STANDARD TERMS AND CONDITIONS
1. GENERAL
(a) These terms and conditions, including any Proposal (Terms), will apply to all of the Client’s dealings with 3D Kitchen Design, including being incorporated in all proposals, fee agreements, quotes or orders under which 3D Kitchen Design is to provide goods and services to the Client (each a “Proposal” for the purposes of these Terms).
(b) Except in the case of errors or omissions, a Proposal provided to the Client is valid for thirty (30) days only. After this time, the Proposal (including any quotes, fee agreements or furniture pricing) may be subject to change.
(c) The Client will be taken to have accepted this agreement and to be bound by these Terms if the Client accepts a Proposal, or if the Client orders, accepts or pays for any goods or services provided by 3D Kitchen Design, or indicates via email that they accept a Proposal, after receiving or becoming aware of this agreement or these Terms.
(d) In the event of any inconsistency between these standard terms and conditions and the Proposal, these standard terms and conditions will prevail to the extent of such inconsistency, except that any “Special Conditions” in a Proposal will prevail over the standard terms and conditions to the extent of any inconsistency.
2. TERM OF AGREEMENT
This agreement commences on the Commencement Date specified in a Proposal and will continue for the period specified in the Proposal, unless terminated earlier in accordance with clause 20.
3. PRODUCTS AND SERVICES
3.1 GENERAL
(a) In consideration for the payment of the fees set out in the Proposal (Fees), 3D Kitchen Design will provide the Client with the services set out in a Proposal (Services) and the products set out in a Proposal (Products).
(b) Unless otherwise agreed, 3D Kitchen Design may, in its discretion:
(i) not commence work on any Services, and/or not provide Products, until the Client has paid the Deposit and any Fees payable in respect of such Services and Products; and
(ii) withhold delivery of Products or Services until the Client has paid an invoice in respect of such Products or Services.
(c) If 3D Kitchen Designs provides you with a new proposal with a new or changed scope of works for a particular stage of the Services (or additional products requested by you) as set out in Schedule 1 (Additional Proposal), and you accept that Additional Proposal in writing, then these Terms and Conditions will continue to apply to those Products and Services set out in the Additional Proposal.
(d) Where the context permits the terms ‘Products’ and ‘Services’ will be interchangeable when used in this agreement.
3.2 EXISTING CONSTRUCTION
The Client accepts the risk of defects or deficiencies in the relevant premises. 3D Kitchen Design is not required to investigate the suitability, quality or fitness for purpose of existing or proposed building materials, drainage or drainage infrastructure at the relevant premises or site.
4. SERVICES
4.1 SERVICES LIMITED TO DESIGN
(a) The Client acknowledges that 3D Kitchen Design’s Services are limited to design and that 3D Kitchen Design has no specialised knowledge or expertise as to the performance, durability, fitness for purpose or other features as to the use of any Product that may form part of the project.
(b) The Client must use any Recommended Items recommended under this agreement in accordance with the manufacturer’s instructions.
(c) While recommendations are made with all care and diligence, by accepting a recommendation or authorising a part of any recommendation of 3D Kitchen Design, the Client:
(i) confirms that the Client has satisfied themselves as to the suitability of any Product to be installed or provided; and
(ii) accepts any risks (whether they be obvious or not) in following a recommendation by 3D Kitchen Design.
(d) Any drawings provided by 3D Kitchen Design are conceptual in nature and for visual purposes only. Drawings must not be used for architectural or engineering purposes.
4.2 RELEVANT LAWS AND STANDARDS
(a) 3D Kitchen Design will use its best efforts to ensure that the Products and Services comply with any relevant laws, regulations and standards, applicable at the time of the provision of the Products or Services, however 3D Kitchen Design does not make any guarantees that the Services or Products, when implemented or used in a particular manner, will comply with the then applicable laws, regulations and standards (including Food Regulation 2004 and the Design Construction & Fitout of Food Premises Standard). It is ultimately the responsibility of the Client to ensure that the Products and Services are suitable for the Client’s particular requirements (including any requirement of the Client from a third party that the Products or Services meets an industry standard).
(b) Without limiting any applicable law, the Client releases 3D Kitchen Design from any and all liability which may arise in relation to Products or Services not complying with any industry standards, unless otherwise agreed in writing between the parties.
