CUSTOM PROJECTS

Terms and Conditions

The meaning of some words used in these terms and conditions

we, us, reSPOKE or our is a reference to Hughes & Masgai Pty Ltd (ACN 613 351 531) trading as reSPOKE of 47-49 Cheriton Street, West Perth in the State of Western Australia.

you or your is a reference to the person to whom we are providing our Services and who is required to pay for the Services we provide.

Completion means when, in our sole but reasonable determination and discretion, the Services have been completed.

Intellectual Property Right means any patent, registered design, trademark or name, copyright or other protected right.

Materials means any materials, goods, parts or items we need to buy necessarily in order to perform the Services.

Parties is a reference to both us and you.

Personal Property means property that is personal property (as defined in the PPSA) and to which the PPSA applies.

PPS Law means:

  1. the PPSA and any regulations made under the PPSA as amended from time to time; and

  2. any amendment made to any other legislative requirements as a consequence of the PPSA or any regulations made under the PPSA including amendments to the Corporations Act.

PPSA means the Personal Property Securities Act 2009 (Cth).

Premises means the place where the Product will either be displayed, fitted or installed as the case may be.

Product means the art work(s), fabrications, fit-out, furniture or any other such item which is brought about or created by us carrying out the Services.

Schedule means the Schedule to these Terms and Conditions.

Security Interest means:

  1. in relation to any Personal Property, has the same meaning as in the PPSA; and

  2. in relation to property other than Personal Property, means any security or the payment of money or performance of obligations including any security or preferential interest or arrangement of any kind, or any other right of or arrangement with any creditor to have its claims satisfied prior to other creditors with, or from proceeds of sale of any asset including, without limitation, retention of title other than in the ordinary course of business and any deposit of money by way of security.

Services means the services we will be providing to you that are set out in the Works Order and any other ancillary or additional works which we may agree, in writing or orally, from time to time.

Works Order means the document entitled Works Order provided by us to you setting out the Services and associated costs. 


Force Majeure means "Event of Force Majeure" means an event beyond the control of the Authority and the Operator, which prevents a Party from complying with any of its obligations under this Contract, including but not limited to: 

(a) act of God (such as, but not limited to, pandemic, fires, explosions, earthquakes, drought, tidal waves and floods); 

(b) war, hostilities (whether war be declared or not), invasion, act of foreign enemies, mobilisation, requisition, or embargo; 

(c) rebellion, revolution, insurrection, or military or usurped power, or civil war; 

(d) contamination by radio-activity from any nuclear fuel, or from any nuclear waste from the combustion of nuclear fuel, radio-active toxic explosive, or other hazardous properties of any explosive nuclear assembly or nuclear component of such assembly; 

(e) riot, commotion, strikes, go slows, lock outs or disorder, unless solely restricted to employees of the Supplier or of his Subcontractors; or 

(f) acts or threats of terrorism. 


  1. Entering into a legally binding contract

    1. This document is an offer for us to provide the Services and the Products. This offer may be accepted by:

      1. you signing and returning a Works Order;

      2. you agreeing (including orally) that we should provide the Services; and

      3. your conduct.

  2. Providing the Services

    1. Once we and you have entered into a legally binding contract, we will normally start providing the Services to you straight away or on a date agreed between us without further discussion with you. Occasionally the Services will be provided at some other date or time dependent on a number of factors.

    2. Our aim is to always provide you with the Services:

      1. using reasonable care and skill;

      2. in compliance with commonly accepted practices and standards; and

      3. in compliance with the relevant laws and regulations in force at the time we carry out the Services.

  3. Access to the Premises

If we require access to the Premises to carry out the Services:

  1. we:

    1. will provide you with notice at least 24 hours prior to requiring access to the Premises (which may be by the Works Order); and

    2. will provide the Services on normal working days and start work no earlier than 8am and finish work no later than 6pm. A normal working day for us means Mondays to Fridays, excluding any bank, public or other national holidays or otherwise as agreed between the Parties.

