Milray Park End User Agreement
2 The Website
- Milray Park provides an online platform that connects Customers seeking interior design services with Designers who wish to provide such services, including, fore xample, through Design Projects (the “Services”).
- “End User” means any user of our Website or of our Services.
- This Agreement includes terms that apply generally to all End Users who access and use the Website (including Designers and Customers), terms that apply specifically to End Users registered as Customers and terms that apply specifically to End Users registered as Designers.
- Milray Park provides Services (including facilitation services) to Designers, which enables them to provide Design Services to Customers.
- You acknowledge that Designers providing Design Services to Customers through the Website are not the employees, agents, contractors, consultants or representatives of Milray Park.
- To the maximum extent permitted by law:
The Term of this Agreement commences on the date on which you register with us on ourWebsite and continues until your registration is terminated by you or us in accordance with this Agreement.
- To use the Website and the Services, you must register on the Website using your correct and full name, and in accordance with the registration procedures described on the Website.
- To use the Design Services available on the Website, an End User must also register on the Website as either a “Designer” or “Customer”.
- We reserve the right to accept or reject, in our sole discretion, the registration of any End User.
- When you register, we may provide you with an initial password (which you may be able to change at a later stage) and user name which is personal to you. You must keep any user name and password that are allocated to you (as well as any password you subsequently choose) private, and not disclose them to any other person. If you have lost or forgotten your password, you can request that we send you a reminder email containing your password to your registered email address.
- You may cancel your registration, by notifying us at [email protected] and by providing your user name.
- We may suspend or cancel your registration, either temporarily or permanently, if you breach, or we reasonably believe you have breached, any of the terms of this Agreement.
4.2 Special registration requirements for Designers
- To register as a Designer on the Website, an End User must satisfy the DesignerRegistration Requirements specified on the Website from the date of registration and on each day of the Term.
- Designer acknowledges and agrees that we may determine, in our sole discretion, whether an End User satisfies, at any point during the Term, the DesignerRegistration Requirements.
- Designer is not permitted to register more than one account on the Website.
5 Design Projects
5.1 Submitting a Design Brief
5.2 Designer invitation and acceptance to Design Project
- Customer must invite at least one Designer to their Design Project.
- Designers invited to a Design Project may view the Design Brief and choose to accept or reject the invitation.
- The first Designer to accept a Design Project will be allocated as the Designer for that Design Project.
5.3 Submission of First Look
5.4 Design Phase
5.5 Development of Final Design Package
5.6 Submission and acceptance of Final Design Package
- Designer must submit the Final Design Package to Customer in accordance with the Project Timeline.
- Customer must either accept, or reject, the Final Design Package within five (5) calendar days after receiving same (the “Acceptance Period”).
- If Customer has not indicated its acceptance, or rejection, of the Final DesignPackage prior to the expiry of the Acceptance Period, Customer is deemed to have accepted the Final Design Package.
- If, at the time the Final Design Package is submitted to Customer, items on theShopping List are not purchasable by Customer within thirty (30) calendar days after delivery of the Final Design Package, Designer must provide to Customer, as soon as practicable, a list of substitutable items.
- Customer may submit questions to Designer relating to the Final Design Package within fourteen (14) days after receiving same and Designer must promptly respond to any such questions.
6 Your obligations and restrictions
6.1 General End User obligations and restrictions
6.2 End User’s acknowledgements and warranties
6.3 Designer’s obligations and restrictions
If you are a Designer:
6.4 Designer’s acknowledgements and warranties
If you are a Designer, you warrant and agree that:
6.5 Customer’s obligations and restrictions
If you are a Customer, you must not:
- cancel a Design Project for the purpose of contracting separately with a Designer who you have met through the Website;
- shorten any deadlines set out in the Project Timeline; or
- communicate with Designer other than through the Website and in accordance with the terms of this Agreement.
6.6 Customer’s acknowledgements and warranties
If you are a Customer, you acknowledge and agree that:
- You are solely responsible for the requirements specified in your Design Brief.
- We reserve the right, at our sole discretion, to deny a Design Brief from being posted on the Website and/or remove a Brief from the Website, without notice.
- We may, but are under no obligation to, review any Design Brief for accuracy, completeness of information, quality and/or clarity.
7.1 Customer Payment terms
- This clause 7 sets out the terms on which Customer is to pay the Fees to Designer.
- We provide the Services (including facilitation services) to Designer which enables Designer to provide Customer with the Design Services. We and the Designer will jointly appoint Stripe to collect payment of the Fees from the Customer
7.2 Payment of Fees
7.3 Processing of payments
- You must notify us as soon as possible in respect of any changes to your billingand account information.
