AUSMAR | Terms of Service

AUSMAR Terms of Service

TERMS AND CONDITIONS

1.0 Who we are and how to contact us

1.1 AUSMAR (the Business) is a business traded by AUSMAR Homes Pty. Ltd. A.C.N 087 236 208 (the Company, we, us and our). The Business provides residential building services, including custom home construction, new and commercial projects within (but not limited to) the Sunshine Coast and Brisbane region.

1.2 To contact us, please email [hello@ausmar.au], telephone our customer service line on 1800 AUMSAR or write to us at 8 Flinders Lane, Maroochydore, Queensland 4558. For more information about us, you may visit our website at https://ausmarhomes.com.au (our website).

2.0 Acceptance of Terms and our contract with you

2.1 These terms and conditions (Terms) apply to your access to and use of our website and dealings with the Business, and/or separately your acceptance of our Services and our supply of Services by us to you (Contract). To the extent permitted by law, no other terms are implied by trade, custom, practice or course of dealing.

2.2 You acknowledge there are “Quick Links” published on our website which must be read in conjunction with these Terms. Such links may be varied and updated from time to time, without notice to you.

2.3 By completing the “Get in Touch” online form or by ticking “Submit” when completing an online enquiry form or messaging via the “Chat with us” online message feature or “Login” into our website via your profile or ticking “I agree to Terms and Conditions” (or similar) button while accessing our website or if we have provided material to you or entering into a contract with us with respect to the Services, you indicate and confirm your agreement to be bound by these Terms.

2.4 Please take time to read our Terms and familiarise yourself with them, as they apply to the use of our website and our Services. By undertaking the above under this clause 2 and by accessing and using our website, social media channels and any other materials, products and services provided by us, corresponding with a member of the Business, you are taken to have accepted our Terms.

2.5 If you have completed the online enquiry form on behalf of one or more individual, you warrant that the information provided on behalf of the individual is true and correct, and that you are authorised to provide us with such information. In exchange, you acknowledge and authorise us to use and rely on such information for the purposes of facilitating the Services.

2.6 If you undertake any of the steps under clause 2.3 and 2.5 on behalf of another individual, it is your responsibility to present these Terms to the individual as such person(s) will be bound by these Terms.

2.7 The Contract is the entire agreement between you and us in relation to its subject matter. You acknowledge that you have not relied on any statement, promise or representation or assurance or warranty that is not set out in the Contract.

3.0 Service Enquiries

3.1 You acknowledge that by accepting our provision of the Services you may (among other things) enter into a contract for the sale of land and/or a build contract. In those circumstances, you acknowledge that you (and any other party to such contract) are bound to the terms of those contracts, in addition to these Terms.

3.2 These Terms are to be read separately to and independent of any build contract entered into between you and us.

3.3 If you enter into a contract connected to the provision of our Services, you warrant that you have full authority and legal capacity to enter into the contract for the duration of the contract term, including all necessary powers and consents to fully perform your obligations under the contract.

3.4 We may ask you various questions or requests for information. If requested, please diligently provide us with such requested information and/or confirmation to our queries to enable us to effectively assess your enquiry, our full scope of work and the provision of Services.

3.5 You warrant that all information and material provided to us (whether by you, your representative or on behalf of another person) is true and correct. You further acknowledge that we may rely on such information.

4.0 Our services

4.1 Our Services include (but are not limited to):

provision of residential construction;
provision of commercial construction;
provision of house and land packages as further detailed on our website;
various residential and commercial projects;
drafting relevant contracts;
operation of sales relating to residential and construction projects;
the marketing of various residential and construction projects;
working with customers in respect of custom build designs;
related work to that noted above, as disclosed to you from time to time.

4.2 Any descriptions or illustrations on our website are published for the sole purpose of giving an approximate idea of the services described therein. Such descriptions and illustrations are for general reference only and may be modified, superseded or rendered obsolete by the specific terms outlined in your signed documentation (including any build contract) and any current material provided by us to you.

4.3 We will supply the Services to you in accordance with the description of the Services confirmed by us in writing to you, and on the basis that we have received all requested information to properly disclose our Services.

