HOMETERMS & CONDITIONS ∙ Services Terms and Conditions

Services Terms and Conditions

1. Structure of Agreement

(a) These Terms are between Furnishd and the Client (as such terms are defined in clause 1).

(b) If the Client requests Services from Furnishd during the Term, Furnishd may issue a SOW relevant to the Services.

(c) The Client must accept, reject or seek an amendment to the SOW within 30 days of the date it was issued by Furnishd.

(d) Each SOW forms a separate agreement governed by these Terms.

(e) The following order of precedence applies in the event of an inconsistency:

(i) a SOW; and

(ii) these Terms.


2. Term

(a) These Terms commence on the Agreement Date and continue until it is terminated in accordance with its terms (Term).

(b) Unless otherwise specified in a SOW, each SOW:

(i) commences on the date the SOW is signed or accepted by the last party or the start date specified in that SOW (whichever is earlier); and

(ii) expires on the completion date specified in that SOW or the date both parties have completed their obligations under that SOW (whichever is later), unless terminated earlier in accordance with the Agreement.


3. Client obligations

3.1 General obligations

The Client must:

(a) provide Furnishd with clear, accurate, complete and up-to-date information and immediately notify Furnishd if the information changes;

(b) carry out its obligations under the Agreement in a timely and efficient manner;

(c) do all things necessary to enable Furnishd to perform its obligations under the Agreement, including providing Furnishd or a third party identified by Furnishd with the necessary access to the Client's systems, data and Personnel; and

(d) not make or publish any false, disparaging, malicious or defamatory statement (whether written or oral) about Furnishd, its Related Bodies Corporate, the Personnel of any of those entities, or the Services.

3.2 Specific obligations

The Client must comply with:

(a) the Agreement;

(b) the reasonable directions, policies (including the Delivery Policy and Return Policy) and procedures of Furnishd or a third party identified by Furnishd; and

(c) all Laws and industry standards in its use of the Services and Deliverables and performance of its obligations under the Agreement.


4. Furnishd obligations

4.1 Obligations

Furnishd must:

(a) use reasonable endeavours to provide the Services and Deliverables in accordance with the relevant SOW and these Terms; and

(b) provide the Services and Deliverables with reasonable care and skill.

4.2 Qualifications

The obligations under clause 4.1 will not apply in the event of:

(a) any non-conformance which is caused, or contributed to, by:

(i) the Client’s use of the Services contrary to Furnishd's instructions or the terms of this Agreement; or

(ii) a third party’s act, omission or delay;

(b) a Force Majeure Event.


5. Fees

5.1 Payment

(a) The Client must pay the Fees as specified in the relevant SOW.

(b) The Fees are payable in Australian dollars within 7 days of the invoice date, unless otherwise agreed between the parties.

(c) If the Client fails to pay the Fees by the due date, or any other amounts owing to Furnishd, Furnishd may:

(i) suspend further performance of the Services and delivery of the Deliverables under the relevant SOW;

(ii) set off the outstanding amounts against any amounts owed to the Client by Furnishd under the relevant SOW; and

(iii) terminate the relevant SOW.

(d) The Client must pay Furnishd all costs and expenses incurred in recovering any outstanding Fees, including legal costs.

(e) The Client’s payment of the Fees is evidence of approval of the corresponding Deliverable or Service.

5.2 GST

(a) A reference in this clause to a term defined or used in A New Tax System (Goods and Services Tax) Act 1999 (Cth) is a reference to that term as defined or used.

(b) All amounts in the Agreement are exclusive of GST, unless otherwise specified.

(c) If GST is imposed on a supply made under, or in connection with, the Agreement, the recipient of the supply must pay Furnishd an amount equal to the GST payable on the supply in addition to, and at the same time as, any consideration for the supply.


6. Variation of Services

(a) The Client may request a variation to the Services or Deliverables in an executed SOW (Variation Request) at any time.

(b) Furnishd must notify the Client after receiving a Variation Request of its acceptance or rejection of the Variation Request.

