Engagement Terms and Conditions

Defined terms

In this letter and its schedules and annexures:

  1. “we“, “us” or the “Jeweller” means Elova Pty Ltd (ACN 668 254 500)  trading as “Elova Jewellery” (ABN 26 357 443);
  2. “you” or the “customer” means First Name Last Name; and First Name Last Name
  3. capitalised terms have the meanings given to them in the glossary in clause 1.1 of our engagement terms (Annexure 1).

Acceptance of these terms

This letter, together with its attachments, constitutes an offer by us to provide the Goods or Services to you for the Fees on the terms set out below. You will be taken to have accepted this offer if you:

  1. sign a copy of this agreement and return it to us;
  2. otherwise communicate your acceptance to us (in writing); or
  3. continue to instruct us in connection with the Goods or Services.

Our Customer

The Customer is the only entity to which we will owe our obligations. We will not owe any obligations to any other entities.

Who can instruct us

We will accept instructions in the creation / design / repair of Name of Jewellery Piece (‘the Works’) from anyone who, in our reasonable opinion, has apparent authority to give us such instructions on your behalf, including the following individuals:

Instructing Person #1- husband
Instructing Person #2 – wife

Scope of the Services

The scope of the Services that we will provide under this agreement is set out in section 2 of Schedule 1. The Services will be divided into 3 discrete Phases. Details of the work involved in each Phase are provided in that section.

Out-of-Scope Services

Importantly, our engagement will not involve any Out-of-Scope Services. “Out-of-Scope Services” includes any design or jewellery construction services that do not fall wholly within the scope of included work as set out in section 2 of Schedule 1.

Section 3 of Schedule 1 contains details of specific services that will be treated as Out-of-Scope Services.

Changes to the scope

Changes to the scope of the Services can only be made by agreement in writing between the parties.

Cancellation Policy

Charges for each consultation are based on the hourly rate detailed below and are included in the estimate provided. A $55 – $150 deposit for each consultation is required at the time of booking (with the exception of the free 30 minute initial consultation), this amount is subtracted from the total of your next invoice. If your cancellation is at least 24 hours in advance of the consultation, you will receive a full refund or the deposit will be credited to ward a rescheduled consultation at a later date. In the case of late notice cancellations of less than 24 hours or failure to attend a consultation (‘no-shows’) the $55 – $150 deposit converts to a cancellation fee. The cancellation fee represents the loss of income and additional expense incurred by Elova Jewellery in relation to late cancellations and ‘no-shows’.

Variations to nature and value of Gem Stones and Precious Metals

Please note that, while all due care and attention is exercised in ensuring that any precious metals and gem stone acquired are as close to your desired description and the agreed design as Practicable, these items are naturally occurring and therefore subject to slight variations.

Furthermore, precious metals and gem stones value and availability are subject to international stock market trends and influenced by global trends, demand and supply. Any estimates provided are based on the jewellers best information of the value at the time of the estimate and subject to change in line with market value and availability.

You will be notified in writing of any changes in the estimate as a result of the value of the selected gemstones and precious metals prior to the Jeweller commencing Phase X (construction of the Piece).

For Repairs and Remodels

Customer has requested Jeweller to carry out the work as specified above on the items of jewellery as described above by the Customer.

In order for Jeweller to carry out the work requested, Customer hereby states and agrees to be bound by the following Terms and Conditions:

The description of the items is Customer’s alone.

Jeweller is not required to identify or certify the nature, quality or value of the item of jewellery submitted by Customer or any gem(s) contained in said item.

Customer understands that gems may have been subjected to an enhancement process or treatment which is not detectable to the naked eye or without special testing equipment. This enhancement process or treatment can make a gem unstable, especially if subjected to heat. An unstable gem may crack, chip or break.

To best of Customer’s knowledge, unless so stated above, the gem (s) in the item submitted by Customer has not been subjected to any enhancement process or treatment.

Other than as provided by law, including under the statutory warranty provisions of the Competition and Consumer Act 2010, Jeweller is not liable for:

(a) any damage to the gem(s) if that damage occurs as a result of the gem(s)’s instability caused by an enhancement process or treatment, or

(b) any damage to the item of jewellery unless Jeweller is proven negligent

Our service team

The members of our team who will be primarily responsible for this work and their Standard Hourly Rates are as follows:

Team member

Position

Hourly rate
(A$ ex GST)

Erin Evans

Master Jeweller

150.00

Pricing

Estimates

Our estimates of the Fees for each Phase of the Services, based on our current understanding of the scope of the work, are set out in section 2 of Schedule 1.

