I

4.  CLIENT OBLIGATIONS

 

Without limitation to the Client’s other obligations under this Agreement, the Client agrees to:

(a)  comply with all applicable laws and regulations, including obtaining the relevant insurance, permits, licences and any approvals required for the provision of the Services and any Works;

(b)  adhere to the Client Conduct, and acknowledges that a breach of this provision will amount to grounds for termination pursuant to clause 10.2 (d) of this Agreement;

(c)  provide all necessary instructions and information for the development of the Project brief, including details of the Client’s budget and timeframe for the completion of the Project, accurate measurements, dimensions, floor plans, photos, videos and/or any other information as required or requested by Rebecca Wilkins;

(d)  provide Rebecca Wilkins suitable Client Content and if deemed unsuitable by Rebecca Wilkins or not provided within a reasonable time, the Client acknowledges additional fees may be payable.

(e)  respect Rebecca Wilkins' Communication Policy, co-operate and work reasonably with Rebecca Wilkins, and provide clear and reasonable Direction, instruction and guidance within a reasonable time;

(f)  review and approve the Design Materials, check plans and schedules and respond to communication in a timely manner or within any time periods reasonably required by Rebecca Wilkins; and

(g)  provide access to the Client System and the Client’s Project Site as reasonably required by Rebecca Wilkins to provide the Services, including during the construction period.

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5.  PRODUCT ORDERING & SOURCING

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5.1  Specifications and Shopping Lists 

(a)  Rebecca Wilkins may provide samples of products, finishes and materials where possible however, due to the intrinsic or other variation of some products, these samples are indicative only and may not be a true or complete representation of them.

(b)  The Client acknowledges and agrees that:

       (i)    any product images or colours on any schedules or vision boards provided by Rebecca Wilkins are a guide and indicative only and that they may not be a true or complete representation of the specified product;

       (ii)    changes in natural and other materials used in the Project, such as wood, lacquer, glass, fabric or leather may change in appearance or dimension over time and/or following exposure to use or climatic conditions, and therefore there may be variations in tones or slight differences in their colour and/or appearance in the completed Project or any Works;

       (ii)    Rebecca Wilkins makes no warranties as to the suitability of any colours or products Rebecca Wilkins proposes or recommends as part of the Services and that it is in the Client’s discretion whether to proceed with the purchase or use of any colour or product; and

       (iv)   Rebecca Wilkins is not liable if the Client does not wish to proceed with the use of any colour or product or determines after using it in any location that it is unsuitable for any reason whatsoever.

(c)  Rebecca Wilkins may provide the Client with a shopping list with a selection of goods (which may be comprised in one or more Product Quotes or provided separately) which may specify a selection of goods for purchase from specific suppliers. Rebecca Wilkins will take all reasonable steps to specify goods that Rebecca Wilkins believes are available at the time of provision of the shopping list but does not guarantee the availability of any goods in the shopping list. Rebecca Wilkins may suggest alternative goods (or suppliers) where goods in the shopping list are found to be unavailable or where the Client so requests subject to any applicable terms and conditions set out in the Proposal which may include payment of an additional Fee.

(d)  Rebecca Wilkins may include affiliate links in the shopping list and/or Product Quote provided by which may mean Rebecca Wilkins earns a commission if the Client clicks on or purchases goods or services via the affiliate links. The Client acknowledges and agrees that it remains their personal responsibility to investigate whether any affiliate offers are right for the Client and that they will not rely on any recommendation, reference or information provided by Rebecca Wilkins, and they must rely upon their own research in deciding whether to purchase any such goods or services.

(e)  Rebecca Wilkins does not represent or guarantee that the products will be free from allergens or defects. The Client agrees they are responsible for checking the labels of the products prior to use and consult a medical professional as to whether there may be any adverse reactions to the ingredients as stated on the product labels.

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5.2  Quotes and Lead Times

(a)  Quotes for products are valid for the stipulated time and are based on quantities outlined. The Client acknowledges any change to products or delays in processing the order may affect pricing and products may need to be re-quoted.