(c) The Client acknowledges and agrees that signing or agreeing to third party documentation does not form part of the Services (including a document provided by a third party that requires 3D Kitchen Design to warrant that Products or Services meet an industry standard). 3D Kitchen Design may refuse to sign or agree to any such documentation.
4.3 VALUE-ADDED SUPPORT SERVICES
(a) 3D Kitchen Design may, from time to time and in its sole discretion, provide value-added support services relating to development applications or complying development certificates (Compliance Documentation), including by referring private certifiers, liaising with or responding to requests from local council or private certifiers, or organising Compliance Documentation for approval on your behalf.
(b) You acknowledge and agree that:
(i) these value-added support services are complimentary and do not form part of the Services provided under this Agreement;
(ii) you are not entitled to any remedy in connection with these value-added support services;
(iii) while 3D Kitchen Design may elect to provide value-added support services relating to Compliance Documentation, you are ultimately responsible for organising Compliance Documentation and for obtaining and maintaining all permits and necessary approvals for compliance with local, state and federal government requirements (Government Approvals); and
(iv) where 3D Kitchen Design has agreed to organise Compliance Documentation on your behalf, 3D Kitchen Design will not submit the final plan for approval until the Client has paid for all outstanding Fees.
5. PRODUCTS AND RECOMMENDED ITEMS
5.1 DELIVERY
(a) Subject to clause 5.1(b) and a Proposal, 3D Kitchen Design will deliver Products to the Delivery Address set out in the relevant Proposal, or any other delivery address agreed in writing between the parties.
(b) If the delivery address for Products is different to the Delivery Address set out in the relevant Proposal, the Supplier may charge the Client additional delivery fees.
(c) Third party courier terms apply to the delivery of the Products to you. Any problems with delivery should be directed to us to troubleshoot the issue. We will endeavour to assist you to ensure your delivery arrives. All delivery times provided to you are estimates only and are subject to postal delays and reasons beyond our control. We do not warrant or make any representation that your Products will be delivered within the times indicated. We will not be liable for any loss or damage suffered as a result of or in connection with late deliveries.
5.2 TITLE AND RISK
(a) Until Products are paid for in full, title in those Products will be retained by 3D Kitchen Design.
(b) Risk in the Products will pass on delivery to the Client. Delivery may not be refused by the Client.
(c) If the Client does not pay for any Products on or before the due date for payment, the Client authorises 3D Kitchen Design, its employees and agents to enter any premises occupied by the Client (or any other place where the Products are located) and use reasonable force to retake possession of the Products without liability for trespass or damage.
(d) 3D Kitchen Design may at its option keep or resell Product retaken from the Client in accordance with this clause 5.
(e) If the Client sells any Products or sells items into which the Products are incorporated before payment in full has been made to 3D Kitchen Design, the Client acknowledges that such sale is made by the Client as bailee for and on behalf of 3D Kitchen Design, to hold the proceeds of sale on trust for 3D Kitchen Design, in an account in the name of 3D Kitchen Design, and must pay that amount to 3D Kitchen Design on demand.
5.3 DESCRIPTIONS
(a) 3D Kitchen Design endeavours to ensure that the descriptions and specifications in relation to the Products and Recommended Items on its website, in catalogues and other materials it supplies to the Client are accurate. However, photographs, drawings, illustrations, weights, dimensions and any other particulars accompanying, associated with or given in a quotation, descriptive literature or a catalogue are based on information provided by manufacturers and suppliers and, as such 3D Kitchen Design does not guarantee that those descriptions and specification are accurate or free from errors or omissions. 3D Kitchen Design reserves the right to make any necessary corrections to the descriptions or specifications without notice.
5.4 RECOMMENDED ITEMS AND AFFILIATES
(a) While 3D Kitchen Design may recommend Recommended Items to the Client as part of 3D Kitchen Design’s provision of Services, 3D Kitchen Design is not responsible for sourcing these Recommended Items for the Client and these Recommended Items will be provided by third party suppliers (Affiliates).
(b) 3D Kitchen Design may refer the Client to Affiliates from which the Client may source the Recommended Items and the Client is expected to engage those Affiliates directly.
