Introduction

 

The Company provides the Draft Assembly online marketplace linking customers with architects and landscape designers. Use of The Draft Assembly is subject to these Terms of Service.  THE DRAFT ASSEMBLY PTY LTD ABN 67 610 965 252

Definitions

 

The following terms are used regularly throughout these Terms of Service and have a particular meaning:

(a) ABN means Australian Business Number.

(b) ACN means Australian Company Number.

(c) Agreement means the agreement formed between the Users and the Company under, and on the terms of, this Terms of Service.

(d) Business Day means a day (other than a Saturday, Sunday or public holiday) on which banks are open for general banking business in Sydney, Australia.

(e) Commission means a commission fee charged by the Company to a Designer for arranging each Project accepted by a Customer.

(f) Company means The Draft Assembly Pty Ltd ABN 67 610 965 252.

(g) Confidential Information means any written or verbal information that:

i Is about each party’s business or affairs;

ii Is about the conduct of each party under this Agreement and the during the term of this Agreement;

iii A party informs the other party that it considers it confidential and/or proprietary;

iv A party would reasonably consider to be confidential in the circumstances; and

v Is personal information within the meaning of the Privacy Act.

but does not include information that a party can establish:

vi Was in the public domain at the time it was given to that party;

vii Became part of the public domain, without that party’s invol vement in any way, after being given to the party;

viii Was in party’s possession when it was given to the party, without having been acquired (directly or indirectly) from the disclosing party; or

ix Was received from another person who had the unrestricted legal right to disclose that information free from any confidentiali ty obligation.

(h) Corporations Act means the Corporations Act 2001 (Cth).

(i) Customer means a registered user of The Draft Assembly that submits a Tender Request.

(j) Designer means a party that undertakes Projects for Customers, and has entered into a Designer Agreement with the Company.

(k) Designer Terms means any terms of business that apply to a Project as required by the Designer.

(l) GST has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

(m) Initial Fee means the initial fee for a Project paid by a Customer for a Project via The Draft Assembly.

(n) Intellectual Property means all copyright, patents, inventions, trade secrets, know-how, product formulations, designs, circuit layouts, databases, registered or unregistered trademarks, brand names, business names, domain names and other forms of intellectual property;

(o) Privacy Act means the Privacy Act 1989 (Cth).

(p) Privacy Policy means the Company’s pri vacy policy as updated from time-to-time, which can be found at http://www.thedraftassembly.com/public/privacy.

(q) Project means any architectural, interior design, or landscape design services to be provided by a Designer for a Customer arranged via The Draft Assembly.

(r) Project Fee means the price paid by the Customer for a Project, as published by the Company (within The Draft Assembly) and/or agreed between the Customer and the Company from time-to-time.

(s) Tax Invoice has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

(t) Tender Proposal means a tender proposal submitted by a Designer in response to Tender Request.

(u) Tender Request means a request for tenders for a Project posted by a Customer on The Draft Assembly.

(v) Terms of Service means the terms and conditions of using The Draft Assembly, as updated from time-to-time, which can be found at https://thedraftassembly.com/public/terms_and_conditions.

(w) The Draft Assembly means:

i The Draft Assembly web service accessible from http://www.thedraftassembly.com, http://www.thedraftassembly.com.au and such other domain operated by the Company from time-to-time; and/or

ii Any The Draft Assembly mobile application.

(x) User means any Customer or Designer that uses The Draft Assembly.

(y) User Content means images, information, documents or other data that is uploaded or input into The Draft Assembly by the User or that forms part of the User’s Intellectual Property.

1 Using The Draft Assembly

 

1.1 General

(a) To use The Draft Assembly, the User must login to The Draft Assembly and have set up their account.

(b) The User agrees that all use of The Draft Assembly, and all Projects arranged through The Draft Assembly, are subject to these Terms of Service.

(c) When a Customer accepts a Tender Proposal from a Designer, that forms an independent agreement between the Designer and the

Customer on the terms set out in this Agreement , and subject to any additional Designer Terms.

(d) Anyone over the age of 18 may use The Draft Assembly to request tenders and arrange Projects.