(b)  All lead times are listed at the time of presenting the quotation and are as accurate as possible. Whilst Rebecca Wilkins endeavours to meet anticipated lead times Rebecca Wilkins will not be responsible for changes in lead times where delays occur due to circumstances outside their control or due to delays in placing orders or availability.

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  5.3  Orders and Purchases

(a)  The Client is responsible for placing all orders for purchases of goods listed in any shopping list provided by Rebecca Wilkins unless Rebecca Wilkins agrees to order or purchase some or all the goods on behalf of the Client under this Agreement.

(b)  Rebecca Wilkins may agree to place all or some orders for goods in connection with the Project, as may be set out in the shopping list and/or Product Quote provided by Rebecca Wilkins, with third-party suppliers on behalf of the Client, as provided in the Proposal.

(c)  All orders placed by Rebecca Wilkins will be confirmed by the receipt of the third-party supplier’s invoice or by Rebecca Wilkins' invoice for payment which binds the Client to the terms of the order.

(d)  Rebecca Wilkins will not commit to the purchase of any goods from any third-party suppliers on behalf of the Client until the Client has paid to Rebecca Wilkins or third-party supplier, as applicable, the required upfront Deposit or full payment for the purchase and any delivery fees.

(e)  The Client agrees they are responsible for all Deposits (if applicable), costs and payments of all goods sourced from third-party suppliers and contractors by Rebecca Wilkins on their behalf, including invoices issued directly by the supplier.

(f)  The Client acknowledges that a failure to pay the Deposits or invoices for the purchase of goods may cause delay to the Project Timeline and Completion and/or have other consequences for which Rebecca Wilkins will not be liable.

(g)  The Client accepts all risk and responsibility for the goods upon placement of an order for the goods irrespective of whether the order has been placed by Rebecca Wilkins on their behalf and agrees that any orders that are not fulfilled are the responsibility of the supplier.

(h)  The Client acknowledges that warranties on all goods and services provided by third parties are determined by the supplier of the goods or services or in accordance with the standard statutory warranties applicable.

(i)  The Client is responsible for requesting any care instructions for goods ordered by Rebecca Wilkins on their behalf that have been omitted within twenty-four (24) hours of delivery of the goods and is liable for damage that is inconsistent with proper care instructions.

(j)  The Client acknowledges and agrees Rebecca Wilkins is not liable or responsible for any costs, expenses, loss or claims incurred by the Client as a result of, or in connection with, any third-party supplier becoming insolvent, bankrupt or going into liquidation, including any monies paid to them by the Client or by Rebecca Wilkins on behalf of the Client.

(k)  The Client acknowledges and agrees Rebecca Wilkins is entitled to charge a procurement Fee or commission on all outsourced services or items sourced by Rebecca Wilkins, on the cost of trade prices, on all purchases as specified in the shopping list or any Product Quote and any subsequent quotes, plus Fees for all postage, courier and other delivery, freight and storage whether included in the original shopping list or Product Quote or provided subsequently.

(l)  The Client acknowledges Rebecca Wilkins is not required to pass on, share or disclose any trade discounts to the Client and Rebecca Wilkins is entitled to do so at their sole discretion.

(m)  Where applicable to the Services, the Client authorises Rebecca Wilkins to install permanent fixings to hang artwork, mirrors and/or other items at the Project Site, which will remain after removal of the artwork, mirrors and/or items.

 

5.4  Cancellations of Orders, Repairs, Returns and Refunds

(a)  The Client agrees, subject to clause 5.4 (b), that all goods which have been ordered and delivered, including any custom furniture, cabinetry or joinery supplied by Rebecca Wilkins or any third-party supplier (if applicable), can only be returned, exchanged or refunded in accordance with Rebecca Wilkins' or third-party supplier’s terms and conditions (and where applicable their discretion) which may include re-stocking fees, handling fees, loss of Deposit amounts or other losses, for which Rebecca Wilkins is not liable.

(b)  Any custom and made-to-order furniture, cabinetry or joinery or other goods, whether supplied by Rebecca Wilkins or any third-party supplier, which require on-site sighting of samples and sign off by the Client ahead of purchase are not eligible for cancellation or return.