These estimates do not include any Out-of-Scope Services and are estimates only – they do not represent a fixed price, a quote or a cap.

Any Out-of-Scope Services will be provided on an hourly-rate basis and charged in addition to these fixed prices.

Disbursements

You will be required to reimburse us for any and all reasonable out-of-pocket expenses or charges that we pay on your behalf in connection with the Services, including any Third Party Fees.

GST and other terms

All prices shown are exclusive of any GST, which will be added if applicable. Please see our engagement terms in Annexure 1 for full details of how Costs will be structured.

Payments

Costs in relation to phase two will be invoiced in advance to ensure funds are available to secure the requested precious metals and gem stones required to complete your selected works. All other costs will be invoiced in arrears at such times as we see fit during construction / design / repair of your jewellery piece. We expect this to be upon the completion of each Phase and upon final completion of the Services or termination of this agreement.

Payment is required within 1 month after the date of each invoice.

Liability

Our liability in respect of the services provided under this agreement will be limited in accordance with section 13 of Annexure 1.

Governing law

Our engagement will be governed by the laws of Western Australia, Australia and each party submits exclusively to the courts of that jurisdiction.

Annexure 1– Engagement terms and conditions

Contents Page

1. Definitions and interpretation 1
2. Engagement 2
3. Services 3
4. Our team 3
5. Confidentiality 3
6. Intellectual Property 3
7. Costs 4
8. Invoicing and payments 4
9. Title 5
10. Service Lien 5
11. Delivery and Risk 5
12. Disputes 5
13. Liability and obligations 5
14. Termination 6
15. GST 6
16. Notices 7
17. General 7

1.Definitions and interpretation

Definitions

Authorisation means any consent, authorisation, registration, filing, agreement, notarisation, certificate, permit, licence, approval, authority or exemption.

Business Day means a day (other than a Saturday, Sunday or public holiday) when banks in Perth, Western Australia are open for business.

Claims means any claims including actions, complaints, debts, demands, dues, proceedings, suits or other legal recourse (whether in contract or tort (including negligence), at law or in equity or under any Legislation) and including any causes of action or rights to bring or make any such claim.

Consequential Loss means any indirect, special, punitive, exemplary or consequential Loss, including loss of profits or revenue, loss of goodwill or reputation, business interruption, loss of data and failure to realise any anticipated savings or benefits of any kind.

Costs means Fees, charges, expenses and Disbursements.

Default Rate means, in respect of any particular invoice, a rate of interest equal to the Cash Target Rate specified by the Reserve Bank of Australia as at the date that invoice, plus 2.00%.

Disbursements means any and all reasonable out-of-pocket expenses, charges or other costs that we pay or incur on your behalf in connection with the Services, including:

  1. printing and photocopying costs, word-processing charges, postage and express delivery charges, telephone call and facsimile transmission charges, travel and subsistence expenses, filing and document lodgement fees and amounts charged for searches of public registers;
  2. stamp duty and any other similar transaction or registration charges, including any interest, fine or penalty in respect thereof; and
  3. Third Party Fees.

Fees means our fees for our provision of Goods or Services to you under this agreement calculated in accordance with clause 7.

Goods means goods (as that term is defined under the PPSA) supplied to the Customer (and where the context so permits includes Services).

Governmental Agency means any government or governmental, semi-governmental, administrative, fiscal or judicial body, department, commission, authority, tribunal, agency or entity whether foreign, supranational, federal, state, territorial or local.

GST has the same meaning given to that expression in the GST Law.

GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth), as in force from time to time.

GST Law has the same meaning given to that expression in the GST Act.

Intellectual Property Rights means patents, rights to inventions, copyright and related rights, moral rights, trademarks and service marks, trade names and domain names, rights in get-up, rights to goodwill or to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights in confidential information (including know-how, trade secrets and marketing secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

Legislation means any statute, legislation, proclamation, rule, code, regulation, ordinance, constitutional provision, treaty, decree, convention or by-law.

Liability Cap has the meaning given in clause 13.6(a).

Loss means any loss, damage, debt, cost, charge, expense, fine, outgoing, penalty, diminution in value, deficiency or other liability of any kind or character that a party pays, suffers or incurs or is liable for, including any:

  1. liabilities on account of any taxation of any kind, including indirect taxation;
  2. interest, penalties and other amounts payable to third parties;
  3. legal and other professional fees and expenses (on a full indemnity basis) and other costs incurred in connection with investigating, defending or settling any Claim, whether or not resulting in any liability; and
  4. amounts paid in settlement of any Claim,

and includes any Consequential Loss.