- You acknowledge that Fees are processed via a third party payment processing services and will be subject to the applicable terms and conditions offered by such third party.
7.4 Cancellation policy
- Customer cannot cancel their Design Project after they submit their Design Brief.
- Customer will be charged for the full amount due under this Agreement upon release of their Final Design Package or in accordance with this Agreement.
7.5 Refunds policy
- All capitalised terms have the same meaning as those expressions in the A NewTax System (Goods and Services Tax) Act 1999 (Cth).
8.2 Gross up
- Unless specifically stated otherwise, any consideration or amount payable under this Agreement, including any non-monetary consideration (Consideration) is exclusive of GST.
- If GST is or becomes payable on a Supply made by Supplier under or in connection with this Agreement, an additional amount (Additional Amount) is payable by Recipient equal to the amount of GST payable on that Supply as calculated by Supplier in accordance with the GST Law.
- The Additional Amount payable under clause 8.2(b) is payable at the same time and in the same manner as the Consideration for the Supply but is only payable on receipt of a valid Tax Invoice.
9 Purchasing of Products
- Our Website includes products available for purchase from various third party sellers (“Sellers”). It is important that you understand that when you place an order for a product on the Website (“Product”), you are placing an order with theSeller of the Product, and not with Milray Park. We make the Products available for purchase (including by taking orders and collecting payment) as the agent of the Seller, and not on our own behalf.
- We are not a party to, and have no obligations under, the terms by which the Seller sells you its Products. Rather, any such contract will only be between you and the relevant Seller. To the maximum extent permitted by law, we are not liable for any losses or claims that you may suffer or incur in relation to the Products you purchase from Sellers through the Website, except to the extent that such losses or claims arise from our breach of this Agreement.
- You should read the terms and conditions on which each Seller makes their products available for purchase.
- Sellers of Products on our Website are located in Australia and are subject toAustralian laws and regulations.
9.2 Ordering procedure
- When you place an order to purchase a Product via the Website, you are making an offer to the Seller. No contract for the purchase of a Product will come into existence until the Seller has accepted your order.
- To facilitate the purchase of Products from Sellers, you consent to us accepting payment for the purchase of the Product(s) and placing the order/s on your behalf with the relevant Seller/s.
9.3 Products may only be purchased by Australian customers
Orders for Products will only be accepted if you provide a local billing address for your credit card in Australia.
- When you purchase a Product, you agree to pay the purchase price specified on this Website at the time of purchase. All amounts are stated in Australian dollars.All purchase prices include Australian GST (where applicable) and shipping charges.
- If the Product is being delivered outside of Australia, you must pay any other sales, use, goods and services, value added, customers, excise or similar taxes or charges (“Other Taxes”) imposed by any applicable government agency. You should contact the taxing authorities of the country to which the Products are shipped if you are unsure whether any Other Taxes will apply.
- You will be required to pay for the Product online by credit card or debit card. We will process the transaction upon receipt of your order. The credit cards that are accepted from time to time will be described on this Website. A surcharge may apply for the use of certain credit cards, and where this is the case this will also be described on the Website.
9.5 Cancellation of orders
Unforeseen supply problems or unexpected demand may occasionally result in a Product being unavailable. If there is a delay in shipping your order, the Seller will contact you by email as soon as possible to advise you of the reason for the delay. If this occurs, you may cancel your order at any time prior to when the Seller ships the Product to you.
- Upon payment of the purchase price for a Product, we will forward your contact details to the Seller of the Product. If the item you have purchases requires coordination for shipping, the Seller will contact you directly to arrange for the delivery of the Product to the place of delivery you specify when making your order.
- Delivery of the Product will be subject to the Seller’s own delivery terms.
- The return of Products is subject to the Seller’s own returns policy. If you wish to return any Products or have any complaints in relation to a Product you purchase from a Seller, you should contact the relevant Seller directly.
10 Intellectual Property Rights
10.1 Your licence
10.2 Your Content
10.3 Designer’s grant to Customer of all rights, title and interest in Work(s)
10.4 Moral Rights
- Designer warrants that written consents have been obtained from all persons and/or entities engaged by Designer in the production of the Work(s) in respect of the exercise of all rights as afforded under this Agreement without infringement of any Moral Rights in the product of their services.