(c) The Client acknowledges and agrees that:
(i) they are responsible for sourcing Recommended Items from Affiliates;
(ii) Affiliates are separate entities from 3D Kitchen Design and 3D Kitchen Design does not represent or otherwise act on behalf of any Affiliate;
(iii) 3D Kitchen Design has no control over the content or quality of Recommended Items or any other Affiliate products or services, and 3D Kitchen Design makes no guarantees in relation to those, Recommended Items, products or services provided by Affiliates; and
(iv) 3D Kitchen Design will not be liable for any loss or damage which arises in relation to Recommended Items, or other products or services provided by Affiliates, whether due to incorrect descriptions, specifications, pricing, availability or otherwise.
6. PRODUCT AND SERVICE RETURNS AND EXCHANGES
(a) We do not offer change of mind returns or refunds.
(b) We will provide a full refund of the price paid for a Product if we determine that:
(i) a Product or Service you have ordered was not received by you solely due to failure by us;
(ii) a Product or Service provided to you was not substantially the same as the Product or Service you ordered as displayed or described on our Website solely due to failure by us (subject to reasonable variation as a result of screen display, colour and brightness, and image quality); or
(iii) a Product is faulty or a Service is of unacceptable quality, in accordance with clause 6(c).
(c) (Faulty Products and Services of Unacceptable Quality) The following process applies to any Product you believe to be faulty or Service you believe to be of unacceptable quality, to which the ACL applies to (for reference, this will usually include Products and Services for which the Fees are lower than $40,000). For any Products that the ACL does not apply to, if you believe them to be faulty you should contact the relevant manufacturer.
(i) If you believe your Product is faulty, or a Service is of unacceptable quality, please contact us with a full description of the issue (including images of any Product).
(ii) If we determine that a Product may be faulty, we will request that you send the Product back to us at your cost for further inspection, including any accessories, manuals, documentation or registration shipped with the Product. We reserve the right to further inspection before deeming a Product faulty. In respect of a Service, we reserve the right to inspect any relevant documents, deliverables, associated products or any other materials relevant to determining whether the Services were of unacceptable quality.
(iii) If we determine in our reasonable opinion that a Product is not faulty, or a Service is of acceptable quality, or a Product is faulty due to fair wear and tear, misuse, failure to use in accordance with the manufacturer’s instructions, or failure to take reasonable care, we will refuse your return/refund and, if it’s a Product, send it back to you at your cost.
(iv) If we determine that a Product is faulty, or a Service is of unacceptable quality, you will be credited the full amount paid (including shipping costs, if applicable) and you may request a refund, exchange or store credit. All refunds will be credited back to your original method of payment unless you request otherwise and we approve this request.
(v) If you fail to comply with the provisions of this clause 6(c) in respect of a faulty Product or a Service of unacceptable quality, we may, in our absolute discretion, issue only a partial refund or no refund in respect of that Product or Service.
(vi) Nothing in this clause 6(c) is intended to limit or otherwise affect the operation of any manufacturers’ warranties which you may be entitled to or any of your rights which cannot be excluded under applicable law, including under the ACL.
7. CLIENT OBLIGATIONS
(a) Provide information
(i) The Client must provide 3D Kitchen Design with all documentation, information and assistance reasonably required by 3D Kitchen Design to perform the Services in a timely manner, including but not limited to architectural plans, sewer diagrams and floor plans of the relevant premises.
(ii) Where 3D Kitchen Design has agreed to organise Compliance Documentation on your behalf in accordance with clause 4.2, the Client must provide all documentation, information and assistance reasonably required by 3D Kitchen Design to organise Compliance Documentation in a timely manner.
(iii) The Client warrants the accuracy of any documentation and information provided to 3D Kitchen Design.
(b) Provide access to relevant premises
The Client agrees to provide 3D Kitchen Design with access to the relevant premises to the extent reasonably required by 3D Kitchen Design to perform the Services.
(c) Sign off
For Services that are to be delivered by 3D Kitchen Design in stages, the Client must sign off on each stage of the project and hereby acknowledges that the until it signs off on a completed stage of a project, 3D Kitchen Design will not commence the next stage of the project. 3D Kitchen Design will not be held liable for any delays occasioned by the Client not signing off on a completed stage of a project within a reasonable timeframe or failing to sign off.
(d) Budgeting
The Client must provide to 3D Kitchen Design all information reasonably requested by 3D Kitchen Design relating to the Client’s forecasted budget for a project. The Client must promptly respond to any budget updates provided by 3D Kitchen Design.
8. PAYMENTS
8.1 DEPOSIT
(a) You must pay the Deposit set out in a Proposal prior to any Services being provided.