  2. you:

    1. agree that it is your responsibility to provide us with access to the Premises as may be required by us;

    2. will provide access to the Premises free from any extraneous materials, fixtures or fittings and equipment that may prevent, in our sole opinion, us carrying out the Services; and

    3. will be responsible for taking reasonable care of and the security of the Product while it is at the Premises, whether we have completed carrying out the Services or not.

  1. Materials

    1. At the time we perform the Services we may not have all the Materials we need to perform the Services. This may be for a number of reasons, such as:

      1. we have not provided an estimate and cannot reasonably establish what Materials are necessary until we start performing the Services; or

      2. where we have provided an estimate, it may not have been reasonably possible to establish the need for particular Materials at the time we provided the estimate (the need for the particular Materials may only be revealed when we start performing the Services); or

      3. whether or not we have provided an estimate, the condition of an item or the area which is the subject of the Services may only become apparent when we start performing the Services and it was not reasonably possible to establish it until that point.

    2. In such cases we may need to purchase Materials. 

    3. If the Materials are available from a local supplier, then we normally wish to travel to the supplier and purchase the Materials and return to continue performing the Services. We reserve our rights to charge for any additional costs incurred in carrying out works and purchasing materials outside the scope of the Services. 

  2. Price, estimates and payment

    1. Our charges based on fixed fee

      1. We will charge you for our Services on a fixed-fee basis in accordance with the terms set out in Item 1 of the Schedule and will provide you with a valid GST tax invoice for each payment required under Item 1 of the Schedule.

      2. Each invoice provided to you by us is payable within seven (7) days of us sending it. No allowance is made for any internal approval process.

      3. We will carry out the Services in accordance with Item 3 of the Schedule.

      4. We reserve our rights to charge additional fees should we carry out services outside the scope of the Services set out in the Works Order.

      5. You agree to make payment of the amount/(s) specified in the Works Order to the bank account set out in and in accordance with the fee schedule set out in the Schedule.

    2. GST

Unless expressly stated otherwise by us in writing, all amounts stated (whether orally or in writing) are GST exclusive and subject to the below:

  1. except for terms defined in this agreement, capitalised expressions set out in this clause bear the same meaning as those expressions in the new tax system Goods and Services Tax Act 1999 (Cth);

  2. unless this agreement provides otherwise, and subject to this clause, any consideration that may be provided for under the agreement is exclusive of GST. If a party makes a taxable supply with this agreement for a consideration which represents its value, then the recipient of the taxable supply must also pay, at the same time and as the value is otherwise payable, any GST payable regarding the taxable supply. A party's right to payment under this clause is subject to a valid tax invoice being delivered to the recipient of the taxable supply;

  3. if one party must reimburse another party for costs incurred by the other party, those costs include no amount in respect of GST for which the other party may claim an input tax credit; and

  4. if any consideration payable to a party under this agreement is determined by reference to another amount, the GST exclusive amount of the other amount must be used

  1. If you do not pay when required to

If you fail to make payment within seven (7) days of the later of any date for payment in accordance with Item 1 of the Schedule or the date of our invoice, we may:

  1. charge you interest on any outstanding amount at the rate of 6.0% per annum from the date of our invoice until payment. If we charge you in accordance with this clause, interest accrues daily; and

  2. suspend performing the remaining Services until you make payment.

  1. PPSR

You grant to us Security Interests over (i) the Products and (ii) the Materials (in this clause 6.4 Collateral) to secure payment of all or part of the price of the Services and the Products, by way of a purchase moneys security interest.

  1. Security Interest continues

If you dispose of or otherwise deal or agree to deal with the Collateral in breach of these terms and conditions, you acknowledge that:

  1. we have not:

    1. authorised any disposal or dealing or agreement to deal; or

    2. agreed that any disposal or dealing or agreement to deal will extinguish any Security Interest held by us; and

  2. our Security Interest continues in the Collateral despite the disposal or dealing or agreement to deal.