- Designer consents to Customer exercising all rights as afforded under thisAgreement and reproducing or otherwise exploiting the Work(s) (and any part thereof) without infringement of Designer’s Moral Rights, and to doing any other acts that might otherwise infringe Designer’s Moral Rights.
10.5 Designer’s warranties
11 Communication with End Users
- By clicking to accept this Agreement, you agree that we may send you, from time to time, electronic communications (including, but not limited, emails and/or SMS)in relation to a Design Project, your use of the Website, or any of our other goods or services that we consider may interest you.
- You may unsubscribe from these communications at any time by following the instructions set out in the relevant communication.
12.2 Designer’s obligations
13.1 Our Services and our Website are provided “as is” and all guarantees, conditions and warranties expressed, implied or imposed by any legislation, the common law, or otherwise in relation to the supply of our Services, our Website or otherwise in connectio nwith our obligations under this Agreement are expressly excluded and disclaimed to the fullest extent permitted by law, except where such exclusion is prohibited by law.
13.2 Without limiting clause 13.1, we make no warranty or representation that:
- our Services, our Website or any content made available on such will meet your requirements or expectations;
- the use of our Services, our Website or any content made available on such will be uninterrupted, timely, secure, error free or virus free, or unable to be accessed by hackers, viruses or other harmful components;
- that results that may be obtained from the use of our Services, our Website or any content made available on such will be inaccurate or reliable; and
- any errors in our Services, our Websites or any content made available on such will be corrected.
13.3 Notwithstanding clauses 13.1 and 13.2 above, nothing in this Agreement excludes, restricts or modifies any right or remedy, or any guarantee, warranty or other condition, implied or imposed under any legislation which cannot lawfully be excluded or limited.This may include the Australian Consumer Law, which contains guarantees that protect the purchasers of goods and services in certain circumstances.
13.4 If any guarantee, warranty, term or condition is implied or imposed in relation to theAgreement under the Australian Consumer Law or any other applicable legislation and cannot be excluded (a “Non-Excludable Provision”), and we are able to limit your remedy for a breach of the Non-Excludable Provision, our liability for a breach of the NonExcludable Provision is limited to one or more of the following, at our option:
- in the case of the supply of goods: (i) the replacement of the goods or the supply of equivalent goods; or (ii) the repair of the goods; or (iii) the payment of the cost of replacing the goods or of acquiring equivalent goods; or (iv) the payment of the cost of having the goods repaired; or
- in the case of the supply of services: (i) the supply of the services again; or (ii) the payment of the cost of having the services supplied again.
13.5 To the maximum extent permitted by law, in relation to our Services and the subject matter of this Agreement in no event shall we or our employees, officers, representatives and directors be liable for any loss of profits, management time, savings, contracts, revenue, invest, goodwill, data, or for any penalties, fines, for any consequential, special, indirect, or exemplary damages, costs, expenses, or losses (including negligence).
13.6 To the maximum extent permitted by law, you agree that we, our employees, officers, representatives and directors shall not be liable to You for any actions, damages, claims, liabilities, costs, expenses, or losses in any way arising out of or relating to thisAgreement (whether that liability arises in contract, tort (including negligence) or statute)which are not otherwise excluded or limited for an aggregate amount in excess of the sum of the applicable Fees in respect of the transaction or project that gave rise to the relevant loss.
14.1 You indemnify and hold us (and our directors and employees), harmless against all loss, damage, liability, costs and expenses (including legal costs) suffered or incurred by us:
- in respect of any claim or demand made by any person in connection with any of Your Content (as applicable) (including from a person’s use of Your Content);
- in respect of any claim or demand made by any person in connection with your use of any content obtained through our Services;
- in respect of any claim that any of Your Content (as applicable) infringes the Intellectual Property Rights of any person;
- in respect of your (or any person claiming through you) use of our Services or our Website or resulting from a breach of this Agreement by you and/or the violation byy ou of any law;
- any allegation that you or any of your employees or contractors is an employee or contractor of Milray Park at law or entitled to any employment related benefit, payment or entitlement (including but not limited to superannuation); and/or
- any liability Milray Park may have to pay any tax, levy or other impost, including all related interest, penalties and fines (including for late payment), where that liability arises as a consequence of you or any of your employees or contractors being regarded as an employee or independent contractor of Milray Park or entitled to superannuation at general law or under any legislation.
14.2 The indemnity referred to above shall be granted whether or not legal proceedings are instituted and, if such proceedings are instituted, irrespective of the means, manner or nature of any settlement, compromise or determination.
