BESPOKE TERMS AND CONDITIONS

These Business Terms, together with any Quote, set out the Agreement under which SI&EM ABN 79 338 845 476 (SI&EM) provides Products and Services to you (the Client).

1. GENERAL

(a) The Client will be taken to have accepted this Agreement if the Client accepts a Quote, or if the Client orders, accepts and pays for any Products and Services provided by SI&EM after receiving or becoming aware of this Agreement.

(b) In the event of any inconsistency between these Business Terms and any Quote, the clauses of these Business Terms will prevail to the extent of such inconsistency, except that any “Special Conditions” (being terms described as such in a Quote) will prevail over these Business Terms to the extent of any inconsistency.

(c) SI&EM may update any part of the Business Terms at any time without notice to the Client.

(d) The Client is responsible for confirming the Quote accurately specifies:

(i) the specifications of the Products and Services required; and
(ii) the agreed Fees and any other rates and agreed timelines.

2. PRODUCTS AND SERVICES
(a) In consideration for the payment of the fees set out in the Quote (Fees), SI&EM will provide the Client with the Products and Services set out in the Quote.
(b) Unless otherwise agreed, SI&EM may, in its discretion:

(i) not commence work on any Services until the Client has paid the non-refundable Deposit and any Fees payable in respect of such Products and Services as set out in the Quote; and
(ii) withhold delivery of Products and Services until the Client has paid an invoice in respect of such Products and Services.

(c) SI&EM will undertake an initial meeting with Client to discuss the scope of work to be provided in more detail. The Client must approve each stage of delivery of the Products and Services (during fittings and appointments) and pay the applicable Fees before SI&EM undertakes further work (Acceptance). (d) Once SI&EM receive Acceptance from the Client on a specific stage:

(i) any additional revisions required may be charged at the Additional Work Rate at SI&EM’s discretion; and
(ii) refunds cannot be provided unless there is a non fixable defect with our work. Refunds are not granted for change of mind.

(e) Until the Fees are paid in full, title in the Products and Services is retained by SI&EM. Risk in the Products will pass to the Client on Delivery. Delivery must not be refused by the Client.

3. MATERIALS AND SOURCING

(a)  SI&EM will provide and supply all materials for the Products and Services. At the initial consultation, fabrics and embellishments will be discussed with Client and SI&EM will source agreed necessary materials. SI&EM offer sourcing services which if applicable. Assistance with sourcing materials. $110 call out fee for the first hour (an then charged at $75/hour).
(b)  SI&EM will not be liable for delays due to causes beyond SI&EM’s reasonable control e.g. delays with obtaining materials due to external factors such as postal delays.

(c)  If the Client provides and supplies materials to SI&EM for the Products and Services (and only if agreed with by SI&EM), the Client:

(i) accepts the full risk of defects or deficiencies in such materials.
(ii) is responsible for ensuring the materials are suitable for the intended purpose. SI&EM are not required to investigate the suitability, quality or fitness for purpose of existing or proposed materials and reserves the right to refuse to work with unsuitable materials.
(iii) will be required to pay the Additional Work Rate for any time SI&EM agrees to undertake any work to correct any defects or issues with such materials.
(iv) will adhere to SI&EM’s instructions regarding proposed quantities of materials. The Client acknowledges inadequate quantities may affect the successful delivery and performance of the Products and Services and SI&EM takes no responsibility and will not be liable if Client has failed to comply with SI&EM’s instructions.
(v) Any left over materials supplied by SI&EM will remain our property. You will be only charged for what is used in your garment.

4. CLIENT OBLIGATIONS
(a) (Fittings & Appointments) The Client agrees to liaise and provide SI&EM with all information and assistance for the purpose of enabling SI&EM to provide, perform and deliver the Products and Services. This includes:
(i)  the Client must book and honour fittings and appointments at the SI&EM studio. The Client may bring only one guest to accompany them at appointments.
(ii)  SI&EM will only take instructions and receive approvals/sign offs from the Client directly.
(iii)  If SI&EM are requested and required to travel to an appointment at a different location, a travel charge of $120 per hour will be charged. Clients must allow at least 1 hour for each appointment.
(iv)  The Client must contact SI&EM at least 48 hours in advance to cancel or reschedule an appointment. Missed appointments may incur additional charges.
(v)  The Client must bring the necessary accessories to the appointment as advised by SI&EM.
(vi)  Client understands and acknowledges any changes to appointment booking times can affect the delivery time of the Products & Services and SI&EM will not be liable for any delay due to the Client.
(vii) SI&EM can cancel a fitting/appointment at any time as long as another date and time has been provided.