4.4 We have various display homes as periodically disclosed and updated on our website (Display Homes). Our Display Homes were constructed to provide information to you (and customers generally) about our designs, floor plans and build features. We may change, modify, enhance, alter or remove a Display Home without notice to you.

4.5 You acknowledge and accept that the purpose of the Display Home is simply to display and illustrate the nature and features of the build, and that every project and build is different, and subject to the terms of your build contract with us (including the exchanges between the contracting parties), of which prevail over any other descriptions or illustrations on our website, or that in a Display Home.

5.0 Payments and Charges

5.1 We may provide you with invoices for payment. Payment by you must be made in accordance with our invoice terms and otherwise payable upon our demand. Any late payments will be charged interest in accordance with our invoice terms and in the absence of such terms, at the rate of 15% per annum, calculated daily and compounding monthly until the debt is paid in full.

5.2 Any payments by you in connection with a build contract or any other signed agreement with us must observe the contract terms therein and failing disclosure of such terms, the terms in this clause 5 apply.

5.3 We reserve the right to suspend the provision of our Services (and exercise other rights under these Terms and/or other contract on foot with you) until payment of an invoice(s) is paid in full.

5.4 If you use a third party payment application or service, you are solely responsible for any losses or damages arising out of or in connection with the use or operation of such application or service. We are not responsible for the security of such third party payment application or service. You acknowledge and warrant that you have read, understood and agree to be bound by the terms and conditions of the applicable third party payment application and service that you choose to use as a payment method for making a payment to us.

5.5 You acknowledge and agree that where a request for a payment to us is returned or denied, for whatever reason, by your financial institution or your elected third party payment application or service, then you are liable for any costs, including banking fees and charges, associated with such returned or denied payment request.

5.6 Where GST is payable in respect of some or all of the Services, you must pay us such additional amounts in respect of GST, at the applicable rate.

6.0 Legal use and conduct

6.1 You agree to use and engage in our Services for proper and legal purposes only.

6.2 You agree to interact with our staff and members with courtesy and respect. We do not tolerate any unlawful behaviour or behaviour that may cause or potentially cause an abuse, harassment, violence or discriminatory behaviour to our staff or members.

We may refuse to do assist you or provide the Services immediately without notice if we reasonably consider you are engaging in or associated with any conduct or behaviour described in clauses 6.1 and 6.2 above.

7.0 Your obligations

7.1 It is your responsibility to ensure that:

the information provided by you to us are complete and accurate;
you cooperate with us in all matters relating to the Services;
you observe the terms in any build contract between you and us, including providing clear, safe and unobstructed access to site to our staff and subcontractors;
you provide us with such information and materials we may reasonably require in order to supply the Services, and ensure that such information is complete, accurate and up-to-date;
you obtain and maintain all necessary licences, permissions, pre-approvals, authorisations and consents which may be required for the Services before the date on which the Services are to start (and otherwise observe the terms of any separate contract entered into between you and us);
you comply with all applicable laws, including health and safety laws;
you maintain all of our materials, equipment, documents, plans, concepts, drawings, designs, sketches and other property, whether published on our website or paper form (Our Materials) in good condition, and must not dispose, disclose, misuse, duplicate, licence or use Our Materials without our prior written consent (which can be withheld in our absolute discretion) and otherwise in accordance with our written directions;
you follow all of our reasonable directions and instructions in using our Services; and
your conduct, whilst interacting with us or remaining as a member of us, do not adversely impact, harm, damage or jeopardize our name, reputation or goodwill in any way.

7.2 If our ability to perform the Services is prevented or delayed by any failure by you to fulfil any obligation listed in clauses 7.2 (Your Default):

we will be entitled to suspend performance of the Services until you remedy Your Default, and to rely on Your Default to relieve us from the performance of the Services, in each case to the extent Your Default prevents or delays performance of the Services. In certain circumstances Your Default may entitle us to terminate the Contract;
we will not be responsible for any costs or losses you sustain or incur arising directly or indirectly from our failure or delay to perform the Services; and
it will be your responsibility to reimburse us on written demand for any costs or losses we sustain (including under these Terms) or incur arising directly or indirectly from Your Default (including legal costs on a full indemnity basis).