Out-of-Scope Services means any non-legal services and any legal services that do not fall wholly within the scope of the Services set out in section 2 of Schedule 1, including the services described in section 3 of Schedule 1.

Phase means each stage of the Services as separately designated in section 2 of Schedule 1.

Privacy Act means the Privacy Act 1988 (Cth).

Relevant IP means all Intellectual Property Rights that the Jeweller makes, develops or conceives (whether alone or in conjunction with someone else) in the course of, or arising out of, the Services, and all other Intellectual Property Rights of the Jeweller that the Jeweller uses in the course of providing the Services.

Representatives means, in respect of a person, its employees, consultants, agents and advisors and, in respect of a body corporate, includes its officers.

Services means the services that the Jeweller will provide under this agreement in accordance with clause 3.1, as set out in section 2 of Schedule 1, and otherwise describes all services supplied to the Customer and includes any advice or recommendations, intellectual or intangible property under the PPSA (and where the context so permits includes any supply of Goods).

Standard Hourly Rates means, in respect of:

the individuals named as members of our service team in the covering engagement letter, their respective hourly rates as set out in the covering engagement letter, or such rates as may be revised from time to time; and any additional and/or replacement staff who are appointed to our team in accordance with clauses 4.1 and 4.2, their standard hourly rates from time to time.

Works means all artistic works (including jewellery design) within the meaning of the Copyright Act.

Interpretation

  • The following rules of interpretation apply in this agreement unless the context requires otherwise:
    • headings in this agreement are for convenience only and do not affect its interpretation or construction;
    • no rule of construction applies to the disadvantage of a party because this agreement is prepared by, or on behalf of, that party;
    • where any word or phrase is defined, any other part of speech or other grammatical form of that word or phrase has a cognate meaning;
    • a reference to a document (including this agreement) is a reference to that document (including any schedules and annexures) as amended, consolidated, supplemented, novated or replaced;
    • references to recitals, clauses, subclauses, paragraphs, annexures, schedules and parts are references to recitals, clauses, subclauses, paragraphs, annexures, schedules and parts of or to this agreement;
    • a reference to any Legislation includes:
      1. that Legislation as amended, extended, consolidated, modified or applied by or under any other Legislation, whether before or after execution of this agreement;
      2. any Legislation which that Legislation re-enacts, whether with or without modification; and
      3. any subordinate Legislation made, whether before or after execution of this agreement, under:
        • that Legislation, including (as applicable) that Legislation as amended, extended, consolidated, modified or applied as described in clause 1.2(f)(i); or
        • any Legislation which that subordinate Legislation re-enacts as described in clause 1.2(f)(ii);
  • a reference to any law:
    • includes a reference to any Legislation, judgment, rule of common law or equity or rule of any applicable stock exchange; and
    • is a reference to:
      • that law as amended, consolidated, supplemented or replaced; and
      • any other law made under it;
  • an expression importing a natural person includes any individual, corporation or other body corporate, partnership, trust or association and any Governmental Agency and that person’s personal representatives, successors, permitted assigns, substitutes, executors and administrators;
  • a reference to writing includes any communication sent by post, facsimile or email;

a reference to time refers to time in Perth, Western Australia and time is of the essence; a reference to any Costs, including Fees and Disbursements, includes any interest owing thereon under clauses 8.9 and 8.10;

  • all monetary amounts are in Australian currency;
  • the word “month” means calendar month and the word “year” means 12 calendar months;
  • a reference to the “date of this agreement” is a reference to the date on which this agreement becomes binding in accordance with clause 2.2;
  • the meaning of general words is not limited by specific examples introduced by “include”, “includes”, “including”, “for example”, “in particular”, “such as” or similar expressions;
  • a reference to a “party” is a reference to a party to this agreement, and a reference to a “third party” is a reference to a person that is not a party to this agreement;
  • a reference to a liability includes a present, prospective, future or contingent liability;
  • a reference to any thing is a reference to the whole and each part of it;
  • a reference to a group of persons is a reference to all of them collectively and to each of them individually;
  • words in the singular include the plural and vice versa; and
  • a reference to one gender includes a reference to the other genders.

2.Engagement

  • The Customer hereby engages the Jeweller to provide, and the Jeweller hereby agrees to provide, the Goods or Services to the Customer on the terms of this agreement.

Offer and acceptance

  1. The provision of a copy of this agreement to the Customer constitutes an offer by the Jeweller to provide the Services to the Customer on the terms of this agreement. This agreement will be deemed to have been accepted and will become binding as between the Jeweller and the Customer upon the earliest to occur of the Customer:
    • duly executing a copy of this agreement and returning it to us;
    • otherwise communicating to us, whether in writing or verbally, its acceptance of that offer; and
    • giving us any instructions in connection with the Services after having received a copy of this agreement.