(b)  (Measurements)

(i)  The Client agrees a complete set of measurements will be taken by SI&EM at the time of order and SI&EM will endeavour to deliver the Products according to these measurements.
(ii)  If the Client is unable to attend an in-person session, the Client will provide measurements to SI&EM and the Client assumes full responsibility for the accuracy of the measurements.
(iii)  SI&EM understands there may be marginal change to measurements in between fittings, however the Client agrees any extra time spent on changes and adjustments for material changes will be charged at the Additional Work Rate. SI&EM are not liable and take no responsibility for a Client’s body measurement changes.
(iv)  Where a weight loss plan, pregnancy, or illness/recovery is a factor, SI&EM must be informed so that the garment can be planned appropriately.

5. CHANGES

(a)  The Client must pay additional service fees for changes to Products and Services requested by the Client which are outside the scope set out in the relevant Quote (Changes)at the Additional Work Rate.
(b)  Unless otherwise agreed in writing, SI&EM may at its discretion extend or modify any delivery schedule or deadlines for the Services as may be reasonably required by such Changes.
(c)  The Client must request any Changes in writing and give SI&EM at least 3 business days to respond to such a request.
(d)  SI&EM may in its absolute discretion extend or modify any Deadlines for the Services as may be reasonably required by such Changes.
(e)  Changes may result in re-delivery and administrative charges becoming payable by the Client.

6. PAYMENT

6.1 DEPOSIT
The Client must pay the non-refundable Deposit at the times and via the payment method set out in the Quote before work will commence.
6.2 FEES
The Client must pay to SI&EM the Fees in the amounts, at the times and using the Fee Payment Method set out in the Quote or as otherwise agreed in writing.
6.3 INVOICES
Unless otherwise agreed in the Quote:
(a) if SI&EM issues an invoice to the Client, payment must be made by the time(s) specified in such invoice; and
(b) in all other circumstances, the Client must pay for all goods and services within 2 weeks of receiving an invoice for amounts payable.
6.4 EXPENSES
Unless otherwise agreed in writing:
(a) any third party costs incurred by SI&EM in the course of performing the Services may be billed to the Client, unless specifically provided for in the Quote.
6.5  GST
Unless otherwise indicated, amounts stated in a Quote does include GST.
6.6  CARD SURCHARGES
SI&EM reserves the right to charge credit card surcharges in the event payments are made using a credit, debit or charge card (including Visa, MasterCard or American Express).
6.7  LATE PAYMENT AND DEBT RECOVERY
If the Client fails to pay any amounts due to SI&EM under an invoice by the specified due date, SI&EM retains the right, without limiting any other rights under this Agreement, to charge the Client interest at a rate of 10% per annum on the outstanding amount. However, before applying this interest, SI&EM will provide the Client with a written notice giving an additional 7 days to complete the payment. If payment is still not received by the end of this 7-day grace period, interest will accrue from the expiration of that period until the date the full payment is received by SI&EM.

7. RETURNS & REFUNDS

(a) SI&EM do not offer change of mind returns or refunds.
(b) SI&EM will only provide a full refund for a Product if SI&EM determine that:
(i) a Product was not received by the Client solely due to failure by SI&EM; or
(ii) a Product is faulty, in accordance with clause 7(c), in which case SI&EM may provide a repair or a full refund of the price paid for a Product.