(c) Furnishd:

(i) is under no obligation to accept the Variation Request; and

(ii) may update the scope of work, Fees and estimated completion dates as a precondition to accepting the Variation Request.

(d) A Variation Request is only effective if signed by both parties. A signed Variation Request will be incorporated into the Agreement and references to 'Services', 'Fees', 'Completion Date' and any other term defined or specified in the relevant SOW will include a reference to those updated terms in the signed Variation Request, unless otherwise agreed by the parties.


7. Intellectual Property

7.1 Furnishd IP

(a) Furnishd owns the Furnishd IP.

(b) Subject to Furnishd’s receipt of the Fees, Furnishd grants to the Client a non-exclusive, revocable, non-transferrable and non-sub-licensable licence to use the Furnishd IP for the purpose of implementing the Deliverables as part of the Project. The Client must not reproduce, distribute or use the Furnishd IP for any other purpose, without Furnishd’s prior consent. 

7.2 Client IP

(a) The Client owns the Client IP.

(b) The Client grants to Furnishd a royalty-free, worldwide, non-exclusive, non-revocable, perpetual, transferrable and sub-licensable licence to use the Client IP for the purpose of implementing the Deliverables as part of the Project.

7.3 Developed IP

(a) Furnishd owns the Developed IP.

(b) Subject to Furnishd’s receipt of the Fees, Furnishd grants to the Client a non-exclusive, revocable, non-transferrable and non-sub-licensable licence to use the Developed IP for the purpose of implementing the Deliverables as part of the Project.

7.4 Third Party IP

(a) The Client acknowledges that the Services and Deliverables may include Third Party IP and the Client’s rights to use the Services and Deliverables is subject to the Third Party IP.

(b) Any rights the Client may have to access Third Party IP is limited to:

(i) the extent of Furnishd’s ability to license such rights to the Client;

(ii) its ability to pass on such rights to the Client; and

(iii) the relevant Third Party IP usage terms or licence.

(c) Except as expressly stated in this Agreement, the Client obtains no right, title or interest in the Third Party IP.

7.5 Right to publish and credit for design work

(a) The Client grants Furnishd permission to use and publish, in any medium, its name, logos and trade marks, together with reference to the fact that the Client is a customer of Furnishd and its involvement in the Project, unless otherwise agreed in a SOW.

(b) Furnishd may elect to be credited for the Developed IP or Project in any publication or presentation.


8. Warranties

The Client warrants on a continuing basis that:

(a) the use of the Client IP by Furnishd will not infringe any Third Party IP;

(b) it has received all consents required to allow Furnishd to freely use the Client IP without infringing any third party's rights, including Moral Rights; and

(c) it will use the Services in accordance with any usage restrictions specified in the Agreement or by Furnishd or a third party identified by Furnishd.


9. Liability, indemnity and disclaimer

9.1 Liability

(a) To the fullest extent permitted by Law, Furnishd:

(i) excludes all express or implied representations, conditions, statutory guarantees, warranties and provisions (whether based on statute, common law or otherwise), in connection with the Services or Deliverables (including any variations in colour and pattern which may occur between product samples and the final Deliverables);

(ii) is not liable for Consequential Loss suffered by the Client or a third party which arises out of, or in connection with, the Agreement;

(iii) is not liable for the acts and omissions of third parties; and

(iv) is not liable for any Loss to property or for personal injury or death.

(b) Furnishd’s aggregate liability under the Agreement to the Client or any third party, however arising, is limited to the Fees paid by the Client to Furnishd, that is the subject of the Claim, in the 6 months preceding the Claim.

9.2 Indemnity

The Client indemnifies, and must continue to indemnify, Furnishd, its Related Bodies Corporate, and the Personnel of those entities, from all Loss incurred by them, and all Claims against them, arising out of, or in connection with:

(a) any of the Client’s representations or information being false, inaccurate or misleading;

(b) the Client's infringement of Furnishd IP or Developed IP;

(c) the Client’s breach of the Agreement;

(d) the Client's use of the Services or Deliverables;

(e) an act or omission by the Client in connection with the Agreement.