Authorisations

  • The Jeweller represents and warrants to the Customer, and the Customer represents and warrants to the Jeweller, that it has taken all necessary actions, and obtained all required Authorisations, to enable it to execute, deliver and perform its obligations under this agreement, and any such Authorisations are in full force and effect.

3.Services

Scope of the Services

  1. Subject to clause
  2. The scope of the Services and the Out-of-Scope Services:
    • may be varied at any time by agreement in writing between the parties; and
    • will not be taken to have been varied without such agreement.

Your cooperation

  1. To perform the Services successfully, we require your timely co-operation. Accordingly, you must:
    • provide in a timely fashion all information, documents and instructions that we reasonably require to enable us to provide the Services;
    • at all times tell us openly and honestly everything relevant to the Services;
    • arrange access to third parties where applicable;
    • ensure that appropriate back-up, security and virus checking procedures are in place for any computer facilities you provide;
    • make senior executives available for consultation on request where applicable; and
    • make decisions promptly to facilitate the performance of the Services.

Timetable

  • Unless expressly agreed otherwise in writing between the Jeweller and the Customer, dates in any timetable for the provision of the Services are intended for planning and estimating purposes only and are not contractually binding. The timely completion of the Services requires your co-operation in accordance with clause 3.3. Estimates of time for completion of the Services are given on the assumption that we receive this co-operation. Any default or delay in providing this co-operation may result in additional Costs.

Obligations owed to the Customer only

  • Unless expressly agreed otherwise in writing between the Jeweller and the Customer:
    • the Services will be provided solely for the benefit and use of the Customer and we accept no liability or responsibility to any third party in respect of the Services; and
    • our engagement to provide the Services for the Customer pursuant to this agreement does not extend to include acting for any:
      • Related Entities of the Customer, or any Representatives of the Customer or of any such Related Entities; or
      • Third Party Payers, and we take on no responsibilities, obligations or duties to any such third parties, and no lawyer-Customer or other fiduciary relationship exists between us and any such third parties.
  • Except as required by law, you must not provide any documentation or deliverables in respect of the Services to any third party (including the filing of information containing or referring to any of our reports with regulators or the inclusion of our reports in any public document) without our prior written consent.

4.Our team

Team members

  1. The individuals who will be primarily responsible for providing the Services are those named as members of our service team in the covering engagement letter.
  2. 4.2If any changes to the service team are made, we will provide you with details of any additional and/or replacement staff. Such additional or replacement staff may have lower or higher hourly rates than the team members named in the covering engagement letter in line with any differences in their respective levels of productivity, skills and/or experience.

Support staff

  • All services will be provided by Qualified Jewellers in accordance with Jewellers Association. Other persons within the business who are not Jewellers may assist in the production of the Works in a peripheral capacity under the supervision of the Jeweller, or in an administrative capacity.

Subcontractors

  • We reserve the right to engage subcontractors and any reference in this agreement to our staff includes subcontractor staff. Unless you expressly agree otherwise, we will remain responsible to you for any of the Services that are provided by our subcontractors.

5.Confidentiality

  • We undertake not to disclose or misuse your confidential information, subject only to applicable law and obligations.

6.Intellectual Property

  • Unless expressly agreed otherwise in writing between the Jeweller and the Customer:
    • all Relevant IP will be owned exclusively by, and vest exclusively in, the Jeweller;
    • the Customer hereby assigns, transfers and conveys to the Jeweller all current and future right title and interest in any Relevant Ip and acknowledges that all future Relevant IP will vest in the Jeweller on and from creation;
    • The Customer must do anything necessary, including executing any documents, for the purpose of effecting, perfecting and/or protecting the Jeweller’s title to any Relevant IP, in Australia or in such other countries as the Jeweller may require at its discretion; and
    • you must not use or reproduce any Relevant IP, or any other Intellectual Property Rights of the Jeweller, without our prior written approval, other than for the purposes that are contemplated in this Agreement.
  • You must not use the Jeweller name or logo on any website or in any public statement without obtaining our prior written consent.

7.Costs

Hourly rates

  • Our Fees will be calculated on the basis of the time spent by us in providing the Services at our Standard Hourly Rates.
  • Hourly rates are proportionately charged for work involving periods of less than one hour.