(c) (Faulty products) The following process applies to any Product the Client believes to be faulty.
(i)  If Client believes a Product is faulty, they must contact SI&EM within 10 business days of receiving the Product with a full description of the fault (including images).
(ii)  If SI&EM determine the Product may be faulty, SI&EM will request that Client returns the Product back to SI&EM for further inspection, including any accessories and documentation delivered with the Product. SI&EM reserve the right to further inspection before deeming a Product faulty.
(iii)  If SI&EM determine in our reasonable opinion that the Product is not faulty, or is faulty due to fair wear and tear, misuse, failure to use in accordance with Instructions, or failure to take reasonable care, SI&EM will refuse return and send the Product back to the Client.
(iv)  If SI&EM determine the Product is faulty, SI&EM will first assess whether the Product can be repaired depending on the nature of the fault. If SI&EM determines the Product cannot be repaired, a refund will be issued, and all refunds will be credited back to the Client’s original method of payment.
(v)  If the Client fails to comply with the provisions of this clause in respect of a faulty Product, SI&EM may, in its absolute discretion, issue only a partial refund or no refund in respect of the faulty Product.
(vi)  Nothing in this clause is intended to limit or otherwise affect the operation of any manufacturers’ warranties which the Client may be entitled to or any of the Client’s rights which cannot be excluded under applicable law.

8. INTELLECTUAL PROPERTY

(a)  SI&EM retains all intellectual property rights in the design of the Products and Services. The Client must not attempt to copy, reproduce, manufacture or otherwise commercialise the Products and Services.

(b)  In this clause 8, “intellectual property rights” means all copyright, trade mark, design, patent, semiconductor and circuit layout rights, trade, business, company and domain names, confidential and other proprietary rights, and any other rights to registration of such rights whether created before or after the date of these terms both in Australia and throughout the world.

9. DELIVERY

9.1  COST AND OBLIGATIONS
(a) SI&EM will provide the Client with an estimated Delivery date or as set out in the Quote.
(b) Clients are required to attend a final fitting appointment, provide sign off and pay the Fees before final Delivery of the Product is made. Until the Fees are paid in full, title in the Products and Services is retained by SI&EM. Risk in the Products will pass to the Client on Delivery. Delivery must not be refused by the Client.
(c) Unless otherwise indicated, amounts stated in Quotes do not include delivery.(d) For Products to be delivered, SI&EM will charge the Client for delivery.
(e) If SI&EM is unable to complete the delivery within the agreed time schedule due to the Client’s absence or other fault of the Client, the Client will be liable for all charges and costs incurred, including but not limited to warehousing, transportation and redelivery.
(f) If the Client organises delivery independently of SI&EM, SI&EM shall not be held liable for non-delivery, lateness of delivery or loss or damage of Products during transit.

9.2  DAMAGE IN TRANSIT
Unless SI&EM is delivering the Products, SI&EM shall not be liable for loss of or damage to Products in transit and the Client must make all claims for such loss or damage against the carrier.

10. WARRANTIES

(a) To the maximum extent permitted by applicable law, all express or implied representations and warranties not expressly stated in this agreement are excluded.
(b) Nothing in this agreement is intended to limit the operation of the Australian Consumer Law contained in the Competition and Consumer Act 2010 (Cth) (ACL). Under the ACL, the Client may be entitled to certain remedies (like a refund, replacement or repair) if there is a failure with the goods or services provided.

11. LIABILITY
To the maximum extent permitted by law, the total liability of each party in respect of loss or damage sustained by the other party in connection with this agreement is limited to the amount paid by the Client to SI&EM under the most recent Quote. 

11.1 CONSEQUENTIAL LOSS

To the maximum extent permitted by law, neither party will be liable for any incidental, special or consequential loss or damages, or damages for loss of data, business or business opportunity, goodwill, anticipated savings, profits or revenue in connection with this agreement or any goods or services provided by SI&EM, except:
(a) in relation to a party’s liability for fraud, personal injury, death or loss or damage to tangible property; or
(b) to the extent this liability cannot be excluded under the Competition and Consumer Act 2010 (Cth).

12. SUBCONTRACTING

    SI&EM may subcontract any aspect of providing the Services and the Client hereby consents to such subcontracting.

13. CANCELLATION AND TERMINATION

    (a)  If the Client cancels or terminates the Products and Services, the Deposit is non-refundable and the Client may, in SI&EM’s absolute discretion, be liable to pay an administrative fee of up to $500. The Client acknowledges that the administrative fee is a genuine pre-estimate of the costs and expenses, such as cancellation fees payable to suppliers of materials, that SI&EM would incur as a result of a cancellation or postponement. The Client must also pay any outstanding Fees for Products & Services already performed up to the date of termination.
    (b)  To the maximum extent permitted under Australian Consumer Laws, all Fees are non-refundable and payable upon cancellation, to the pro rata value of the Services that have been performed at the date of cancellation.