(e) Only Designers approved by the Company and that comply with this Agreement may undertake Projects via The Draft Assembly.

(f) The Customer acknowledges that each Project is performed independently by the Designer, and that the Company does not provide any of the services in a Project directly to the Customer.

1.2 Features

(a) The Draft Assembly enables Customers to:

i Submit Tender Requests to arrange Projects with Designers;

ii Receive Tender Proposals;

iii Communicate with the Company in relation to Tender Proposals;

iv Accept Tender Proposals;

v Make payments to Designers; and

vi Manage their The Draft Assembly account (including history of services and payments).

(b) The Draft Assembly enables the Designer to:

i Receive Tender Requests from Customers for Projects;

ii Submit Tender Proposals for Projects;

iii Communicate with the Company in relation to Tender Requests and Tender Proposals;

iv Manage accepted Projects;

v Accept payments for Projects;

vi Manage payments for Projects completed;

vii Manage their The Draft Assembly account (including history of services and payments).

2 Using The Draft Assembly

 

2.1 Making Tender Requests

(a) To arrange a Project, the Customer may submit a Tender Request from within The Draft Assembly.

(b) Each Tender Request must include sufficient details to enable a Designer to provide an accurate Tender Proposal including a fair estimate of the price of a Project.

(c) The Draft Assembly will seek to obtain Tender Proposals from Designers best suited to the Project described in a Tender Request.

(d) The Company does not guarantee that a Designer will respond to any Tender Request by submitting a Tender Proposal.

(e) The Company will provide the Customer with any Tender Proposals it receives, and liaise between the Customer and Designer in relation to each Tender Proposal.

(f) No User may contact another User in relation to a Tender Request or Tender Proposal until after the Customer has accepted the Tender Proposal for the relevant Project.

(g) Amended Tender Proposals may be submitted via The Draft Assembly in response to Customer requests or queries.

(h) A binding agreement is formed between the Customer and the Designer when the Customer accepts the Designer’s Tender Proposal.

(i) The Customer must make the initial payment (or deposit as the case may be) for Project (Initial Fee) via The Draft Assembly when the Customer accepts a Tender Proposal. The Tender Proposal will not be deemed accepted until the payment is made. All subsequent payments may be made exclusive of The Draft Assembly.

(j) The Initial Fee shall in default be 10% of the total estimated value of the Project, but may be higher if agreed between a Designer and Customer in an accepted Tender Proposal.

2.2 Undertaking the Project

(a) Once the Tender Proposal has been accepted, the Company shall have no further involvement with the Project, and the Customer and Designer may communicate directly with each other.

(b) The Designer may impose any additional Designer Terms on a Project, provided the Designer Terms form part of, or are drawn to the Customers attention in, the Tender Proposal.

(c) In the event that there is a conflict between this Agreement and any Designer Terms, this Agreement will prevail.

(d) The Designer will undertake the Project to a professional standard, for the duration and/or agreed outcomes of the Project in accordance with the Tender Proposal and any Designer Terms.

(e) Where a Project is not completed to a satisfactory standard (as determined by the Company, acting reasonably) the Designer will rectify the issue at the earliest availability.

(f) All Intellectual Property created by the Designer as part of a Project is owned by the Designer, and shall not transfer to a Customer unless agreed otherwise between the Designer and the Customer.

2.3 User Content

The User understands and agrees that:

(a) User Content is the sole responsibility of the person that submits the User Content to The Draft Assembly.

(b) User Content that is offensive, indecent or objectionable must not be submitted to The Draft Assembly. The Company may remove User Content that the Company determines is offensive, indecent or objectionable in its sole discretion.

(c) To the extent permitted by law, under no circumstances will the Company be liable in any way for User Content.

(d) The User must not infringe any third-party Intellectual Property rights by making User Content available on The Draft Assembly.

3 Fees, Payments & Refunds

 

3.1 The Customer shall pay the Company the Initial Fee for a Project undertaken by a Designer. The Company will issue a Tax Invoice to the Customer for the Initial Fee via The Draft Assembly and/or email.