Estimates of Fees

  • Based on our understanding of the scope of the Services as at the date of this agreement, we have provided an estimate of the Fees for each Phase of the Services will be as specified for that Phase in section 2 of Schedule 1.
  • These estimates:
    • do not include any Out-of-Scope Services; and
    • are provided in good faith but are not contractually binding. They do not represent a fixed price, a quote or a cap. Because of the inherent difficulty of predicting the value of precious metals and gem stones, as well as the amount of time required to complete the requested Works, estimates are an approximation only.
  1. Some of the factors that may affect our estimates are set out in section

Out-of-Scope Services

  1. Our Fees for any Out-of-Scope Services will be:
    • calculated on the basis of the time spent by us in providing those Out-of-Scope Services on an hourly-rate basis at our Standard Hourly Rates.

Hourly rates may apply

    • calculated on the basis of the time spent by us in providing those Services on an hourly-rate basis at our Standard Hourly Rates; or
    • a pro-rata amount of any Fixed Price or quoted amount based upon our reasonable estimate of the proportion that those Services represent in comparison with all of the Services contemplated by section 2 of Schedule 1.

Cancellation for Consultations

  • Charges for each consultation are based on the hourly rates. A $55 deposit for the consultation fee is required at the time of booking. This deposit will be deducted from your total invoice once the consultation has taken place.
  • In the event that a Customer requires to cancel or reschedule a consultation, they must provide the Jeweller 24 hours notice in order to receive a full refund of the consultation deposit or credit towards rescheduled appointment.
  • In the event that a Customer fails to attend a scheduled consultation or has not provided at least 24 hours notice for cancellation the consultation deposit may, at the Jewellers absolute discretion, be converted to a cancellation fee.

8.Invoicing and payments

Invoicing and payment terms

  • Costs will be invoiced in arrears upon the completion of each Phase and upon final completion of the Works or termination of this agreement, or otherwise at such times as we see fit in our discretion during the course of the Services. You will be taken to have received each invoice in accordance with the provisions regarding receipt of notices in clause 16
  • We may require a deposit be paid prior to the commencement of Phase 4 prior to acquiring any precious metals or gems stones required to complete the Works and incurring the additional insurance costs of storing those items for the duration of the Services.
  • You must pay the Costs that are the subject of any invoice rendered under this agreement within 30 days after the date of issue of the relevant invoice.
  • If you dispute part of an invoice, you must still pay the undisputed part as and when it is or becomes due and payable.

Suspension of Services

  • We may at any time suspend all work for you until payment in full of all of our outstanding invoices.

Method of payment

  • All amounts to be paid by a party to another party under or in connection with this agreement must be paid in cash or by way of electronic funds transfer into the account nominated by the other party[LH1].

No set-off or deduction

  • All amounts payable under or in connection with this agreement must be paid without set-off, counterclaim, withholding, deduction or claim to a lien whatsoever, whether or not any such set-off, counterclaim, withholding, deduction or lien arises under this agreement (unless otherwise required by law).
  • If a party is required by law to make a deduction or withholding in respect of any sum payable under or in connection with this agreement to another party, it must, at the same time as the sum that is the subject of the deduction or withholding is payable, make a payment to the other party of such additional amount as is required to ensure that the net amount received by the other party will equal the full amount that would have been received by it had no such deduction or withholding been required to be made.

Default interest

  1. If a party fails to pay any sum payable by it under this agreement to another party at the time and otherwise in the manner provided in this agreement, it must pay interest on that sum from the due date of payment until that sum is paid in full at the Default Rate, calculated daily on the basis of a 365-day year and compounded monthly. Interest will accrue from day to day and will be payable on demand. The payment of interest by a party to another party in respect of any late payment under this clause
  2. If a liability of a party to another party under this agreement becomes merged in a judgement or order and the interest rate that applies under that judgement or order is lower than the Default Rate, that party must, as an independent obligation, pay to the other party, at the same time and in the same manner as the sum that is the subject of that judgement or order is to be paid, such additional interest on that sum as is required to ensure that the total amount of interest that the other party receives in respect of that liability is equal to the Default Rate.

9.Title

  • Until all monies and obligations owing by the Customer to the Jeweller from time to time have been paid and discharged in full, the Jeweller shall retain all legal and beneficial title in all Goods.

10.Service Lien

  • If:
    • The Jeweller is in possession of goods belonging to the Customer for the purposes of performing repair or maintenance services in respect or those goods; and
    • The Jeweller has completed, and payment is due in respect of those Services under this Agreement, then without prejudice to any other rights or remedies to which the Jeweller is entitled (whether under this Agreement, a consumer credit agreement or any other agreement between the parties) the Company:
  • Has a lien over the relevant goods; and
  • May, on 7 Days notice to the Customer, sell those goods to recover the unpaid amount owing to the Company in respect of the Services.