(b) Subject to clause 20.3(b), the Deposit is non-refundable, non-transferrable and cannot be exchanged for a credit.
(c) You acknowledge and agree that 3D Kitchen Design may, in its absolute discretion, garnish the Deposit where you damage or lose any items, or you cancel the Services.
8.2 FEES
(a) The Client must pay the Fees in the amounts, at the times and via the payment method set out in the Proposal or as otherwise agreed in writing.
(b) The Client acknowledges and agrees that payment for any Deposits and Fees may take 2-5 Business Days to be processed, and that 3D Kitchen Design will not be liable for any delays in the provision of any Services as a result of such processing delays.
8.3 TIME FOR PAYMENT
Unless otherwise agreed in writing:
(a) if 3D Kitchen Design issues an invoice to the Client, payment must be made by the time(s) specified in such invoice; and
(b) in all other circumstances, the Client must pay for all goods and services within 7 days of receiving an invoice for amounts payable.
8.4 LATE PAYMENTS
(a) If the Client does not pay 3D Kitchen Design the Fees on or before they are due in accordance with clause 8.3, then, without limiting any of 3D Kitchen Design’s other rights under this agreement (or otherwise at law or in equity), interest will accrue and the Client must pay 3D Kitchen Design that interest at the rate of 10% per month, calculated on a daily basis, on each amount outstanding, from the due date for payment set out on the invoice to the date on which the payment is received by 3D Kitchen Design.
(b) 3D Kitchen Design reserves the right to stop performing the Services for the Client if no payment is received within 14 days from the date the invoice is issued.
(c) If the Client does not make payment after a further 30 days, 3D Kitchen Design reserves the right to refer the debt to third party debt collectors. All costs and expenses charged by the third-party debt collectors for their services will be paid by the Client.
8.5 EXPENSES
Unless otherwise agreed in writing, the Client will bear:
(a) all travel, accommodation, media and related expenses reasonably incurred by 3D Kitchen Design in connection with the Services;
(b) any third party costs incurred by 3D Kitchen Design in the course of providing the Services may be billed to the Client, unless specifically otherwise provided for in the Proposal; and
(c) all costs associated with obtaining Compliance Documentation or Government Approvals.
8.6 GST
Unless otherwise indicated, amounts stated in a Proposal do not include GST. In relation to any GST payable for a taxable supply by 3D Kitchen Design, the Client must pay the GST subject to 3D Kitchen Design providing a tax invoice.
8.7 CARD SURCHARGES
3D Kitchen Design reserves the right to charge credit card surcharges in the event payments are made using a credit, debit or charge card (including Visa, MasterCard, American Express or Diners Club).
9. ESTIMATED DEADLINES AND TIMING
(a) As part of the Proposal or in the course of 3D Kitchen Design performing the Services, the parties may agree on a schedule for providing certain Services, including estimated dates of completion, deadlines or schedules (Deadlines) which may be stated in the Proposal or elsewhere.
(b) 3D Kitchen Design will use its best efforts to meet these Deadlines, however may not always be able to do so and the Client agrees that any Deadlines the parties agree to are estimates only and non-binding on 3D Kitchen Design.
(c) 3D Kitchen Design reserves the right to revise Deadlines in the event that the delay is caused by the Client’s failure to provide timely feedback or other information reasonably requested by 3D Kitchen Design in order to perform the Services. 3D Kitchen Design will not be liable for any loss, cost expense, damage or any other amount that the Client may incur or suffer howsoever arising from any failure to meet a Deadline.
10. CHANGES
(a) The Client may request reasonable changes to the Services (Changes) however 3D Kitchen Design is not obliged to carry out the Changes.
(b) The Client must request any Changes in writing and give 3D Kitchen Design at least 3 Business Days to respond to such a request.
(c) Based on the Changes requested by the Client, 3D Kitchen Design reserves the right to:
(i) provide an Additional Proposal (as provided in Schedule 1 to this agreement) for additional services; and
(ii) charge the Change Fees set out in the Proposal or as otherwise communicated to, or agreed with, the Client by 3D Kitchen Design (Change Fees).
(d) Unless otherwise agreed in writing, 3D Kitchen Design may at its discretion extend or modify any Delivery Schedule or deadlines for the Services as may be reasonably required by such Changes.
11. SUBCONTRACTING
(a) 3D Kitchen Design may subcontract any aspect of providing the Services and the Customer hereby consents to such subcontracting.