3.2 All payments for Initial Fees must be made through The Draft Assembly (or at the Company’s discretion, directly to the Company). Once the Initial Fee has been paid the balance of all remaining payments for a Project may be made directly to the Designer in accordance with the Designer Terms or as otherwise agreed between the Designer and the Customer.

3.3 Unless stated otherwise, payment of the Initial Fee will be charged to the Customer’s credit card when the Customer accepts a Tender Proposal.

3.4 The Company shall take a Commission from the Initial Fee before paying the balance on to the Designer.

3.5 Commission shall be charged in accordance with the rates advertised on The Draft Assembly from time-to-time, or as otherwise agreed with the Company.

3.6 No Refunds of Commission are offered except as required by law.

3.7 The Designer shall be responsible for paying (or reimbursing) any refund processed by the Company of an Initial Fee, including the value of Commission.

4 Direct contracting between customers

and designers

 

4.1 Without the written consent of the Company, the Designer shall not directly contract to provide services to a Customer outside of the Draft Assembly except in relation to an accepted Project. Where such a direct relationship is formed without the consent of the Company, the Designer agrees to pay the Company an amount equal to the Commission that would have applied had that project been arranged via The Draft Assembly as a Project.

4.2 The prohibition on direct contracting between Customers and Designers in 4.1 shall apply to each Designer that provides a Tender Proposal to a Customer via Draft Assembly, and shall expire 12 months from the date that the Tender Proposal was submitted to The Draft Assembly.

4.3 The Company will issue a Tax Invoice to the Customer for all such fees payable to the Company under clause 4.1.

5 Relationship

 

5.1 The parties agree that the Designer is an independent contractor to the Customer. Each Designer and Customer is responsible to each other with respect to each Project. The parties acknowledge and agree that:

(a) The Designer is not an employee or subcontractor of the Company, and the Designer does not provide any services to Customers on behalf of the Company;

(b) The Company is only the Designer’s agent for the purpose of arranging Projects and receiving payments from the Customer;

(c) The Designer is not an employee of the Customer or the Company; and

(d) The Company is not an agent of the Customer.

6 General Conditions

 

6.1 Licence

(a) By accepting the terms and conditions of this Agreement, the User is granted a limited, non-exclusive and revocable licence to access and use The Draft Assembly for the duration of this Agreement, in accordance with the terms and conditions of this Agreement.

(b) The Company may issue the licence to the User on the further terms or limitations (including the number of users or volume of use or transactions) as it sees fit.

(c) The Company may revoke or suspend the User’s licence(s) in its absolute discretion for any reason that it sees fit, including for breach of the terms and conditions in this Agreement by the User.

6.2 Modification of Terms

(a) The terms of this Agreement may be updated by the Company from time-to-time.

(b) Where the Company modifies the terms, it will provide the User with written notice, and the User will be requi red to accept the modified terms in order to continue using The Draft Assembly.

6.3 Software-as-a-Service

(a) The User agrees and accepts that The Draft Assembly is:

i Hosted by the Company and shall only be installed, accessed and maintained by the Company, accessed using

the internet or other connection to the Company servers and is not available ‘locally’ from the User’s systems; and

ii Managed and supported exclusively by the Company from the Company servers and that no ‘back -end’ access to The Draft Assembly is available to the User unless expressly agreed in writing.

(b) As a hosted and managed service, the Company reserves the right to upgrade, maintain, tune, backup, amend, add or remove features, redesign, improve or otherwise alter The Draft Assembly.

6.4 Support

(a) The Company provides user support for The Draft Assembly via the email address hello@thedraftassembly.com.

(b) The Company shall endeavour to respond to all support requests within 2 Business Days.

6.5 Use & Availability

(a) The User agrees that it shall only use The Draft Assembly for legal purposes and shall not use it to engage any conduct that is unlawful, immoral, threatening, abusive or in a way that is deemed unreasonable by the Company in its discretion.

(b) The User is solely responsible for the security of its username and password for access to The Draft Assembly. The User shall notify the Company as soon as it becomes aware of any unauthorised access of its The Draft Assembly account.