11.Delivery and Risk

  1. Once the Jeweller has notified the Customer that the Services are complete, and/or the Goods are ready for collection (‘Completion’) the Customer must:
    1. pay all amounts due in clear funds within the agreed timeframe; and
    2. Arrange to collect the Goods as soon as practicable after payment is receipted by the Jeweller, but in any event, no later than 30 days from the date of Completion
  2. Risk in the Goods passes on Completion even if title has not passed under clause 9.
  3. Any Goods that are not collected within 30 days of Completion will incur an administration fee of 10 per cent of their full invoiced amount.
  4. Should the Customer request the Jeweller to post any Goods or organise delivery of Goods, the Customer’s risk of loss or damage to such Goods passes to the Customer on the date and at the time that the Goods were ordered, it is the Customer’s responsibility to ensure theseGoods are insuredand covered for their time in transit.
  5. The Jeweller shall have no liability for non-delivery or delay in delivery of any Goods and where such non-delivery or delay occurs, and the Customer is not entitled to any compensation from theCompany of any nature for any loss,damage or delay.
  6. Except to the extent required by law, the Customer will not be entitled to return any Goods and the Jeweller will not be obliged to acceptthe return of any Goods whatsoever.
  1. Disputes
  • It the Customer disputes any Goods sold or services supplied by the Jeweller are faulty, defective or disputes the Invoices the Jeweller has issued, the Customer must notify their reasons in writing to the Company within 14 days of the Invoice date, failing which the Customer loses any right to dispute the quality of the Goods, services or quantum of invoice.

13.Liability and obligations

  • The Jeweller will use reasonable skill and care in providing the Services and producing the Works.
  • The Customer understands that gems may have been subjected to an enhancement process or treatment which is not detectable to the naked eye or without special testing equipment. This enhancement process or treatment can make a gem unstable, especially if subjected to heat. An unstable gem may crack, chip or break.
  • To best of Customer’s knowledge, unless so stated above, the gem (s) in the item submitted by Customer has not been subjected to any enhancement process or treatment.
  • Other than as provided by law, including under the statutory warranty provisions of the Competition and Consumer Act 2010, Jeweller is not liable for:

(a) any damage to the gem(s) if that damage occurs as a result of the gem(s)’s instability caused by an enhancement process or treatment, or
(b) any damage to the item of jewellery unless Jeweller is proven negligent

  • The Customer shall have personal liability for, and hereby irrevocably indemnifies and covenants to hold the Jeweller harmless from and against, any and all Losses that may be suffered by the Jeweller and which arise, directly or indirectly, in connection with any breach of this agreement by the Client and/or any negligent or other tortious conduct in the provision of the Goods or Services.

Limitation of liability

  1. To the maximum extent permitted by law:
    1. (Liability Cap) the aggregate liability of the Jeweller, together with its Related Entities and their Representatives, for any Losses arising directly or indirectly out of, or in connection with, the Services (including the use by you or any other person of any deliverable under this agreement) is capped at the value of the Fees that become payable under this agreement (the Liability Cap);
    2. (Disclaimer of warranties) the Jeweller, its Related Entities and its and their Representatives:
      • exclude all warranties, conditions and guarantees of any nature (whether express or implied, statutory or otherwise) in relation to the Goods or Services, including any implied warranty of merchantability, fitness for a particular purpose or non-infringement. Without limitation to the foregoing, the Jeweller and its Representatives make no representation, and provide no warranty or guarantee, that:
        • the Client will achieve any particular results from the Goods or the provision of the Services;
        • any particular individuals will perform the Services on behalf of the Jeweller; or
        • the Goods or Services will be:
        • error-free or that errors or defects will be corrected; or
        • meet the Client’s requirements or expectations;
    3. limit their liability for breach of any non-excludable warranty, condition or guarantee that is implied by virtue of any Legislation to the supply of the Goods or Services again or the payment of the cost of having the Services supplied again (the choice of which is to be at the Jeweller’s sole discretion); and
  2. (Exclusion of Consequential Loss) the Jeweller and its Related Entities and its and their Representatives exclude all liability to you or any other person for any Consequential Loss arising directly or indirectly out of, or in connection with, the Services (including the use by you or any other person of any deliverable under this agreement), even if the Jeweller has been advised of the possibility of such Consequential Loss,

and the Customer acknowledges and agrees that the Jeweller holds the benefit of this agreement, including this clause 13.6, on its own behalf and as agent and trustee for and on behalf of its Related Entities and its and their Representatives, and each of them is entitled to enforce this agreement as it were a party to this agreement.
Liability in relation to Third Party Service Providers

  • We will take reasonable care in providing instructions to any Third Party Service Providers but, to the maximum extent permitted by law, we take no responsibility for their work or how they carry out their instructions. In suggesting or selecting any Third Party Service Providers, we will rely on information that we are given as to their qualifications and experience but take no responsibility for such selections and give no warranty as to the ability of any Third Party Service Providers to appropriately carry out their work or as to the quality of their Goods or services.