  1. Restricted dealing with Collateral

    1. Except with our prior written consent, you must not or must not agree, attempt to or take any step to do (whether by one transaction or a series of transactions, whether related or not or voluntary or involuntary) any of the following:

      1. create or attempt to create or agree or permit to exist any Security Interest over the Collateral;

      2. sell, assign, transfer, declare a trust over or otherwise dispose of the Collateral;

      3. give control or possession of the Collateral to another person other than us; or

      4. compromise any Collateral.

  2. PPSA notices

    1. We are not obliged to give any notice under the PPSA (including notice of a verification statement) unless the notice is required by the PPSA and cannot be excluded; and

    2. You consent to the waiver of the requirement for notice under this clause (c) and waive any rights you have to receive a notice under sections 95, 118, 121(4), 130 and 157 of the PPSA.

  3. Contracting out of PPSA provisions

    1. To the extent that Chapter 4 of the PPSA would otherwise apply to enforcement by us of any Security Interest in the Collateral, the Parties agree that:

      1. to the extent permitted by section 115(1) of the PPSA, the Secured party need not comply with sections 125, 132(3)(d) and 132(4);

      2. sections 142 and 143 of the PPSA are excluded; and

      3. to the extent permitted by section 115(7) of the PPSA, the Secured party need not comply with sections 132 and 137.

    2. You consent to the waiver of the requirement for notice under any other provision of the PPSA that we may notify to you after the date of this document and waive any rights you have to receive that notice.

    3. If we exercise a right, power or remedy in connection with this document, that exercise is taken not to be an exercise of a right, power or remedy under the PPSA unless we state otherwise at the time of exercise. However, this clause does not apply to a right, power or remedy which can only be exercised under the PPSA.

  1. Title and Risk

    1. Risk in the Product passes to you immediately upon delivery of the Product to the Premises by us.

    2. Notwithstanding (a) above, property and title in the Product supplied to you and any Materials delivered to the Premises under these Terms And Conditions does not pass to you until all money (including money owing in respect of other transactions between the us and you) due and payable to us by you have been fully paid.

    3. Where we provide the Product to you without payment in full or deliver any Materials to you, you:

      1. are a bailee of the Product and any Materials until property in them passes to you;

      2. irrevocably appoint us to be your attorney to do all acts and things necessary to ensure the retention of title to goods including the registration of any security interest in our favour with respect to the Product and any Materials under applicable law (as set out in clause 6.4 above);

      3. must be able upon demand by us to separate and identify as belonging to us the Product or any Materials  supplied by us from other goods which are held by you;

      4. must not allow any person to have or acquire any security interest in the Product or any Materials;

      5. agree that we may repossess the Product and any Materials if any payment is not made within the time required (or such longer time as we may, in our complete discretion, approve in writing); and

      6. grant us (or our agent) an irrevocable licence to enter the Premises in order to recover possession of Product and any Materials. You indemnify us and our agents for any damage to property or personal injury which occurs as a result of us or our agents entering upon the Premises.

  2. Intellectual Property

    1. Assignment of copyright

      1. If the Services expressly states that you will receive the copyright in reSPOKE’s design services, to the extent the Services is or includes design services, once you have paid all money to reSPOKE in the Schedule for the Work (which may be broader than the design services), reSPOKE will assign to Client all world-wide rights, title and interest of reSPOKE in all copyright subsisting in the Product to the extent referred to in the Services.

      2. If the Services do not expressly state that you will receive the copyright in reSPOKE’s design services, then upon Completion, reSPOKE grants a licence to Client to use the copyright in the Product for the particular project disclosed to reSPOKE or expressed in the Services and for repairs and maintenance of the Product.

    2. Perfecting the assignment

      1. You and reSPOKE agree to do all things necessary (including preparing and executing documents) to perfect the assignment of the copyright.

      2. You must pay reSPOKE’s fees and costs associated with the assignment of the copyright.

      3. The assignment is on the condition that, at all times after the assignment, Client must ensure that the Product is not subjected to any treatment which is prejudicial to the honour and reputation of reSPOKE or that infringes reSPOKE moral right of false attribution of authorship.