(b) 3D Kitchen Design will use reasonable endeavours to ensure that such subcontractors comply with the provisions of this agreement, however a breach by such subcontractors of this agreement will not be deemed a breach by 3D Kitchen Design.
12. THIRD PARTY GOODS AND SERVICES
(a) Any Services that requires 3D Kitchen Design to acquire goods and services supplied by a third party on behalf of the Client may be subject to the terms & conditions of that third party (Third Party Terms), including ‘no refund’ and cancellation policies.
(b) The Client agrees to any Third Party Terms applicable to any goods and services supplied by a third party that the Client or 3D Kitchen Design acquires as part of the Services and 3D Kitchen Design will not be liable for any loss or damage suffered by the Client in connection with such Third Party Terms.
13. ACKNOWLEDGEMENTS
Unless otherwise agreed in writing:
(a) all displays or publications of any Services provided to the Client as part of the Services must bear an acknowledgement and/or a copyright notice including 3D Kitchen Design’s name in the form, size and location, if directed by 3D Kitchen Design; and
(b) 3D Kitchen Design retains the right to describe the Services and reproduce, publish and display any deliverables in 3D Kitchen Design’s portfolios, websites and across all social media for the purposes of recognition or professional advancement, and to be credited with authorship of the Services in connection with such uses; and
(c) The Client hereby warrants that during and/or at the end of the Term of this agreement, it will allow 3D Kitchen Design to take photographs or video content of the relevant premises and any deliverables under this agreement for the purpose of clause 13(b).
14. RELATIONSHIP
(a) The parties acknowledge that 3D Kitchen Design is an independent contractor and not the Client’s employee. Unless specified otherwise in this agreement, 3D Kitchen Design is not the Client’s agent and has no authority to bind the Client or act on the Client’s behalf at any time.
(b) Where the Services require 3D Kitchen Design to engage or direct a trade contractor or purchase goods on the Client’s behalf, the Client acknowledges that in doing so 3D Kitchen Design is at all times acting solely as the Client’s agent.
15. INTELLECTUAL PROPERTY
15.1 CLIENT CONTENT
(a) The Client grants to 3D Kitchen Design (and its subcontractors, employees and agents) a non-exclusive, royalty free, non-transferable, worldwide and irrevocable licence to use the Client Content to the extent reasonably required to perform any part of the Services.
(b) The Client:
(i) warrants that 3D Kitchen Design’s use of Client Content as contemplated by this Agreement will not infringe any third-party Intellectual Property Rights; and
(ii) will indemnify 3D Kitchen Design from and against all losses, claims, expenses, damages and liabilities (including any taxes, fees or costs) which arise out of such infringement or a claim of such an infringement.
15.2 DEVELOPED IP
(a) All Developed IP will be solely and exclusively owned by 3D Kitchen Design.
(a) 3D Kitchen Design grants to the Client a non-exclusive, royalty free, non-transferable and revocable licence to use 3D Kitchen Design IP and any Developed IP to the extent required for the Client to use, enjoy the benefit of or exploit the Services and/or the Deliverables.
(b) Unless otherwise agreed in writing by 3D Kitchen Design or in this clause 15.3, the Client will not acquire Intellectual Property Rights in any 3D Kitchen Design IP under this Agreement or as part of receiving the Services.
15.4 DEFINITIONS
For the purposes of this clause 15:
(a) “3D Kitchen Design IP” means all Material owned or licensed by 3D Kitchen Design that is not Developed IP and any Intellectual Property Rights attaching to that Material.
(b) “Client Content” means any Material supplied by the Client to 3D Kitchen Design under or in connection with this agreement, including any Intellectual Property Rights attaching to that Material.
(c) “Developed IP” means the Deliverables and any other Material produced by 3D Kitchen Design in the course of providing the Services, either alone or in conjunction with the Client or others, and any Intellectual Property Rights attaching to that Material or the Deliverables.
(d) “Intellectual Property Rights” means any and all present and future intellectual and industrial property rights throughout the world, including copyright, trade marks, designs, patents or other proprietary rights, confidential information and the right to have information kept confidential, or any rights to registration of such rights whether created before or after the start date set out in a Proposal, whether registered or unregistered.
(e) “Material” means tangible and intangible information, documents, reports, drawings, designs, selections, software, inventions, concepts, data and other materials in any media whatsoever.