(c)  In the case of faulty or damaged goods ordered by Rebecca Wilkins on behalf of the Client, the Client must notify Rebecca Wilkins or the supplier within twenty-four (24) hours via email with images where possible. If the Client requests Rebecca Wilkins' assistance in relation to such goods, Rebecca Wilkins will do all things reasonably required but the repair, replacement or refund of damaged goods is at the sole discretion of the supplier and any terms of warranty and Rebecca Wilkins cannot be held liable in these circumstances.

(d)  Services provided by Rebecca Wilkins in response to any request by the Client for assistance with the return of any goods, including for repair, replacement or refund, or cancellations of any orders for goods, may be subject to payment of additional Fees as provided in the Proposal.

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5.5  Delivery

(a)  The Client agrees Rebecca Wilkins is entitled to charge Fees for any Services provided by Rebecca Wilkins with respect to delivery and/or storage of purchased goods, and to pass on any freight charges, delivery costs, and duties or taxes on imported goods.

(b)  Rebecca Wilkins may agree, where requested by the Client, to deliver or arrange for direct delivery to the Project Site and/or to provide storage services for goods ordered by Rebecca Wilkins on behalf of the Client, in which case the terms and conditions for such delivery and/or storage shall be as provided in the Proposal.

(c)  The Client is responsible for advising access limitations at the time of placing the order for goods as deliveries that cannot take place due to access limitations are the responsibility of the Client. If delivery is not possible at all due to access limitations (including if a goods lift is too small or stair access is too tight), the Client acknowledges that the goods may be taken back to the supplier and the Client may incur a return-to-warehouse delivery charge and/or a restocking fee.

(d)  Unless requested or noted, delivery will be quoted assuming ground floor site location or accessibility via a suitable goods lift. It is the responsibility of the Client to ensure that all relevant details are provided for delivery quotations and that, if applicable, goods lifts are ready to take delivery at the agreed delivery time.

(e)  If the Client is either not ready to accept the goods or delays the receipt of the goods as per the scheduled delivery and installation dates, the Client acknowledges there may be additional costs incurred such as a return-to-warehouse delivery charge and a re-delivery charge, with charges subject to the supplier’s terms.

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6.  PAYMENT

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6.1  Fees and Expenses

(a)  The Client agrees to pay Rebecca Wilkins:

       (i)    all Fees with respect to the Services pursuant to the Scope of Works as outlined in the Proposal;

       (ii)   all other Fees with respect to the Services including any Travel Fees, Consultation Fees and Fees for any Additional Services and/or Additional Consultations; and

       (iii)  all expenses and other amounts payable for goods, services, and other items, as provided under this Agreement and invoiced under clause 6.3.

(b)  Where Fees (including any Deposit, the full Fees for the Project or the Fees for any phase or stage of the Project), are required to be paid upfront or in advance, Rebecca Wilkins shall be under no obligation to commence all or the applicable Service until the required payment is received by Rebecca Wilkins.

(c)  The Client agrees that where Services are charged on a time basis the applicable Hourly Rate applies unless otherwise specified in the Proposal or advised prior to the delivery of the Services by Rebecca Wilkins.

(d)  Rebecca Wilkins may, at their sole and absolute discretion, waive the Fee for the Initial Design Consultation subject to the engagement of the Services under this Agreement.

(e)  The Client agrees no Deposit refunds are provided once research, resources allocation, or Design Work has commenced on a Project and any refunds will be at the sole discretion of Rebecca Wilkins.

(f)  The Client acknowledges that any Project total Fees, or phase, stage and other amounts outlined in the Proposal, unless specified as a fixed cost, are estimates only and may differ from the final amounts invoiced to the Client and/or the amounts required to pay for the Services. If Additional Services and/or further time are required to complete the Services pursuant to the Scope of Works, Rebecca Wilkins will notify the Client and provide them with an update of the estimated Fees, which the Client must approve in writing before the updated Scope of Works can commence.

(g)  The Client agrees that if Services exceed four (4) calendar weeks as outlined in the Proposal, the Client will pay the balance of Project Fees in instalment payments of fifty percent (50%), payable each month (or as agreed with Rebecca Wilkins) until Project Completion, with any outstanding amount payable in full upon Completion.