(c) The User agrees that the Company shall provide access to The Draft Assembly to the best of its abilities, however:

i Access to The Draft Assembly may be prevented by issues outside of its control; and

ii It accepts no responsibility for ongoing access to The Draft Assembly.

6.6 Privacy

(a) The Company maintains the Privacy Policy in compliance with the provisions of the Privacy Act for data that it collects about the User and other customers.

(b) The Privacy Policy does not apply to how a Designer handles personal information. If necessary under the Privacy Act, it is the Designer’s responsibility to meet the obli gations of the Pri vacy Act by implementing a privacy policy in accordance with law.

(c) The Draft Assembly may use cookies (a small electronic tThe Draft Assemblying code) to improve a User’s experienc e whil e browsing, while also sending browsing information back to the Company. The User may manage how it handles cookies in its own browser settings.

6.7 Data

(a) Security. The Company takes the security of The Draft Assembly and the privacy of its Users very seriously. The Client agrees that the Client shall not do anything to prejudice the security or privacy of the Company’s systems or the information on them.

(b) Transmission. The Company shall do all things reasonable to ensure that the transmission of data occurs according to accepted industry standards. It is up to the Client to ensure that any transmission standards meet the Client’s operating and legal requirements.

(c) Storage. Data that is stored by the Company shall be stored according to accepted industry standards.

(d) Backup. The Company shall perform backups of its entire systems in as reasonable manner at such times and intervals as is reasonable for its business purposes. The Company does not warrant that it is able to backup or recover speci fic Client Data from any period of time unless so stated in writing by the Company.

6.8 Intellectual Property

(a) Trademarks. The Company has moral & registered rights in its trade marks and the User shall not copy, alter, use or otherwise deal in the marks without the prior written consent of the Company.

(b) Proprietary Information. The Company may use software and other proprietary systems and Intellectual Property for which the Company has appropriate authority to use, and the User agrees that such is protected by copyright, trademarks, patents, proprietary rights and other laws, both domestically and internationally. The User warrants that it shall not infringe on any third-party rights through the use of The Draft Assembly.

(c) The The Draft Assembly Application. The User agrees and accepts that The Draft Assembly is the Intellectual Property of the Company and the User further warrants that by using The Draft Assembly the User will not:

i Copy The Draft Assembly or the services that it provides for the User’s own commercial purposes; and

ii Directly or indirectly copy, recreate, decompile, reverse engineer or otherwise obtain, modi fy or use any source or object code, architecture, algorithms contained in The Draft Assembly or any documentation associated with it.

(d) Content. All content submitted to the Company, whether via The Draft Assembly or directly by other means, becomes and remains the Intellectual Property of the Company, including (without limitation) any source code, analytics, insights, ideas, enhancements, feature requests, suggestions or other information provided by the User or any other party with respect to The Draft Assembly.

6.9 Disclaimer of Third Party Services & Information

(a) The User acknowledges that The Draft Assembly Is dependent on third-party services, including but not limited to:

i Banks, credit card providers and merchant gateway providers;

ii Telecommunications services;

iii Hosting services;

iv Email services; and

v Analytics services.

(b) The User agrees that the Company shall not be responsible or liable in any way for:

i Interruptions to the availability of The Draft Assembly due to third-party services; or

ii Information contained on any linked third party website.

6.10 Liability & Indemnity

(a) The User agrees that it uses The Draft Assembly at its own risk.

(b) The User acknowledges that The Draft Assembly does not make Projects on its own behalf.

(c) The User acknowledges that the Company is not responsible for the conduct or activities of any Designer and that the Company is not liable for such under any circumstances.

(d) The User agrees to indemni fy the Company for any loss, damage, cost or expense that the Company may suffer or incur as a result of or in connection with the User’s use of or conduct in connection with The Draft Assembly, including any breach by the User of these Terms.

(e) In no circumstances will the Company be liable for any direct, incidental, consequential or indi rect damages, personal injury, death, damage to property, loss of property, loss or corruption of data, loss of profits, goodwill, bargain or opportunity, loss of anticipated savings or any other similar or analogous loss resulting from the User’s access to, or use of, or inability to use The Draft Assembly, whether based on warranty, contract, tort, negligence, in equity or any other legal theory, and whether or not the Company knew or should have known of the possibility of such damage, loss, personal injury or death, or business interruption of any type, whether in tort, contract or otherwise.