      4. After the copyright has been assigned to Client, Client provides a world-wide, royalty-free, non-revokable licence to use, reproduce or adapt any work created by it for the purpose of self-promotion.

  3. Defects liability

    1. If you become aware of a defect either during the course of the Services being provided or at Completion or during the 12 months following Completion, you must notify us as soon as practicable.

    2. In the event of a defect, at our election, we may rectify the defect at our expense within the time specified by us or, if no time is specified, within a reasonable time or  at our expense, obtain a third part to rectify the defect; or

    3. We are not liable to rectify any defect that arises out of or in connection with:

      1. damage that occurs as a result of fair wear and tear;

      2. the inherent characteristics of the material used to create the Product;

      3. the abuse, neglect or negligence of the Product by you; or

      4. fire, flood, abrasion, erosion, corrosion, collision or any foreign materials due to the environment in which the Services were carried out. 

  4. Liability 

    1. Our maximum liability under these terms and conditions is the total sum we charge you for the Services. Notwithstanding any other provision of these terms and conditions, we shall not be liable for any consequential loss, however so arising.

    2. reSPOKE warrants that:

      1. when it approves any Services, Client has carefully checked every element in the Services and that there are no errors in those Services;

      2. Client’s use of the Product, any reproduction or adaptation of the Product and any part of the Product is not contrary to law and will not infringe any third party’s rights; and

      3. reSPOKE’s use of the Product and any reproduction or adaptation of the Product or a part of the Product is not contrary to law and will not infringe any third party’s rights.

    3. Client must indemnify reSPOKE, its contractors, employees and directors against any loss or damage suffered which is caused by a breach of this Agreement by Client.

  5. Communicating with us

    1. Any notice or letter required by these Terms and Conditions needs to be sent to the postal address or email address set out in the Works Order.

    2. Any letter or notice to you will use the postal address or email address you have given in the Works Order.

  6. Termination of contract by you

    1. Once we and you enter into a binding contract you will normally not be able to terminate the contract, except where we agree or as otherwise provided for in this contract.

    2. If we agree to terminate the contract then you will be responsible for the cost of:

      1. any of our time in performing the Services up to the date we stop providing the Services; and

      2. any Materials we are contractually committed to buying up to the date of termination (whether or not we need to pay for them before or after the date the contract between us and you is terminated). Any Materials we have purchased (but not used in performing the Services) will be delivered to you.

    3. If you:

      1. purport to terminate the contract; or

      2. give notice purporting to terminate the contract; or

      3. otherwise do not fulfil your obligations (such as by not paying any sums due to be paid to us) in a way which amounts to you terminating the contract,

We do not have to accept your termination of the contract except as provided in paragraph (b) or as otherwise provided for in this contract. However, we may choose to accept termination of the contract, and if we choose to do so you will be required to pay to us a reasonable amount for the losses and costs (including loss of profit) we have suffered. If you have paid a deposit, this will be retained and if our reasonable losses and costs (including loss of profit) are greater than the deposit we have retained we will require you to pay for our losses and costs in excess of the deposit retained.

  1. Dispute Resolution

    1. The parties consent to all disputes arising out of or in connection with these terms and conditions (Dispute) being finally resolved or determined by: 

      1. the online dispute resolution service contained at judicate.co (Judicate); and 

      2. the Rules governing the procedures of Judicate from time to time,

provided the Dispute is one which Judicate agrees to determine.

  1. To the extent that a party seeks to have a Dispute resolved or determined in a different forum, including but not limited to a Court, another party may apply to have that process or proceeding stayed and/or dismissed.  Nothing in this clause prevents a party from commencing proceedings for urgent or interlocutory relief where appropriate. 

  1. Amendments to the contract terms and conditions

    1. We have the right to amend the terms and conditions of this contract where:

      1. we need to do so in order to comply with changes in the law or for regulatory reasons; 

      2. we need to correct any errors or omissions (and this right includes the right to change any of the documentation which forms part of the contract), as long such correction is minor and does not materially affect the contract; or

      3. we need to correct any errors or omissions (and this right includes the right to change any of the documentation which forms part of the contract), as long such correction is minor and does not materially affect the contract.