(h)  The Client will pay or reimburse Rebecca Wilkins for all out-of-pocket expenses incurred from carrying out the Services with prior consent sought for expenses exceeding two hundred dollars ($200.00) (individually and/or in the aggregate as applicable).

(i)  Where for any reason, Rebecca Wilkins is required by the Client to travel such kilometres or more from their studio or such other distance stipulated in the Proposal as the distance/s for incurring a Travel Fee, in addition to any other Fees payable the Travel Fee may be paid or reimbursed by the Client as agreed.

(j)  If the Client requires Rebecca Wilkins to travel interstate from their studio for any reason the Client shall be charged such Fees as provided in the Proposal and all applicable flight fares, accommodation, car hire and other travel costs and expenses shall be paid or reimbursed by the Client.

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6.2  Goods and Services Tax

(a)  Unless otherwise specified, all Fees including procurement Fees, trade commissions and any other ancillary expenses are exclusive of GST, and where GST is applicable it will be applied as indicated in the invoice.

(b)  If GST is payable in respect of any goods or services provided under or in relation to this Agreement, the Client must pay to Rebecca Wilkins an amount equal to the GST payable on the goods or services (GST Amount). The GST Amount is payable by the Client in addition to, and at the same time as, any consideration for the goods or services.

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6.3  Invoices

(a)  Invoices shall be issued at each stage (as applicable) or other basis referred to in the Proposal or otherwise determined by Rebecca Wilkins and may constitute payment of Fees and other amounts in advance or arrears via email.

(b)  The Client agrees to pay all correctly rendered invoices issued by Rebecca Wilkins within seven (7) days of the date of the invoice (or by such other due date stipulated or provided for in the invoice) including GST where applicable, and all subsequent invoices, inclusive of all procurement Fees and trade commission’s payable and expenses incurred at that stage or time by EFT direct deposit to Rebecca Wilkins' bank account and/or as otherwise set out in the invoice. Subject to this clause 6.3, the Client must pay all invoices in full without set-off or deduction.

(c)  If the Client disputes any invoice issued under this clause 6.3, the Client must notify Rebecca Wilkins of the amount in dispute and the reason for the dispute by the invoice due date and pay any amounts not in dispute until the dispute is resolved.

(d)  Where any invoice is not paid by the due date, Rebecca Wilkins may cease or suspend the provision of all or any Services and:

       (i)    if not paid within fifteen (15) days of the invoice date, apply a late administration fee as reasonably determined by Rebecca Wilkins;

       (ii)   if not paid within thirty (30) days of the date of invoice, incur an additional fee equivalent to seven percent (7%) of the Project amount for each week the payment is outstanding; and

       (iii)   if not paid for more than thirty (30) days from the invoice date or the Client expressly states refusal to pay, the Client will be in default, unless otherwise agreed between Rebecca Wilkins and the Client.

(e)  Rebecca Wilkins reserves the right to refuse Completion or delivery of any Services until past due balances are paid. Rebecca Wilkins shall not be obliged to release the Design Materials unless and until Rebecca Wilkins has received full payment of the Fees for the Project and all other expenses and amounts payable under this Agreement. Rebecca Wilkins may retain the Design Materials at any time as security until payment of all amounts due and owing have been paid and all just claims against the Client are satisfied.

(f)  Rebecca Wilkins is entitled to charge interest calculated daily on all amounts outstanding from the invoice due date until the date payment is made at the rate equivalent to the Cash Rate Target of the Reserve Bank of Australia as at the date of the invoice, and after sixty (60) days to increase such interest rate by up to five percent (5%). Rebecca Wilkins is also entitled to charge administration Fees for Rebecca Wilkins' time in seeking payment of outstanding amounts and to take an action for recovery of the debt and to claim costs.

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6.4  Refunds

(a)  Rebecca Wilkins reserves the right to refuse or grant refunds for the Services in accordance with the Australian consumer law under the Competition and Consumer Act 2010 (Cth). Any requests by the Client for refunds must be detailed in writing and will only be considered when options for remedies or replacements have been exhausted.