9.3 Disclaimer

The Client acknowledges that any advice given by Furnishd is a guide only and does not constitute the provision of specialist advice, such as structural, construction or building advice.

9.4 Survival

This clause 9 survives termination of these Terms.


10. Termination

10.1 Termination of SOW

(a) Either party may terminate a SOW by giving 15 days' notice to the other party.

(b) Either party may terminate a SOW with immediate effect if the other party:

(i) commits a material breach of the SOW (including a failure to pay any Fees) that is incapable of remedy;

(ii) commits a material breach of the SOW (including a failure to pay any Fees) that is capable of remedy and fails to remedy that breach within 10 Business Days of receiving notice of the breach; or

(iii) suffers an Insolvency Event (and the Corporations Act (Cth) 2001 does not prevent termination).

10.2 Termination of these Terms

On termination or expiry of all SOWs, either party may terminate these Terms by giving 30 days' notice to the other party.

10.3 Effect of termination

(a) Termination of a SOW will not affect these Terms or any other SOW in effect at the time of termination.

(b) Termination of a SOW or these Terms will not affect any rights or obligations which may have accrued prior to termination, including for any prior breach.

(c) On and following termination of a SOW:

(i) all licences and rights granted under, or in connection with, that SOW will immediately terminate; and

(ii) the Client must pay any outstanding amounts owing under that SOW to Furnishd within 7 days after termination.

(d) On termination of these Terms, the Client must:

(i) immediately stop using Furnishd IP and Developed IP; and

(ii) permanently destroy or return all copies of the Confidential Information of Furnishd on request, and certify to Furnishd that it has done so.


11. Confidential Information

11.1 Confidentiality obligations

A Receiving Party must:

(a) maintain the confidentiality of the Confidential Information and not disclose it, or allow it to be disclosed to a third party, except:

(i) where expressly permitted to do so under the Agreement;

(ii) with the prior consent of the other party; or

(iii) to its officers, employees or legal advisers who have a need to know for the purposes of the Agreement and are aware the Confidential Information must be kept confidential; or

(iv) as required by Law; and

(b) take reasonable precautions to maintain the secrecy and confidentiality of the Confidential Information.

11.2 Exceptions

The confidentiality obligations in these Terms do not extend to information:

(a) disclosed to a party which, at the time of disclosure, is rightfully known to or in the possession of that party and not subject to an obligation of confidentiality on that party;

(b) that is public knowledge (except because of a breach of these Terms or any other obligation of confidence); or

(c) required to be disclosed by Law or any Government Agency, or for the enforcement of these Terms,

whether before, on, or after the Agreement Date.

11.3 Damages inadequate

Each party acknowledges that:

(a) damages may be an insufficient remedy for a breach or suspected breach of this clause 11 by the Receiving Party; and

(b) the Disclosing Party may seek equitable relief (including interim or injunctive relief) as necessary to remedy or prevent the breach, without having to prove any special damage arising from the breach or suspected breach.

11.4 Survival

This clause 11 survives termination of these Terms.


12. Privacy

(a) Each party must comply with Furnishd’s privacy policy and Privacy Laws in relation to Personal Information provided or made available to it under the Agreement.

(b) The Client warrants that:

(i) it has obtained the necessary consents to disclose the relevant Personal Information to Furnishd and permit Furnishd to use the Personal Information under the Agreement; and

(ii) the owners of the Personal Information are aware that Furnishd may use and disclose their Personal Information in accordance with the Agreement.

(c) The Client must immediately notify Furnishd and provide sufficient details if any consent referred to in clause 12(b) is withdrawn.

(d) The Client must keep adequate records of its compliance with this clause 12.

(e) The Client must immediately notify Furnishd if it becomes aware of a privacy complaint or an allegation of a breach of Privacy Laws by any person, or a privacy related investigation or enforcement action by a regulatory authority, in connection with the Agreement.