(f) Certain rights and remedies may be available under the Competition and Consumer Act 2010 (Cth) or similar legislation of other States or Territories and may not be permitted to be excluded, restricted or modi fied. Apart from those that cannot be excluded, the Company and the Company’s related entities exclude all conditions and warranties that may be implied by law. To the extent permitted by law, the Company’s liability for breach of any implied warranty or condition that cannot be excluded is restricted, at the Company’s option to:

i The re-supply of services or payment of the cost of re-supply of services; or

ii The replacement or repair of goods or payment of the cost of replacement or repair.

6.11 Termination

(a) Either party may terminate this Agreement by giving the other party written notice.

(b) Termination of this agreement is without prejudice to and does not affect the accrued rights or remedies of any of the parties arising in any way out of this agreement up to the date of expiry or terminat ion.

(c) Termination does not affect any of the rights accrued by a party prior to termination, and he rights and obligations under clauses 6.9, 6.12 and 6.13 survive termination of this Agreement.

6.12 Dispute Resolution

(a) If any dispute arises between the parties in connection with this Agreement (Dispute), then either party may notify the other of the Dispute with a notice (Dispute Notice) which:

i Includes or is accompanied by full and detailed particulars of the Dispute; and

ii Is delivered within 10 Business Days of the circumstances giving rise to the Dispute first occurring.

(b) Within 10 Business Days after a Dispute Notice is given, a representative (with the authority to resolve the dispute) parties must meet (virtually or otherwise) and seek to resolve the Dispute.

(c) Subject to clause (d), a party must not bring court proceedings in respect of any Dispute unless it first complies with the requirements of the dispute resolution mechanism outlined in this clause.

(d) Nothing in this clause prevents either party from instituting court proceedings to seek urgent injuncti ve, interlocutory or declaratory relief in respect of a Dispute.

(e) Despite the existence of a Dispute, the parties must continue to perform their respective obligations under this document and any related agreements.

6.13 Electronic Communication, Amendment & Assignment

(a) The words in this clause that are defined in the Electronic Transactions Act 1999 (Cth) have the same meaning.

(b) The User can di rect notices, enqui ries, complaints and so forth to the Company as set out in this Agreement. The Company will noti fy the User of a change of details from time-to-time.

(c) The Company will send the User notices and other correspondence to the details that the User submits to the Company, or that the User notifies the Company of from time-to-time. It is the User’s responsibility to update its contact details as they change.

(d) A consent, notice or communication under this Agreement is effective if it is sent as an electronic communication unless required to be physically delivered under law.

(e) Notices must be sent to the parties’ most recent known contact details.

(f) The User may not assign or otherwise create an interest in this Agreement.

(g) The Company may assign or otherwise create an interest in its rights under this Agreement by giving written notice to the User.

6.14 General

(a) Special Conditions. The parties may agree to any Special Conditions to this Agreement in writing.

(b) Prevalence. To the extent this Agreement is in conflict with, or inconsistent with, the terms of a Designer Agreement, or any Special Conditions made under this Agreement, as relevant, the terms of those other agreements or Special Conditions shall prevail.

(c) Disclaimer. Each party acknowledges that it has not relied on any representation, warranty or statement made by any other party, other than as set out in this Agreement.

(d) Relationship. The relationship of the parties to this Agreement does not form a joint venture or partnership.

(e) Waiver. No clause of this Agreement will be deemed waived and no breach excused unless such waiver or consent is provided in writing.

(f) Further Assurances. Each party must do anything necessary (including executing agreements and documents) to give full effect to this Agreement and the transaction facilitated by it.

(g) Governing Law. This Agreement is governed by the laws of New South Wales, Australia. Each of the parties hereby submits to the non-exclusive jurisdiction of courts with jurisdiction there.

(h) Severability. Any clause of this Agreement, which is invalid or unenforceable, is ineffective to the extent of the invalidity or unenforceability without affecting the remaining clauses of this Agreement.

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