    2. Where we are making any amendment pursuant to clause (a) above, we will give you 30 days' prior notice (unless the contract is terminated before that period).

    3. The parties may only otherwise amend or vary these terms and conditions by a written document executed by representatives of both parties. reSPOKE expressly does not agree to any terms and conditions contained in a purchase order or other document provided by you after the date of acceptance of these terms and conditions.

  2. Variations during the provision of the Services

    1. When the Services include design services, then, during the design phase, of the Services, you are entitled to the number of rounds of variations to the designs specified in the Services. If the Services are silent on the number of rounds of variations, one round is specified. This entitlement does not include any material variations.

    2. At the completion of the design phase of any Services, you must confirm satisfaction with the design of the Product. When confirming satisfaction, you warrant that you have carefully checked every element in the design of the Product and that there are no errors.

    3. Whether or not a requested variation referred to in clause 15(a)  is a material amendment to the Services will be determined by us in our absolute discretion.

    4. When a requested variation is a material change to the design, we may provide you with a new Schedule of Works and pricing, which the Client can accept or reject. We are entitled to stop work until such time as you accept the Schedule of Works.

    5. If you do not accept a new or replacement Schedule of Works issued in accordance with clause 15(d), within the time requested (or otherwise a reasonable period of time) or such longer time as we allow, our obligations under this Agreement immediately terminate and the provisions of clause 12(b) apply.


16         Law and jurisdiction

  1. This agreement takes effect, is governed by, and is construed in accordance with the laws from time to time in force in Western Australia. 

  2. The Parties submit to the exclusive jurisdiction of the courts of Western Australia.

17 Consequences of Force Majeure Event 

(a)    Neither you nor Respoke shall be considered in breach of this Contract to the extent that performance of their respective obligations (excluding payment obligations) is prevented by an Event of Force Majeure that arises after the Effective Date. 

(b)      If Respoke is prevented from carrying out its obligations hereunder we shall give notice to you of an Event of Force Majeure upon it being foreseen by, or becoming known to us. 

(c)    If and to the extent that Respoke is prevented from executing the Services by the Event of Force Majeure, Respoke shall be relieved of its obligations to provide the Services but shall endeavour to continue to perform its obligations under the Contract so far as reasonably practicable [and in accordance with Good Operating Practices], [PROVIDED that if and to the extent that Respoke incurs additional Cost in so doing, we shall be entitled to the amount of such Cost [COST BEING DEFINED AS HAVING NO PROFIT COMPONENT] (We will take all reasonable steps to mitigate the Cost)]. 

(d)     If and to the extent that Respoke suffers a delay during the Construction Period as a result of the Event of Force Majeure then it shall be entitled to an extension for the Time for Completion in accordance with Sub-Clause 12.

(e) The Contract Period shall be extended by a period of time equal to the period of interruption caused by an Event of Force Majeure. 

(f) Optional Termination, Payment and Release Irrespective of any extension of time, if an Event of Force Majeure occurs and its effect continues for a period of [180] days, either You or Respoke may give to the other a notice of termination, which shall take effect [28] days after the giving of the notice. If, at the end of the [28]-day period, the effect of the Force Majeure continues, the Contract shall terminate. After termination under this Sub-Clause [17 f], the Operator shall comply with Sub-Clause [termination provisions] and you shall pay us an amount calculated and certified in accordance with this agreement. 

Entire Agreement

These terms and conditions contain the entire agreement and understanding between the Parties. These terms and conditions succeeds and cancels all other agreements and understandings and no representation, undertaking or covenant given by either Party to the other prior to the date of the Works Order being executed, has any effect on these terms and conditions and to the extent to which they impose obligations or liabilities on either Party in relation to any of the matters the subject of these terms and conditions, all of those obligations and liabilities are forever extinguished and all rights relating thereto are forever abandoned and waived.