13. Force Majeure Events

13.1 Consequences of a Force Majeure Event

If a Force Majeure Event prevents a party from performing any of its obligations:

(a) as soon as reasonably practicable, that party must give the other party notice of the Force Majeure Event; and

(b) that party is excused from performing its obligations which it is prevented from performing, for the duration of the Force Majeure Event, subject to it notifying the other party.

13.2 No release from obligation to pay money

A Force Majeure Event does not excuse a party from any obligation to pay money.

13.3 Termination for extended Force Majeure Event

If a Force Majeure Event prevents a party from performing its obligations to a material degree for more than 30 consecutive days, the other party may terminate this Agreement by giving 5 Business Days' notice.


14. Dispute resolution

(a) Before commencing court or tribunal proceedings (except for interlocutory or interim relief), the parties must refer any dispute under or relating to the Agreement to a nominated representative of each party to endeavour to resolve the dispute within 30 days.

(b) If the dispute is not resolved with this period, either party may initiate court or tribunal proceedings.

(c) Each party must continue to perform its obligations under the Agreement during the dispute.


15. Independent legal advice

Each party warrants that it has:

(a) been given an adequate opportunity to read this Agreement;

(b) understood the extent and nature of its obligations under this Agreement before agreeing to it; and

(c) received independent legal advice about this Agreement or otherwise waived its rights to do so.


16. Notices and electronic communications

16.1 Notices

A notice, consent, agreement, approval, waiver, direction or similar given or required under this Agreement:

(a) must be in writing, in English and signed by, or sent by email from, a person authorised by the sender;

(b) must be delivered to the recipient in person or by email or registered post to the email or address in the Party details section of this Agreement, or as otherwise notified by the receiving party; and

(c) is deemed to be given by the sender, and received by the recipient:

(i) if delivered in person, on delivery;

(ii) if sent by email, at the date and time the email was sent, as recorded by the sender’s email server, unless the sender receives an automated delivery failure notice, in which case notice is deemed not to be given or received; or

(iii) if sent by registered post, 5 Business Days (or 10 Business Days, if posted outside Australia) after the date it was posted.

16.2 Electronic communication

The parties consent to giving and receiving notices electronically.


17. General

17.1 Authority

Each party warrants it has the authority to enter into, and perform its obligations under, this Agreement including giving all consents, rights or powers.

17.2 Costs

Each party must pay its own costs for the negotiation, preparation, execution and performance of this Agreement.

17.3 Entire agreement

This Agreement constitutes the entire agreement between the parties in relation to, and supersedes any prior conduct, arrangement, agreement or understanding of, its subject matter.

17.4 Relationship of parties

(a) Unless otherwise provided in this Agreement, no party is authorised to bind another party.

(b) Nothing in this Agreement creates an employment, agency, trust, partnership, fiduciary or joint venture relationship between any of the parties. 

17.5 Set off

Furnishd may set off amounts owed or payable under this Agreement against amounts payable to the Client. 

17.6 Severability

If any part of this Agreement is or becomes invalid or unenforceable under any law, it is severed in the relevant jurisdiction but only to the extent it is invalid or unenforceable.

17.7 Approvals and consent

Except as set out in this Agreement, a party may:

(a) give or withhold approval or consent at that party’s discretion; and

(b) give approval or consent subject to conditions.

17.8 Variations

This Agreement may only be amended or replaced by a written agreement, signed by all parties.

17.9 Waivers

A waiver of a right, power or remedy must be signed by the party giving it and cannot be implied by conduct, delay or failure to act.

17.10 Counterparts

(a) This Agreement, and any subsequent variation, may be signed or accepted in counterparts.

(b) All documents, or counterparts, may be signed or agreed to electronically via DocuSign or similar platform.

(c) All signed or accepted counterparts, together with any electronic transaction record, together constitute 1 document.

17.11 Survival

Each obligation and warranty capable of future operation will continue in force after this Agreement is fully performed or has otherwise ended.