(b)  Fixed fee services, or services which require upfront payment are non-refundable pursuant to clause 6.1 (e), regardless of whether the Client proceeds with all or some of the Services.

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7.  CONFIDENTIAL INFORMATION AND PRIVACY

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7.1  Obligations with Respect to Confidential Information

A recipient of confidential information:

(a)  may use confidential information of the discloser only for the purposes of this Agreement;

(b)  must keep confidential all confidential information of the discloser except:

       (i)    for disclosure permitted under this clause 7; and

       (ii)   to the extent (if any) the recipient is required by law to disclose such confidential information; and

       (iii)   must destroy or return all confidential information immediately upon request.

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7.2  Privacy

Rebecca Wilkins agrees to comply with the Privacy Act 1988 (Cth), all other applicable privacy laws and such other data protection laws as may be in force from time to time which regulate the collection, storage, use and disclosure of information that can identify individuals or make them reasonably identifiable (Personal Information) in relation to all Personal Information of the Client collected by Rebecca Wilkins, to the extent that Rebecca Wilkins is legally obligated to comply with these laws.

 

8.  INTELLECTUAL PROPERTY

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8.1  Ownership

(a)  The Client acknowledges Rebecca Wilkins owns all intellectual property rights in the Design Materials.

(b)  Upon Rebecca Wilkins receiving full payment of the Fees for the Project and all other expenses and amounts payable under this Agreement and Rebecca Wilkins releasing the Design Materials, Rebecca Wilkins grants the Client a royalty-free, irrevocable, worldwide, non-exclusive licence to use the Design Materials strictly for the Approved Purpose and Project, but without any rights to grant a sub-licence, assign the licence or re-sell, share, or commercially exploit the Design Materials.

(c)  The Client will attribute Rebecca Wilkins as the correct author of the Design Materials.

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8.2  Media Consent and Releases

The Client hereby acknowledges and agrees:

(a)  to authorise access for Rebecca Wilkins to the Project Site during and upon Completion of the Project and for such reasonable period following Completion, to document the Design Work;

(b)  Rebecca Wilkins is authorised to publish photographs and reviews of the Design Work and use it in print, online and digital, publications, platforms and mediums for marketing and promotion, and the Client agrees to release and hold harmless Rebecca Wilkins from any reasonable expectation of privacy or confidentiality (regardless if names and specific locations have been withheld) or from liability for any claims in connection with the foregoing and understands there is no financial compensation of any type; and

(c)  Rebecca Wilkins is responsible for any costs related to the photography and agrees to credit any relevant third parties as required.

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8.3  Reviews and Testimonials

(a)  The Client agrees that prior to publishing a review or any comments online regarding Rebecca Wilkins, the Business or Services they will consider the potential implications under the Competition and Consumer Act 2010 (Cth) and the Defamation Act 2005 (Qld) of making false and/or misleading statements and the potential for a claim for damages and other remedies where a person’s reputation has been harmed by the publication of defamatory matter.

(b)  The Client agrees that they are prohibited from publishing a review on any public forum if this Agreement has been terminated for breach and that they will directly raise any disputes or feedback with Rebecca Wilkins and acknowledges that such disputes and/or feedback may be subject to the obligations of confidentiality under clause 7.1.

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9.  LIABILITY

 

9.1  Liability of Rebecca Wilkins

To the maximum extent permitted by law;

(a)  Rebecca Wilkins, its officers, employees, affiliates, agents, and subcontractors shall not be liable, whether in contract, tort, equity, under statute or otherwise for any:

       (i)    loss or damage arising from, or in connection with the Services or the Project not being completed within the Project Timeline unless the delay is caused by the negligent act or omission of Rebecca Wilkins;

       (ii)   loss or damage loss arising from, or in connection with the Client’s failure to provide Client Content or approve the Design Materials within a reasonable time, or failure to use any of the Services or for any other claim related in any way to the Client’s use of or reliance on the Services or the Design Materials, platforms and/or content or designs or drawings of Rebecca Wilkins, including, but not limited to any errors or omissions or any loss or damage of any kind incurred as a result of the use of any content posted, transmitted or otherwise made available via the Services or any consequences which result from or relate to any alterations made by or on behalf of the Client by any third party to the approved and signed off Design Materials; and

       (iii)   loss of profit, revenue, goodwill, chance, contract or opportunity, special or punitive damages, and any other indirect or consequential loss howsoever arising under or in connection with this Agreement; and

(b)  the total liability of Rebecca Wilkins whether in contract, tort, equity, under statute or otherwise under or in connection with, this Agreement is limited to an amount equal to the Fees received by Rebecca Wilkins under this Agreement, and in any event shall not exceed the available proceeds of the professional indemnity and/or public liability insurance coverage of Rebecca Wilkins at the relevant time.