15 Suspension or termination
15.1 Without limiting any other rights of termination under this Agreement and subject to clauses 15.5 and 15.6, you may close your account with us and terminate this Agreement at any time and for any reason on written notice to us.
15.2 Without limiting any other rights of termination under this Agreement and subject to clauses 15.5 and 15.6, we may close your account with us and terminate this Agreement at any time and for any reason on written notice to you.
15.3 In addition to any other rights of suspension or termination under this Agreement, from time to time during the Term we may, without notice to you, suspend, disconnect or deny you access to any of our Services if you fail to comply with any of your obligations under this Agreement until the breach (if capable of remedy) is cured to our satisfaction. If you breach the terms of this Agreement, we reserve the right not to make any payment to you, which you may otherwise be entitled to under this Agreement.
15.4 Any amounts paid to us up to and including the date of termination will not be refundable.
15.5 If this Agreement is terminated you must immediately pay to us all outstanding amounts owing to us under this Agreement as at the date of termination.
15.6 Termination of this Agreement will not extinguish or otherwise affect any accrued rights or remedies of either party. The following clauses continue to apply after termination: Clauses 6, and 9 to 20 (inclusive).
16.1 A party shall not, without prior written approval of the other party, disclose the other party’s Confidential Information. A party shall not be in breach of this Agreement in circumstances where it is legally compelled to disclose the other party’s ConfidentialInformation.
16.2 Each party shall take all reasonable steps to ensure that its employees and agents do not disclose the other party’s Confidential Information.
16.3 The parties may disclose the other party’s Confidential Information:
- to its related companies, solicitors, auditors, insurers and accountants who require information for the purpose of this Agreement; or
- if required to disclose the information by law or the rules of any Stock Exchange
17 Amendments to this Agreement
- We may amend the terms of this Agreement (including our Services) from time to time. We will display a notice on the Website indicating when any such amendments have been made, and may provide written notification to you. All such amendments will be effective as of the date of publication of the updated applicable part of the Agreement on our Website.
- Your continued use of our Services, after such amendments are made in accordance with clause 17(a), shall be deemed to be acceptance of the amended terms.
18 Governing law and dispute resolution
18.1 This Agreement is governed by the laws of New South Wales, Australia, and the parties submit to the non-exclusive jurisdiction of the courts exercising jurisdiction there.
18.2 A party must not commence any arbitration or court proceedings relating to a dispute unless it has complied with the provisions of this clause, except where a party seeks urgent injunctive relief.
18.3 If there is a dispute arising out of or in connection with this Agreement, then:
- the party raising the dispute must first notify the other party in writing of the dispute, and provide sufficient detail to enable the dispute to be considered;
- the parties must discuss or enter into correspondence about the dispute and attempt to resolve it; and
- if the dispute is not resolved within 14 days of when the dispute was first notified, then the dispute shall be submitted to arbitration in accordance with, and subject to, the Institute of Arbitrators and Mediators Australia Fast Track Arbitration Rules.
19.1 You must not assign this Agreement without our prior written consent.
19.2 We may assign, novate or otherwise deal with this Agreement, or any rights or obligations under this Agreement, at any time without your consent by transfer to a third party. To the extent that you are required to give your consent to such an assignment, novation or other dealing, you hereby give your consent.
19.3 All notices must be in writing and addressed to the relevant party at the address as provided pursuant to this Agreement.
19.4 Each party must take all steps as may be reasonably required by the other party to give effect to the terms of this Agreement and transactions contemplated by this Agreement.
19.5 This Agreement contains the entire agreement between the parties with respect to its subject matter.
19.6 Each party acknowledges that in entering into this Agreement it has not relied on any representations or warranties about its subject matter except as provided in thisAgreement.
19.7 No delay, neglect or forbearance on the part of any party in enforcing against any other party any obligation under this Agreement will operate as a waiver or in any way prejudice any right under this Agreement.
19.8 If any provision of this Agreement is held to be invalid, illegal or unenforceable, thisAgreement will continue otherwise in full force and effect part from such provision which will be taken to have been deleted.
20 Definitions and interpretation
20.1 Definitions In this Agreement, unless the context otherwise requires:
“Acceptance Period” has the same meaning as in clause 5.6(b);\“Agreement” has the meaning given in clause 1(a);
“Agreement” has the meaning given in clause 1(a);
“Confidential Information” means the confidential information of a party which relates to the subject matter of this Agreement which is not already in the public domain through no breach by the recipient of its obligations of confidentiality owned to the discloser;
“Customer” means a person or entity that registers with us as a “Customer” in accordance with the registration procedure on our Website;
“Design Brief” means a document detailing the requirements for a Design Project and set out in the format prescribed on the Website;
“Design Phase” means the period directly following the selection of the winning FirstLook within which Customer and Designer work together to develop the Final DesignPackage. The Design Phase ends upon the submission of the Final Design Package to Customer.