17.12 Governing law and jurisdiction

(a) This Agreement is governed by the laws in force in Victoria, Australia.

(b) Each party irrevocably submits to the exclusive jurisdiction of courts exercising jurisdiction in Victoria, Australia and waives any right to claim that those courts are an inconvenient forum.


18. Definitions and interpretation

18.1 Defined terms

Agreement means these Terms, the applicable SOW and any other document referenced in those documents.

Agreement Date means the date the last party signs these Terms.

Applicable Law means any law, regulation, mandatory guideline or standard, ordinance, court ruling or requirement or direction of a Government Agency, or similar, in any jurisdiction in which this Agreement is performed, or governing the Services or a party to this Agreement anywhere in the world.

Approval means any approval of a Government Agency, permit, licence, authorisation, registration or similar required under any Law in connection with this Agreement.

Business Day means a day that is not a Saturday, Sunday or gazetted public holiday in Melbourne, Victoria, Australia.

Claim means any claim, demand, remedy, suit, action, proceeding, right of action, claim for compensation or claim for abatement of any monetary obligation, whether arising under contract (including this Agreement), in tort (including negligence), at common law, in equity, under statute, under an indemnity or otherwise.

Client means a client of Furnishd, the details of which are set out in an applicable SOW.

Client IP means all Intellectual Property owned or licensed by the Client, and includes any enhancements, modifications or derivatives of the Client IP made after the Agreement Date, and excludes the Developed IP.

Confidential Information means, in relation to a Disclosing Party:

(a) the following information, regardless of its form and whether the Receiving Party becomes aware of it before, on or after the Agreement Date:

(i) information that is, by its nature, confidential;

(ii) information that the Disclosing Party designates as confidential; or

(iii) information the Receiving Party knows, or ought to know, is confidential;

(b) all notes and other records prepared by the recipient based on or incorporating information in clause (a) above; and

(c) all copies of the information, notes and other records in clauses (a) and (b) above,

and in the case of Furnishd, includes Furnishd IP, Developed IP and Third Party IP.

Consequential Loss means any of the following, however arising and even if it is reasonably contemplated by the parties at the Agreement Date:

(a) incidental, special, remote or unforeseeable loss;

(b) loss of revenue, profit, income, bargain, opportunity, use, customers or clients, uptime, business, contract, goodwill, or anticipated savings, loss or corruption of data, loss of use of data, loss caused by business interruption, or the cost of obtaining new financing or maintaining existing financing, but excluding loss of any amounts that, other than for the act or omission of a party, would have been payable under this Agreement;

(c) costs or expenses incurred to prevent or reduce loss or damage which otherwise may be incurred or suffered by a third party; or

(d) loss or damage set out above in paragraphs (a) to (c) that is incurred or suffered by or to a third party.

Deliverables means the tangible deliverables produced or generated as a result of the Services, as specified in a SOW.

Developed IP means all Intellectual Property created or developed by Furnishd under this Agreement, and excludes Furnishd IP.

Disclosing Party means a party to this Agreement who discloses or makes available Confidential Information to the Receiving Party.

Fees means any fees payable by the Client for the Services and Deliverables under this Agreement.

Force Majeure Event means an event or circumstance:

(a) that is beyond the reasonable control of a party;

(b) which that party is not reasonably able to prevent or overcome; and

(c) which prevents that party from performing a material obligation under this Agreement, including, subject to satisfaction of the foregoing:

(i) extreme weather events, fire or natural disaster;

(ii) acts of war, riots, terrorism or vandalism;

(iii) failure or shortage of power supplies or other essential utility;

(iv) pandemic, epidemic or other widespread threat to human health (including an outbreak or recurrence);

(v) strike, embargo or industrial disturbance;

(vi) government imposed shutdown or closure;

(vii) a change in Applicable Law.

Furnishd means HomePal Technology Pty Ltd (ACN 627 330 214), with a registered address at Suite 6, 112 Rokeby Street Collingwood, Victoria, 3066.