Apportionment of liability

  • If you make any Claim against us for any Loss arising out of, or in connection with, the Goods or Services or this agreement and some or all of that Loss was due to, or contributed to by:
    • your own acts or omissions or the acts or omissions of other persons for whose conduct you are responsible; or
    • the acts or omissions of one or more other persons, not being partners, employees or agents of the Jeweller for whose conduct we are responsible,

then, to the maximum extent permitted by law, we will be liable only for that proportion of the Loss which our acts and omissions bear in relation to the total conduct of all persons causing or contributing to that Loss.
Force majeure

  1. A party will not be liable for any delay or failure to perform its obligations (excluding payment obligations) under this agreement to the extent that any such delay or failure arises from causes beyond its control, including fire, floods, disease, acts of god, acts or regulations of any Governmental Agency, war, riot, terrorist activities, strikes, lockouts and industrial disputes.

In-progress drafts or images

  • In the course of providing the Goods or Services, we may provide verbal comments and/or work in progress images or updates to you. You must not rely upon any such verbal comments or drafts or work in progress images, as they are subject to further work or revision and/or other factors that may mean that they are substantially different from any final product.

14.Termination

  1. Subject to clause

Termination by us for cause

  1. Notwithstanding clause
    • materially breach this agreement, including failing to:
      • pay our bills in full or in a timely manner; or
      • provide us with adequate instructions within a reasonable time;

Payment of Costs upon termination

  1. If:
    • you terminate this agreement for any reason; or
    • we terminate this agreement under clause 14.2,

you will be liable to pay, immediately upon demand by us, all outstanding Costs (including any cancellation fees, hearing allocation fees, etc for which we remain responsible), calculated in accordance with clause 7.7 as we may so elect, accrued up to and including the date of termination.

  • If we terminate this agreement other than under clause 14.2, we will send you a final invoice for the balance of any outstanding Costs accrued up to and including the date of termination.

Lien over Works

  • On termination of this agreement by any party for any reason, we are entitled to retain possession of your Jewellery Piece or Works until all Costs that are due for the period up to and including the date of termination have been paid in full.

Accrued rights and obligations

  • Termination of this agreement will not affect any rights or obligations that the parties have accrued under it prior to such termination.

Survival

  • Provisions of this agreement that, expressly or by implication, are intended to survive its termination will survive and continue to bind the parties.

15.GST

Definitions regarding GST

  • In this clause 15:
    • expressions that are not defined, but which have a defined meaning in the GST Law, have the same meaning as in the GST Law;
    • any part of a supply that is treated as a separate supply for GST purposes (including attributing GST payable to tax periods) will be treated as a separate supply for the purposes of this clause 15; and
    • any consideration that is specified to be inclusive of GST must not be taken into account in calculating the GST payable in relation to a supply for the purpose of this clause 15.

Consideration is exclusive of GST

  • Unless expressly stated otherwise, any sum payable, or amount used in the calculation of a sum payable, under this agreement has been determined without regard to GST and must be increased on account of any GST payable in accordance with this clause 15.

Receiving Party to pay additional amount

  1. If we have assessed that no GST is payable in respect of our Fees and subsequently we change our assessment or the Australian Taxation Office assesses that GST is payable, then GST will be added to, and form part of, our Fees at the prevailing GST rate, and we reserve the right to recover any such GST from you
  2. If GST is imposed on any supply made under or in accordance with this agreement, the recipient of the supply (Receiving Party) must pay to the supplier (Supplier) an additional amount equal to the GST payable on the supply, subject to the Receiving Party receiving a valid tax invoice, or a document that the Commissioner will treat as a tax invoice, in respect of the supply at or before the time of payment. Payment of the additional amount will be made at the same time and in the same manner as payment for the supply is required to be made in accordance with this agreement.

Fines, penalties and interest

  • The amount recoverable on account of GST under this clause 15 by the Supplier will include any fines, penalties, interest and other charges incurred as a consequence of any late payment or other default by the Receiving Party under this clause 15.