8.0 Indemnity

8.1 To the maximum extent you agree to fully indemnify us, our affiliates, employees, agents, contractors, third party content providers and licensors (including any Head Licensor) (Indemnified Persons) and hold the Indemnified Persons harmless from and against all actions, suits, claims, demands, losses (including any direct, indirect, special or consequential losses), liabilities, damage, charges, expenses, interests, penalties and costs (including legal costs calculated on a full indemnity basis) incurred, suffered or arising out of or in connection with:

any breach of your obligations contained in these Terms;
your breach or negligent performance or non-performance of these Terms;
the enforcement of this Contract;
any claim made against us for actual or alleged infringement of a third party’s intellectual property rights in relation to your interaction with us or use of our Services;
any claim made against us by a third party arising out of or in connection with the provision of the Services to you;
any claim made against us by a third party for death, personal injury or damage to property arising out of or in connection with your use of our Services.

8.2 The indemnities in clause 8.1 apply whether or not you have been negligent or at fault.

8.3 The indemnities in clause 8.1 are continuing obligations of you, independent from your other obligations under these Terms and survive termination or expiry of the Contract, and they are absolute and unconditional and unaffected by anything which otherwise might have the effect of prejudicing, releasing, discharging or affecting your liability.

9.0 Intellectual property rights

9.1 All intellectual property rights in or arising out of or in connection with the Services will be owned (or duly licenced by arrangement) by us.

9.2 You agree and acknowledge your obligations under clause 7.1 which extends to our intellectual property.

9.3 Your use of Our Materials and any intellectual property owned by us (with regard to clause 21) is (strictly) not a right to duplicate, transfer, licence or sublicence, misuse, disclose, assign, novate, copy or otherwise transfer the rights grants under this clause 9. Such material provided to you is provided strictly in connection with the provision of our Services to you during the course of any such contract with us and for no other purpose. This clause 9.3 survives termination of this Contract and is an essential term.

9.4 You acknowledge and accept that your breach of clause 9.3 will cause us consequential loss and you hold us indemnified for any loss and damage associated with your breach, omission, act or negligence.

9.5 For the avoidance of doubt, the Contract herein under these Terms will terminate when you cease dealings with us or otherwise upon our written confirmation; and separately, according to any such build contract with us.

9.6 We may take and use photographs or video footage of your home or the project to be used for our website, social media, commercial or marketing purposes. You (and your invitee, if applicable) agree to be photographed or filmed in our video footages. If you (and/or your invitee, if applicable) do not wish your image to be used or included in any of our audio-visual material, please inform us in writing before participating with us.

10.0 Privacy Policy
10.1 We will use any personal information you provide to us to:

provide the Services;
process your payment for the Services; and
inform you about similar services that we provide, but you may stop receiving this information at any time by contacting us in writing.

10.2 Further details of how we will process personal information are set out in our privacy policy (Privacy Policy). A copy of our Privacy Policy is available for download from our website.

11.0 Limitation of liability

11.1 We do not promise or guarantee that the Services will be in strict accordance with your directions, especially with consideration to our scope of work, or if the Services vary and other variables to consider under any contract between you and us.

11.2 Nothing in this Contract limits or excludes our liability:

for death or personal injury caused by our negligence or willful misconduct or that of our employees, as applicable;
for fraud or fraudulent misrepresentation by us or our employees, as applicable; or
where liability cannot be limited or excluded by applicable law.

11.3 Subject to clause 11.2 we will not be liable to you, whether in contract, tort (including negligence) or otherwise, for any special, indirect or consequential loss arising under or in connection with this Contract, including any:

loss of profits;
loss of sales or business;
loss of production;
loss of agreements or contracts;
loss of business opportunity;
loss of anticipated savings;
loss of or damage to goodwill;
loss of reputation; or
loss of use or corruption of software, data or information.

11.4 Nothing in this Contract is intended to have the effect of excluding, restricting or modifying the application of all or any of the provisions of Part 5-4 of the Australian Consumer Law in Schedule 2 of the Competition and Consumer Act 2010 (Cth) (ACL), or the exercise of a right conferred by such a provision, or any liability of ours in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL to a supply of services.