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9.2  Client Indemnity

The Client indemnifies and must keep indemnified Rebecca Wilkins against all claims and losses suffered by Rebecca Wilkins arising out of any breach of this Agreement by the Client, any act or omission of the Client, any breach of the law by the Client, and for any claims against Rebecca Wilkins by third parties arising out of or in relation to this Agreement and the Project, except to the extent the claim or loss is directly caused or contributed to by a reckless or negligent act or omission of Rebecca Wilkins.

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9.3  Warranty and Guaranty

The Client represents and warrants that all information, instructions, and representations they have provided for the purposes of this Agreement are true, correct, accurate, current and complete.

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9.4  Australian Consumer Law

Nothing in this Agreement is intended to limit any Australian consumer law guarantees or warranties that may apply to the Services and that cannot be excluded.  If any provision of this Agreement is void under the Australian consumer law, then Rebecca Wilkins' liability is limited (at Rebecca Wilkins' election) to:

(a)  supplying the relevant Services again; or

(b)  the payment of the cost of having the Services supplied again by Rebecca Wilkins.

 

10.  CANCELLATIONS AND TERMINATION

 

10.1  Cancellations of Consultations

The Client agrees that no refunds are provided for cancelled or missed Consultations and that if they cancel any Consultation within twenty-four (24) hours of the scheduled appointment time, the full amount of the Fees paid or payable for such Consultation may be retained or invoiced (as applicable) by Rebecca Wilkins at their sole discretion.

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10.2  Termination on Notice

(a) Either party may terminate this Agreement at any time by giving thirty (30) days written notice of termination. Where the Project is thirty (30) days or less, only fourteen (14) days’ notice will be required.

(b)  If the Client terminates this Agreement under clause 10.2 (a), unless otherwise provided in the Proposal, or if the Client has a change of mind which is not deemed by Rebecca Wilkins a revision or variation pursuant to this Agreement:

       (i)    Rebecca Wilkins shall retain any Fees paid in advance, all Fees payable under this Agreement for all Services provided and work carried out up to and including the date of termination (or in the case of Services provided and invoiced in stages and/or phases for all Services provided or to be provided under any already commenced phase, stage) and all additional Fees, expenses and amounts payable under the terms of this Agreement, and shall otherwise repay any balance; and

       (ii)   the Client shall pay any invoice for payment for Services provided and work carried out up to and including the date of termination (or in the case of Services provided and invoiced in stages and/or phases for all Services provided or to be provided under any already commenced phase, stage or package) and any additional Fees, expenses and amounts payable under the terms of this Agreement if any Fees paid in advance are insufficient to cover them, and/or other Fees have been paid.

(c)  If Rebecca Wilkins terminates this Agreement under clause 10.2 (a), unless otherwise provided in the Proposal:

       (i)    Rebecca Wilkins shall be entitled to retain from any Fees paid in advance all Fees payable under this Agreement for all Services provided and work carried out up to and including the date of termination and all additional Fees, expenses and amounts payable under the terms of this Agreement, and shall otherwise repay any balance; and

       (ii)   the Client shall pay any invoice for payment for Services provided and work carried out up to and including the date of termination and any additional Fees, expenses and amounts payable under the terms of this Agreement if any Fees paid in advance are insufficient to cover them, and/or other Fees have been paid.