Furnishd IP means all Intellectual Property owned or licensed by Furnishd and all modifications, enhancements, derivations and updates to it.

Government Agency means any governmental, judicial or statutory body with authority or jurisdiction over this Agreement or a party.

Insolvency Event means any of the following:

(a) a receiver, receiver and manager, liquidator, provisional liquidator, controller or any form of external administrator has been appointed over either party or any property belonging to either party;

(b) an event occurs which gives any person the right to seek an appointment referred to in paragraph (a);

(c) a party proposes or takes any steps to enter into a scheme, arrangement, agreement or compromise with its creditors or call a meeting of creditors;

(d) a party suspends payment of its debts generally;

(e) a party becomes bankrupt or insolvent within the meaning of the Corporations Act 2001 (Cth) or a party has a bankruptcy petition presented against it; or

(f) an application is made to a court or a resolution is passed or an order is made for the winding up or dissolution of a party or an event occurs that would give any person the right to make an application of this type.

Intellectual Property means all design concepts and materials, copyright, trade marks, patents, operations, software or systems, trade names and domain names, rights in goodwill, rights in Confidential Information or other intellectual property rights, whether under statute, common law, equity, and whether registered or unregistered and including all applications for, and renewals or extensions of, such rights and all similar rights which subsist or will subsist now or in future in any part of the world.

Laws means any applicable rules of common law, principles of equity, international, federal, state and local laws, statutes, rules, regulations, proclamations, ordinances and by-laws and other subordinate legislation, rulings or legal requirements anywhere in the world, including Privacy Laws.

Loss includes any loss, cost, expense or damage, regardless of whether it is:

(a) direct or indirect;

(b) present or future;

(c) fixed or ascertained; or

(d) arising by Law,

including Consequential Loss.

Moral Rights means the right of attribution of authorship, the right not to have authorship falsely attributed and the right of integrity of authorship as defined in the Copyright Act 1968 (Cth) (or equivalent legislation).

Personal Information means data by which a person may be personally identified, including a person's name, postal address, email address, phone number and any other information a person collects, including personal or personally identifiable information under applicable Privacy Laws.

Personnel means a party's directors, officers, employees, agents, consultants, contractors or sub-contractors.

Privacy Laws means applicable privacy data protection and anti-spam laws, rules, regulations, best practices and regulatory guidance, including the Privacy Act 1988 (Cth) and any other equivalent Law.

Project means the concept design and design development project at the premises specified in a SOW.

Receiving Party means a party to this Agreement who obtains Confidential Information of the other party to this Agreement.

Services means the services to be provided by Furnishd to the Client in a SOW.

SOW means a SOW issued under these Terms or as notified to the Client from time to time.

Term has the meaning in clause 2(a).

Terms means these Services Terms and Conditions.

Third Party IP means any Intellectual Property owned or licensed by a third party, including in relation to stock images, designs and floorplans.


18.2 Interpretation

In the interpretation of this Agreement, unless stated otherwise:

(a) a reference to AUD, $A, dollar or $ is to Australian currency;

(b) a reference to a party is to a party to this Agreement and includes the party’s successors and permitted transferees and assigns and if a party is an individual, includes executors and personal legal representatives;

(c) a reference to a person includes a natural person or legal entity;

(d) a reference to time is a reference to time in Victoria, Australia;

(e) if an obligation must be performed or an event must occur on a day that is not a Business Day, the obligation must be performed or the event must occur on or by the next Business Day;

(f) an obligation or liability assumed by, or a right conferred on, 2 or more parties binds or benefits them all jointly and severally;

(g) words such as 'including' or 'for example' do not limit the preceding words;

(h) all grammatical forms of defined terms have a corresponding meaning;

(i) singular includes the plural and vice versa;

(j) a provision of this Agreement must not be construed against a party on the basis that party was responsible for preparing it; and

(k) the main body of this Agreement will prevail to the extent of any inconsistency with any other part of this Agreement.


Last Updated: 1st July 2024