re-supplying the Services; or
(b) refunding the Fee for those Services to the Client.
12.3 Any other liability of Presale Makeovers under this Contract which is unable to be excluded is limited in the aggregate to the higher of:
(a) the total amount of the Fees paid by the Client; and
(b) the amount able to be recovered in respect of that liability under a policy of insurance referred to in clause 8.

13. Governing Law
This Contract is governed by the laws of the state in which the Property is located (State). The parties submit to the non-exclusive jurisdiction of courts exercising jurisdiction of that State

14. Interpretation
(a) The following clauses of these Terms and Conditions do not apply to an engagement of Presale Makeovers solely under a Makeover Agreement: 5 (Provisional Sums), 6 (Purchased Fittings), 8 (Final Inspection and Handover), 9 (Secured Money).
(b) In these Terms and Conditions:
Approvals means certificates, approvals, authorisations, codes, consents, licences, permits, conditions of approval and any other requirements of any Authority;
Authority means any Federal, State or Local Government, or other body, authority or person, statutory or otherwise, which has jurisdiction over the Property or the Makeover;
Building Work means any work which falls within the definition of ‘building work’ in the Building Work Contractors Act 1995 (SA) or ‘residential building work’ in the Home Building Act 1989 (NSW);
Claim means any claim, cost, damages, debt, expense, liability, loss, allegation, suit, action, demand, cause of action or proceeding of any kind;
Client means the person(s) described as the Client in the Schedule;
Commencement Date means the date for the commencement of the Makeover as set out in the Engagement Authority;
Consequential Loss means any loss of profit (whether direct or indirect), reduced value in the Property or loss arising from a delay in sale of the Property, loss of opportunity, or any indirect, consequential or punitive loss or damage, irrespective of whether such loss or damage was within the contemplation of the parties at the time this Contract was formed or arises naturally from the event giving rise to the loss or damage;
Contract means the Makeover Agreement between Presale Makeovers and the Client for the supply of the Services on the terms referred to in clause 1.2;
Delivered Fittings means such Purchased Fittings which have been delivered to the Property but, in respect of which, ownership in, and title to, has not yet passed to the Client;
Engagement Authority means the document signed by the Client setting out the final scope of the Makeover, associated fees, costs and proposed timeline;
Fee means the amount payable for the Services as set out in the Engagement Authority or in a quote a variation;
Force Majeure means anything beyond the control of Presale Makeovers which prevents Presale Makeovers from meeting its obligations under this Contract;
GST has the meaning given to that term in the GST Act;
GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth);
Invoice means a tax invoice from Presale Makeovers to the Client relating to the supply;
Invoiced Amount means the respective Fee for the Service (plus GST and any other taxes) as set out in an Invoice;
Licenced Builder means a person who holds a ‘contractors licence’ under the Home Building Act 1989 (NSW) or a ‘building work contracts licence’ under the Building Work Contractors Act 1995 (SA);
Makeover means the goods, services (including but not limited to design services, cleaning, rubbish removal and landscaping), Building Work and Purchased Fittings to be supplied in respect of the Property as set out in the Engagement Authority;
Makeover Agreement means the document titles Makeover Agreement which is signed by the client in relation to preliminary visual design concept, project scope and scoping of project costs;
person includes any individual, body corporate, partnership or other form of organisation or legal entity;
PPSA means the Personal Property Securities Act 2009 (Cth);
PPSR means the Personal Property Securities Register created and governed by the PPSA;
Presale Makeovers means Presale Makeovers Pty Ltd ACN 638 738 351, Building Work Contractor Licence No. BLD 324645;
Project Closure Report means the report issued by Presale Makeovers confirming that all Services to be performed under this Contract are complete;
Property means the land and dwelling described as the ‘Property’ in the Schedule;
Purchased Fittings means any fittings, fixtures, equipment, goods, parts, inventory or personal property to be supplied by Presale Makeovers as set out in the Engagement Authority and therefore forming part of the Services;
Secured Money means all money which the Client is or may become actually or contingently liable to pay to Presale Makeovers under or in connection with the supply or pursuant to any indemnity in this Contract;
Services means the services required to be performed or arranged by Presale Makeovers in connection with the Makeover;
Special Conditions means terms set out in the Engagement Authority and entitled ‘Special Conditions’ (if any);
Supervisor means David Lamphee Licence No. BLD 270268;
supply means the performance of any Services by Presale Makeovers under this Contract, which may include the supply of Purchased Fittings;
tax invoice has the meaning given to that term in the GST Act;
Terms and Conditions means these Makeover Agreement – Standard Terms and Conditions;
Trade Contractor means a person who performs part of the Makeover by providing goods, services (including professional construction services (for example engineering reports or architectural services)) or Building Work.