(d)  If the Project is paused for more than one (1) calendar month due to the Client placing the Project on hold, lack of clear communication from the Client or where three (3) or more unsuccessful communication attempts with the Client have been made by Rebecca Wilkins, Rebecca Wilkins shall have the right in their sole discretion to suspend the Services or immediately terminate this Agreement by written notice of suspension or termination (as applicable) to the Client and in the event of termination the provisions of clauses 10.2 (b)(i) and 10.2 (b)(ii) shall apply. Any suspension may be lifted by Rebecca Wilkins resuming the Services.

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10.3  Termination on Default

(a)  Without prejudice to any other rights or remedies a party may have under this Agreement or at law, a party may terminate this Agreement with written notice effective immediately or at such later time stipulated in the notice if:

       (i)    the other party commits a material breach of this Agreement which is capable of rectification or remedy and does not rectify or remedy that breach within seven (7) days of being requested by written notice to do so;

       (ii)   the other party commits a material breach of this Agreement that is incapable of rectification or remedy;

       (iii)   the other party is charged or convicted of a serious criminal offence, or any offence connected with theft, fraud or deception; or

       (iv)   a party is in jeopardy of becoming subject to, or has become subject to, any form of insolvency administration or threatens to cease or ceases to carry on business.

(b)  If Rebecca Wilkins terminates the Agreement under this clause, the same rights, and obligations with respect to Fees, expenses and other amounts as outlined in clause 10.2 (b) shall apply. If the Client terminates the Agreement under this clause, the same rights, and obligations with respect to Fees, expenses and other amounts as outlined in clause 10.2 (c) shall apply.

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10.4  Consequences of Termination

(a)  If this Agreement is terminated the Client and Rebecca Wilkins will each use their respective best endeavours to reach an agreement and settlement on the most appropriate and efficient way of concluding the remaining aspects of the Project.

(b)  Rebecca Wilkins will not be liable for any loss, costs and/or expenses incurred or sustained by the Client as a result of the termination of this Agreement for any reason.

(c)  The termination or conclusion of this Agreement does not affect or effect any release of any accrued rights, obligations or remedies of a party in relation to events, acts or omissions that occurred prior to the termination or conclusion of this Agreement including any claim that either party may have against the other party.

(d)  Upon termination of this Agreement for any reason and at any time:

       (i)    the Client must pay to all applicable third parties, all amounts payable to them, for, or in connection with, orders for goods, services or any Works provided up to the date of termination within thirty (30) days; and

       (ii)   each party must on request of the other party, immediately destroy or return to the other party all confidential information and intellectual property of the other party.

 

11.  DISPUTE RESOLUTION

 

Each party must use their reasonable endeavours to resolve all disputes through negotiation. If the dispute cannot be resolved through negotiation between the parties within twenty-one (21) days of the dispute arising, either party may commence mediation or other proceedings.

 

12.  GENERAL

 

12.1  Severability

If any provision or part of this Agreement is void or unenforceable for any reason, then that provision or part will be severed from this Agreement and the rest of this Agreement shall be read as far as possible as if the severed provision or part had never existed.

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12.2  Entire Agreement and Variation

The parties agree that this Agreement is the entire agreement between Rebecca Wilkins and the Client in respect of this arrangement and supersedes any other communication or understandings (whether written or oral) between Rebecca Wilkins and the Client in that regard. Any changes to this Agreement must be agreed in writing between Rebecca Wilkins and the Client prior to the changes coming into effect.

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12.3  Governing Law

This Agreement is governed by, and all disputes relating to or arising in connection with this Agreement or the subject matter of this Agreement, shall be resolved in accordance with, the laws of the State of Queensland, Australia, and the parties irrevocably agree to submit to the non-exclusive jurisdiction of the courts of Queensland and the courts of appeal from those courts.

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12.4  Survivorship

Clauses 1, 2, 7, 8, 9, 12.3, this clause 12.4 and clause 12.5 survive any expiration or termination of this Agreement and will have effect for the benefit of the parties.

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12.5  Precedence

In the event of any inconsistency, ambiguity or conflict between the documents comprising this Agreement, the order of precedence set out below shall apply to the extent of that inconsistency, ambiguity or conflict:

(a)  the Proposal;

(b)  the clauses of this Agreement; and

(c)  any schedules, annexures and attachments relating to this Agreement that are provided with this Agreement, or separately.

 

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