Reimbursement

  • The Customer will pay all reasonable expenses properly and necessarily incurred by the Jeweller in the course of providing the Goods or Services.
  • If any party is required to pay, reimburse or indemnify another party for the whole or any part of any cost, expense, loss, liability or other amount that the other party has incurred or will incur in connection with this agreement, the amount must be reduced by the amount for which the other party can claim an input tax credit, partial input tax credit or other similar offset.

Adjustment events

  • If, at any time, an adjustment event arises in respect of any supply made by a party under this agreement, a corresponding adjustment must be made between the parties in respect of any amount paid to the Supplier by the Receiving Party pursuant to clause 15.3 and payments to give effect to the adjustment must be made and the Supplier must issue an adjustment note.

16.Notices

  • A notice given to a party under this agreement must be:
    • in writing in English;
    • sent to the address, fax number or email address of the relevant party as set out in the covering engagement letter (or such other address, fax number or email address as the relevant party may notify to the other parties from time to time); and
    • delivered/sent either:
      • personally;
      • by commercial courier;
      • by pre-paid post;
      • if the notice is to be served by post outside the country from which it is sent, by airmail; or
      • by e-mail.
  • A notice is deemed to have been received:
    • if delivered personally, at the time of delivery;
    • if delivered by commercial courier, at the time of signature of the courier’s receipt;
    • if sent by pre-paid post, 48 hours from the date of posting;
    • if sent by airmail, five days after the date of posting; or
    • if sent by e-mail, 4 hours after the sent time (as recorded on the sender’s e-mail server), unless the sender receives a notice from the Jeweller’s email server or internet service provider that the message has not been delivered to the Jeweller,

except that, if such deemed receipt is not within business hours (meaning 9:00 am to 5:00 pm on a Business Day), the notice will be deemed to have been received at the next commencement of business hours in the place of deemed receipt.

  • To prove service, it is sufficient to prove that:
    • in the case of post – that the envelope containing the notice was properly addressed and posted; and
    • in the case of email – the email was transmitted to the Jeweller’s email server or internet service provider.

17.General

Relationship

  • The Jeweller is an independent contractor of the Customer. Nothing in this agreement will constitute a partnership, joint venture or agency relationship between the parties.

Further assurances

  • Each party must (at its own expense) promptly execute and deliver all such documents, and do all such things, as any other party may from time to time reasonably require for the purpose of giving full effect to the provisions of this agreement.

Entire agreement

  • This agreement contains the entire understanding between the parties in relation to its subject matter and supersedes any previous arrangement, understanding or agreement relating to its subject matter. There are no express or implied conditions, warranties, promises, representations or obligations, written or verbal, in relation to this agreement other than those expressly stated in it or necessarily implied by statute.

Severability

  • If a provision of this agreement is invalid or unenforceable in a jurisdiction:
    • it is to be read down or severed in that jurisdiction to the extent of the invalidity or unenforceability; and
    • that fact does not affect the validity or enforceability of that provision in another jurisdiction, or the remaining provisions.

No waiver

  • No failure, delay, relaxation or indulgence by a party in exercising any power or right conferred upon it under this agreement will operate as a waiver of that power or right. No single or partial exercise of any power or right precludes any other or future exercise of it, or the exercise of any other power or right under this agreement.

Amendment

  • The Customer and the Jeweller agree that the terms of this Agreement may be altered unilaterally by the Jeweller by giving the Customer 14 days written notice. Clerical errors are subject to correction without notice.

Assignment

  • A party must not assign, transfer, sub-contract, create any trust over or otherwise deal in any way with any of its rights or obligations under this agreement without the prior written consent of each other party.

Counterparts

  1. This agreement may be executed in any number of counterparts, each of which is an original and which together will have the same effect as if each party had signed the same document.

Electronic exchange

  1. Delivery of an executed counterpart of this agreement by facsimile, or by email in PDF or other image format, will be equally effective as delivery of an original signed hard copy of that counterpart.
  2. If a party delivers an executed counterpart of this agreement under clause 17.9:
    1. it must also deliver an original signed hard copy of that counterpart, but failure to do so will not affect the validity, enforceability or binding effect of this agreement; and
    2. in any legal proceedings relating to this agreement, each party waives the right to raise any defence based upon any such failure.

Governing law and jurisdiction

  • This agreement and any disputes or claims arising out of or in connection with its subject matter or formation (including non-contractual disputes or claims) are governed by, and shall be construed in accordance with, the laws of Western Australia, Australia.
  • The parties irrevocably agree that the courts of Western Australia, Australia have exclusive jurisdiction to settle any dispute or claim that arises out of, or in connection with, this agreement or its subject matter or formation (including non-contractual disputes or claims).