11.5 If we are liable to you in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL that cannot be excluded, our total liability to you for that failure is limited to, at our option, the resupply of the services or the payment of the cost of resupply.

11.6 This clause 11 will survive termination of the Contract.

12.0 Confidentiality

12.1 You undertake that you will not at any time, and for a period of five years after termination of the Contract, disclose to any person any confidential information concerning our business, affairs, customers, clients or suppliers, except as permitted by clause 12.2.

12.2 You may disclose our confidential information:

where the information is in the public domain as at the date of this Contract (or subsequently becomes in the public domain other than by breach of any obligation of confidentiality binding on you);
if you are required to disclose the information by applicable law or the rules of any recognised stock exchange, provided that you have consulted with us as to the form and content of the disclosure;
where the disclosure is expressly permitted under this Contract;
if disclosure is made to your professional advisers to the extent necessary to enable you to properly perform your obligations under this Contract, in which case you must ensure that such persons keep the information secret and confidential and do not disclose the information to any other person;
where the disclosure is required for use in legal proceedings regarding this Contract; or
if we have consented in writing before the disclosure.

13.0 Force majeure

13.1 We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under the Contract that is caused by any act or event beyond our reasonable control (Event Outside Our Control).

13.2 If an Event Outside Our Control takes place that affects the performance of our obligations under the Contract:

we will contact you as soon as reasonably possible to notify you; and
our obligations under the Contract will be suspended and the time for performance of our obligations will be extended for the duration of the Event Outside Our Control. We will arrange a new date for performance of the Services with you after the Event Outside Our Control is over.

13.3 You may cancel the Contract affected by an Event Outside Our Control which has continued for more than three months. To cancel please contact us in writing.

14.0 Non-solicitation

14.1 During the Term of this Contract and for a period of 12 months following the termination or expiration of this Contract, you will not make any solicitation to employ our personnel without our prior written consent.

15.0 Notices

15.1 When we refer to "in writing" in these Terms, this includes email.
15.2 Any notice or other communication given under or regarding these Terms must be in writing and be delivered personally, sent by pre-paid post or email.
15.3 A notice or other communication is deemed to have been received:

if delivered by hand to the nominated address, when delivered to the nominated address;
if sent by pre-paid post, at 9.00 am (addressee's time) on the second Business Day after the date of posting; or
if sent by email, at the time the email is sent (as recorded on the device from which the sender sent the email) unless the sender receives an automated message that the email has not been delivered.

15.4 In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an email, that such email was sent to the specified email address of the addressee.

15.5 The provisions of this clause will not apply to the service of any proceedings or other documents in any legal action.

16.0 Variation

16.1 We reserve the right to change or modify these Terms at any time, consistent with applicable laws and principles and without notice to you. These changes will be effective as of the date we post the revised version on our website. It is your responsibility to review these Terms prior to use and periodically throughout your use of our website and services.

16.2 Your continued use of our website and our services, including any interaction between you and us relating to events, membership, social media, newsletters and other products or services provided by us is deemed as acceptance of any modifications and amendment to these Terms.

17.0 No waiver

17.1 Neither of us may rely on the words or conduct of any other party as being a waiver of any right, power or remedy arising under or in connection with these Terms unless the other party or parties expressly grant a waiver of the right, power or remedy. Any waiver must be in writing, signed by the party granting the waiver and is only effective to the extent set out in that waiver.

17.2 Words or conduct referred to in clause 1 include any delay in exercising a right, any election between rights and remedies and any conduct that might otherwise give rise to an estoppel.

18.0 Assignment and novation

18.1 We may assign or transfer our rights and obligations under the Contract to another entity.

18.2 You may only assign or transfer your rights or your obligations under the Contract to another person if we agree in writing.

18.3 A breach of clause 2 by you entitles us to terminate this Contract.

19.0 Severability

19.1 If the whole or any part of a provision of these Terms is or becomes invalid or unenforceable under the law of any jurisdiction, it is severed in that jurisdiction to the extent that it is invalid or unenforceable and whether it is in severable terms or not.

19.2 Clause 19.1 does not apply if the severance of a provision of these Terms in accordance with that clause would materially affect or alter the nature or effect of the parties' obligations under these Terms.