     

14. DISPUTE RESOLUTION

    (a)  The parties must, without delay and in good faith, attempt to resolve any dispute which arises out of or in connection with this Agreement prior to commencing any proceedings.
    (b)  The parties acknowledge that compliance with this clause 13 is a condition precedent to any entitlement to claim relief or remedy, whether by way of proceedings in a court of law or otherwise in respect of such disputes, except:
    (i) in the case of applications for urgent interlocutory relief; or
    (ii) a breach by another party of this clause 13.

     

15. FORCE MAJEURE

    (a)  If a party becomes unable, wholly or in part, to carry out an obligation under this agreement (other than an obligation to pay money) due to an event beyond its reasonable control (Force Majeure), that party must give to the other party prompt written notice of:

    (i) reasonable details of the Force Majeure; and

    (ii) so far as is known, the probable extent to which that party will be unable to perform or be delayed in performing its obligation.

    (b)  Subject to compliance with clause 15(a), the relevant obligation will be suspended during the Force Majeure to the extent that it is affected by the Force Majeure.
    (c)  The affected party must use its best endeavours to overcome or remove the Force Majeure as quickly as possible.

     

16. GENERAL

16.1  GOVERNING LAW AND JURISDICTION
This agreement is governed by the law applying in New South Wales. Each party irrevocably submits to the exclusive jurisdiction of the courts of New South Wales and courts of appeal from them in respect of any proceedings arising out of or in connection with this agreement. Each party irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.

16.2  BUSINESS DAYS
If the day on which any act is to be done under this agreement is a day other than a Business Day, that act must be done on or by the immediately following Business Day except where this agreement expressly specifies otherwise.

16.3  AMENDMENTS
This agreement may only be amended in accordance with a written agreement between the parties.

16.4  WAIVER
No party to this agreement may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.

16.5  SEVERANCE
Any term of this agreement which is wholly or partially void or unenforceable is severed to the extent that it is void or unenforceable. The validity and enforceability of the remainder of this agreement is not limited or otherwise affected.

16.6  JOINT AND SEVERAL LIABILITY
An obligation or a liability assumed by, or a right conferred on, two or more persons binds or benefits them jointly and severally.

16.7 ASSIGNMENT
A party cannot assign, novate or otherwise transfer any of its rights or obligations under this agreement without the prior written consent of the other party.

16.8 COSTS
Except as otherwise provided in this agreement, each party must pay its own costs and expenses in connection with negotiating, preparing, executing and performing this agreement.

16.9 ENTIRE AGREEMENT
This agreement embodies the entire agreement between the parties and supersedes any prior negotiation, conduct, arrangement, understanding or agreement, express or implied, in relation to the subject matter of this agreement.

16.10 INTERPRETATION
(a) (singular and plural) words in the singular includes the plural (and vice versa);
(b) (gender) words indicating a gender includes the corresponding words of any other gender;
(c) (defined terms) if a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;
(d) (person) a reference to “person” or “you” includes an individual, the estate of an individual, a corporation, an authority, an association, consortium or joint venture (whether incorporated or unincorporated), a partnership, a trust and any other entity;
(e) (party) a reference to a party includes that party’s executors, administrators, successors and permitted assigns, including persons taking by way of novation and, in the case of a trustee, includes any substituted or additional trustee;
(f) (this agreement) a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure is a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure to or of this agreement, and a reference to this agreement includes all schedules, exhibits, attachments and annexures to it;
(g) (document) a reference to a document (including this agreement) is to that document as varied, novated, ratified or replaced from time to time;
(h) (headings) headings and words in bold type are for convenience only and do not affect interpretation;
(i) (includes) the word “includes” and similar words in any form is not a word of limitation;
(j) (adverse interpretation) no provision of this agreement will be interpreted adversely to a party because that party was responsible for the preparation of this agreement or that provision; and
(k) (currency) a reference to $, or “dollar”, is to Australian currency, unless otherwise agreed in writing.