16. CONFIDENTIALITY AND PRIVACY
16.1 CONFIDENTIAL INFORMATION
(a) The parties undertake that they and their respective personnel will not, without the prior written consent of the other party:
(i) disclose the Confidential Information of the other party to any person; or
(ii) use the Confidential Information of the other party for their own or a third party’s benefit.
(b) Each party must take all reasonable steps to ensure that the Confidential Information of the other party is only disclosed to such of its personnel as require that information in order to enable the performance of this agreement.
(c) In the event that either party is requested or becomes legally compelled to disclose any of the other party’s Confidential Information, that party will (subject to any regulatory restrictions) provide the other party with prompt notice so that the other party may seek such protective order or other appropriate remedy as it thinks appropriate.
(d) In this clause 16.1, “Confidential Information” means information about or provided by a party to the other party that is by its nature confidential information, is designated by the owning party as confidential, or the other party knows or ought to know is confidential, but does not include information which is or becomes, without a breach of confidentiality, public knowledge.
16.2 PRIVACY
(a) The Client acknowledges and agrees to comply with the Privacy Act 1988 (Cth), including the Australian Privacy Principles, and any other relevant laws as they exist from time to time.
(b) The Client must notify 3D Kitchen Design if it receives a request for access to or correction of any personal information from any person (including the Office of the Australian Information Commissioner) prior to providing such access to or correcting the information.
17. WARRANTIES
(a) To the maximum extent permitted by applicable law, all express or implied representations and warranties not expressly stated in this agreement are excluded.
(b) Nothing in this agreement is intended to limit the operation of the Australian Consumer Law contained in the Competition and Consumer Act 2010 (Cth) (ACL). Under the ACL, the Client may be entitled to certain remedies (like a refund, replacement or repair) if there is a failure with goods or services provided that are subject to the ACL.
18. LIABILITY
(c) (Limitation of liability) To the maximum extent permitted by applicable law, the maximum aggregate liability of 3D Kitchen Design to the Client in respect of loss or damage sustained by the Client under or in connection with this agreement is limited to the total Fees paid to 3D Kitchen Design by the Client in the 6 months preceding the first event giving rise to the relevant liability.
(d) (Indemnity) The Client agrees at all times to indemnify and hold harmless 3D Kitchen Design and its officers, employees and agents (“those indemnified“) from and against any loss (including reasonable legal costs) or liability incurred or suffered by any of those indemnified where such loss or liability was caused or contributed to by the Client or the Client’s officers’, employees’ or agents’:
(i) breach of any term of this agreement; or
(ii) negligent, fraudulent or criminal act or omission.
(e) (Consequential loss) The Service Provider will not be liable for any incidental, special or consequential loss or damages, or damages for loss of data, business or business opportunity, goodwill, anticipated savings, profits or revenue arising under or in connection with this agreement or any goods or services provided by 3D Kitchen Design, except to the extent this liability cannot be excluded under the Competition and Consumer Act 2010 (Cth) or any other applicable law.
19. DISPUTE RESOLUTION
(a) The parties must, without delay and in good faith, attempt to resolve any dispute which arises out of or in connection with this agreement prior to commencing any proceedings.
(b) If a party requires resolution of a dispute it must immediately submit full details of the dispute to the chief executive officer of the other party.
(c) The parties acknowledge and agree that compliance with this clause 19 is a condition precedent to any entitlement to claim relief or remedy, whether by way of proceedings in a court of law or otherwise in respect of such disputes, except:
(i) in the case of applications for urgent interlocutory relief; or
(ii) a breach by another party of this clause 19.
20. TERMINATION
20.1 TERMINATION FOR CONVENIENCE
Either party may terminate this agreement for convenience at any time by providing 30 days’ notice to the other party.
20.2 TERMINATION BY 3D KTCHEN DESIGN
3D Kitchen Design may terminate these terms or any Proposal in whole or in part immediately by written notice to the Client if:
(a) the Client is in breach of any term of these terms or any part of a Proposal; or
(b) the Client becomes subject to any form of insolvency or bankruptcy administration.
20.3 TERMINATION BY CLIENT
(a) The Client may terminate this agreement immediately:
(i) if 3D Kitchen Design has committed a material breach of this agreement or a Proposal and has failed to remedy the breach within 30 days written notice by the Client; or
(ii) 3D Kitchen Design becomes subject to any form of insolvency or bankruptcy administration.