20.0 Relationship of the parties
The Contract is between you and us. No other person has any rights to enforce any of its terms.

21.0 Announcements and Promotions

21.1 No party will make, or permit any person to:

make any public announcement statement, press release or other publicity or marketing materials concerning the existence, subject matter or terms of this Contract, the wider transactions contemplated by it, or the relationship between the parties; or
use (in any manner) the other party's trade marks, service marks, trade names, logos, symbols or brand names, in each case;

strictly without our prior written consent, except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.

Promotions

21.2 We may publish various promotions with respect to our Services (on our website or paper material) from time to time, without notice to you.

21.3 Any promotions published by us are subject to the terms and conditions connected to such offer or promotion, and your completion of any conditions precedent in order to be eligible for such offer or promotion. We must be (reasonably) satisfied that you have met all requirements and conditions precedent.

21.4 Notwithstanding any offer or promotion that you are eligible for or contract into with us, such promotion is to have specific regard to the terms of your build contract entered into between you and us.

21.5 We reserve the right to modify inclusions, specifications, products, pricing, materials, suppliers, or substitute items with similar products, without notice to you. You acknowledge that the materials in this clause 21.5 depend on our access to such materials, pricing considerations, changes to our designs and plans, economic and market considerations and the operations of the business generally.

21.6 We also reserve the right to modify or terminate any promotion or offer at any time, at our sole discretion. We will use reasonable efforts to provide timely notice of any changes or termination to our promotions. Product substitutions may occur if listed items are unavailable. From time to time, images or illustrations may display upgraded features not included in a promotion and are for illustrative purposes only, with specific regard to the terms of your build contract with us.

22.0 Dispute Resolution

22.1 A party to this Contract under these Terms claiming that a dispute has arisen from or in connection with this Contract (Dispute) must not commence court or arbitration proceedings arising from or relating to the Dispute, other than a claim for urgent interlocutory relief, unless that party has attempted to resolve the Dispute in accordance with this clause

22.2 Compliance with this clause is a condition precedent to the right of any party to commence litigation or arbitration arising from, or in connection with, the Dispute.

22.3 A party to this Contract claiming that the Dispute has arisen must give a written notice to the other party to this Contract, specifying the nature of the Dispute (Dispute Notice) together with relevant supporting documents.

22.4 Following service of the Dispute Notice, the parties must meet promptly and within 30 days from the date of service of the Dispute Notice and attempt in good faith to resolve the Dispute.

22.5 If the parties have for any reason been unable to resolve the Dispute within 30 days of service of the Dispute Notice, the parties must attempt to settle it in good faith by mediation administered by the Australian Disputes Centre (ADC), in accordance with the ADC Guidelines for Commercial Mediation applicable at the time the matter is referred to the ADC and which are deemed to be incorporated into these Terms. The mediation will be held in Brisbane, Australia.

22.6 If 60 days have elapsed after the start of a mediation of the Dispute and the Dispute has not been resolved, either party may request the mediator to terminate the mediation and the mediator must do so.

22.7 This clause 22 survives termination or expiry of this Contract.

22.8 Any dispute resolution terms comprised any separately documented contract between you and us shall prevail above this clause 22.

23.0 Priority documents

23.1 The terms of any build contract (including all annexures to such contract) entered into between you and us will prevail over these Terms. These Terms will rank second to any build contract, and only prevail to the extent of any inconsistency, except for gross mistake or error.

24.0 Governing law and jurisdiction

24.1 These Terms, their subject matter and their formation, are governed by the laws of Queensland, Australia without reference to conflict of law principles.

24.2 Each party irrevocably submits to the exclusive jurisdiction of courts exercising jurisdiction in Queensland, Australia and courts of appeal from them in respect of any proceedings arising out of or in connection with these Terms.

24.3 Each party irrevocably waives any right it has to object to the venue of any legal process in the courts described in clause 24.2 on the basis that:

any proceeding arising out of or in connection with these Terms has been brought in an inconvenient forum; or
the courts described in clause 24.2 do not have jurisdiction.

TERMS OF SERVICE

AUSMAR Terms of Service