“Design Phase Period” has the same meaning as in clause 5.3(b);
“Design Project” means a design project the subject of a Design Brief;
“Design Services” means the services provided by a Designer to a Customer in response to a Design Brief and in accordance with this Agreement;
“Designer” means a person or entity that registers with us as a “Designer” in accordance with the registration procedure on our Website;
“Designer Debrief” means a final message and any set up instructions from Designer to Customer and comprises part of the Final Design Package;
“Designer Fees” means part of the fees payable by a Customer to a Designer for the supply of the Design Services;
“Designer Registration Requirements” means the special registration requirements applicable to End Users wishing to register as a Designer, as specified on the Website(and amended from time to time);
“End User” has the meaning given in clause 2(a).
“Fees” means the total fees payable by a Customer to a Designer for the supply of theDesign Services;
“Final Design Board” means a visual representation of the agreed final design developed for Customer as a result of the Design Phase and comprises part of the Final Design Package;
“Final Design Package” means the deliverable package of items of a Design Project. The package comprises items described in clause 5.5(a);
“Floor Plan” means a to scale diagram of the space the design is to occupy showing how items of the design will be arranged and comprises part of the Final Design Package;
“Intellectual Property Rights” means all industrial and intellectual property rights including, but not limited to, copyright, trade marks, patents, circuit layouts, designs and confidential information and know how;
“Minimum Design Standards” means the minimum design standards specified on our Website;
“Moral Rights” means moral rights within the meaning of Part IX of the Copyright Act1968 (Cth) and any analogous rights arising under statute that exist, or may come to exist anywhere in the world;
“Personal Information” has the meaning given in the Privacy Act 1988 (Cth).
“First Look” means a visual representation of a proposed design(s) developed for aCustomer in response to a Design Brief;
“Platform Fee” means part of the fees payable by a Customer to a Designer for the supply of the Design Services, but which is retained by us as consideration for the supply of the Services;
“Privacy Laws” means the Privacy Act 1988 (Cth) and any legislation, rules, guidelines, codes or other instruments affecting privacy, Personal Information or the collection, handling, storage, processing, use or disclosure of personal data;
“Project Budget” means the budget for the Design Project specified by the Customer inits Design Brief;
“Project Timeline” means the period within which a Design Project is to be developed, and includes deadlines agreed between a Customer and Designer for the finalisation of particular tasks and/or deliverables for a Design Project, except as otherwise agreed by Milray Park.
“Services” has the meaning given in clause 2(a);
“Service Package(s)” means the Design Services available for purchase by Customers, as specified on the Website (and updated from time to time);
“Shopping List” means the recommended list of items to be purchased by the Customer in connection with a particular Design Project;
“Website” has the meaning given in clause 1(a);
“Work(s)” means the designs and other works created by a Designer for a Customer in the course of a Design Project;
“Term” means the duration of this Agreement, as specified in clause 3; and
“Your Content” means all content and materials uploaded, provided or submitted by you or on Your behalf to our Website or otherwise in connection with our Services, including any logos, designs, images, documentation, written and/or audio-visual content, music recordings, photographs, illustrations, information or specifications.
The following rules of interpretation apply to this Agreement unless the context requires otherwise:
- headings are for convenience only and do not affect interpretation;
- the singular includes the plural and conversely;
- a gender includes all genders;
- where a word or phrase is defined its other grammatical forms have a corresponding meaning
- the words ‘such as’, ‘including’, ‘particularly’ and similar expressions are not used as nor are intended to be interpreted as words of limitation;
- a reference to a person includes a body corporate, an unincorporated body or other entity and conversely;
- a reference to a clause or schedule is to a clause or schedule to this Agreement;
- a reference to any party to this Agreement or any other agreement or document includes the party’s successors and assigns;
- a reference to any agreement or document is to that agreement or document as amended, novated, supplemented, varied or replaced from time to time, where applicable, in accordance with this Agreement or that other agreement or document;
- a reference to any legislation or to any provision of any legislation includes any modification or re-enactment of it, any legislative provision substituted for it and all regulations and statutory instruments issued under it;
- a reference to conduct includes, without limitation, any omissions, statement or undertaking, whether or not in writing.