(b) If the Client terminates this agreement in accordance with clause 20.3(a), then the Deposit will not be refunded to the Client (unless otherwise agreed by 3D Kitchen Design, at its absolute discretion, to provide a partial refund of the Deposit).
20.4 EFFECT OF TERMINATION
Upon termination of this agreement, the Client must promptly pay:
(a) payments required by 3D Kitchen Design’s suppliers to discontinue their work (including any cancellation or restocking fees payable by Third Party Terms); and
(b) usual time charges for the work already performed up to the termination date.
20.5 SURVIVAL
Any provision of these terms (including in a Proposal) which, by its nature, would reasonably be expected to be performed after the termination, shall survive and be enforceable after such termination.
21. FORCE MAJEURE
(a) If a party (Affected Party) becomes unable, wholly or in part, to carry out an obligation under this agreement (other than an obligation to pay money) due to a Force Majeure Event, the Affected Party must give to the other party prompt written notice of:
(i) reasonable details of the Force Majeure Event; and
(ii) so far as is known, the probable extent to which the Affected Party will be unable to perform or be delayed in performing its obligation.
(b) Subject to compliance with clause 21(a) the relevant obligation will be suspended during the Force Majeure Event to the extent that it is affected by the Force Majeure Event.
(c) The Affected Party must use its best endeavours to overcome or remove the Force Majeure Event as quickly as possible.
(d) For the purposes of this agreement, a ‘Force Majeure Event’ means any:
(i) act of God, lightning strike, meteor strike, earthquake, storm, flood, landslide, explosion or fire;
(ii) strikes or other industrial action outside of the control of the Affected Party;
(iii) war, terrorism, sabotage, blockade, revolution, riot, insurrection, civil commotion, epidemic, pandemic; or
(iv) any decision of a government authority in relation to COVID-19, or any threat of COVID-19 beyond the reasonable control of the Affected Party, to the extent it affects the Affected Party’s ability to perform its obligations.
22. GENERAL
(a) (Governing law) This agreement is governed by the law applying in New South Wales, Australia.
(b) (Jurisdiction) Each party irrevocably submits to the exclusive jurisdiction of the courts of New South Wales, Australia and courts of appeal from them in respect of any proceedings arising out of or in connection with this agreement. Each party irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.
(c) (Amendments) These Terms may only be amended by 3D Kitchen Design in accordance with the Terms.
(d) (Severability) Any term of this Agreement which is wholly or partially void or unenforceable is severed to the extent that it is void or unenforceable. The validity and enforceability of the remainder of this Agreement is not limited or otherwise affected.
(e) (Waiver) No party to these Terms may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.
(f) (Further acts) Each party must promptly do all further acts and execute and deliver all further documents required by law or reasonably requested by another party to give effect to these Terms.
(g) (Assignment) A party cannot assign, novate or otherwise transfer any of its rights or obligations under these Terms without the prior written consent of the other party.
(h) (Entire Agreement) These Terms embody the entire agreement between the parties and supersede any prior negotiation, conduct, arrangement, understanding or agreement, express or implied, in relation to the subject matter of the Terms.
(i) (Interpretation) In these Terms, the following rules of interpretation apply:
(i) (singular and plural) words in the singular includes the plural (and vice versa);
(ii) (gender) words indicating a gender includes the corresponding words of any other gender;
(iii) (defined terms) if a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;
(iv) (person) a reference to “person” or ”you” includes an individual, the estate of an individual, a corporation, an authority, an association, consortium or joint venture (whether incorporated or unincorporated), a partnership, a trust and any other entity;
(v) (party) a reference to a party includes that party’s executors, administrators, successors and permitted assigns, including persons taking by way of novation and, in the case of a trustee, includes any substituted or additional trustee;
(vi) (these Terms) a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure is a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure to or of these Terms, and a reference to these Terms includes all schedules, exhibits, attachments and annexures to it;
(vii) (document) a reference to a document (including these Terms) is to that document as varied, novated, ratified or replaced from time to time;
(viii) (headings) headings and words in bold type are for convenience only and do not affect interpretation;
(ix) (includes) the word “includes” and similar words in any form is not a word of limitation; and
(x) (adverse interpretation) no provision of this agreement will be interpreted adversely to a party because that party was responsible for the preparation of this agreement or that provision