Policies

DWELLNESS WEBSITE TERMS OF SERVICE

Effective Date: 1 January 2024

OVERVIEW
This website is operated by DWELLNESS. Throughout the site, the terms “we”, “us” and “our” refer to DWELLNESS. DWELLNESS offers this website, including all information, tools and Services available from this site to you, the user, conditioned upon your acceptance of all terms, conditions, policies and notices stated here.

By visiting our site and/ or purchasing something from us, you engage in our “Service” and agree to be bound by the following terms and conditions (“Terms of Service”, “Terms”), including those additional terms and conditions and policies referenced herein and/or available by hyperlink. These Terms of Service apply to all users of the site, including without limitation users who are browsers, vendors, customers, merchants, and/ or contributors of content.

Please read these Terms of Service carefully before accessing or using our website. By accessing or using any part of the site, you agree to be bound by these Terms of Service. If you do not agree to all the terms and conditions of this agreement, then you may not access the website or use any Services. If these Terms of Service are considered an offer, acceptance is expressly limited to these Terms of Service.

Any new features or tools which are added to the current store shall also be subject to the Terms of Service. You can review the most current version of the Terms of Service at any time on this page. We reserve the right to update, change or replace any part of these Terms of Service by posting updates and/or changes to our website. It is your responsibility to check this page periodically for changes. Your continued use of or access to the website following the posting of any changes constitutes acceptance of those changes.

Our store is hosted on Shopify Inc. They provide us with the online e-commerce platform that allows us to sell our products and Services to you.

1. ONLINE STORE TERMS
By agreeing to these Terms of Service, you represent that you are at least the age of majority in your state or province of residence, or that you are the age of majority in your state or province of residence and you have given us your consent to allow any of your minor dependents to use this site.
You may not use our products for any illegal or unauthorized purpose nor may you, in the use of the Service, violate any laws in your jurisdiction (including but not limited to copyright laws).
You must not transmit any worms or viruses or any code of a destructive nature.
A breach or violation of any of the Terms will result in an immediate termination of your Services.

2. GENERAL CONDITIONS
We reserve the right to refuse Service to anyone for any reason at any time.
You understand that your content (not including credit card information), may be transferred unencrypted and involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices. Credit card information is always encrypted during transfer over networks.
You agree not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Service, use of the Service, or access to the Service or any contact on the website through which the Service is provided, without express written permission by us.
The headings used in this agreement are included for convenience only and will not limit or otherwise affect these Terms.

3. ACCURACY, COMPLETENESS AND TIMELINESS OF INFORMATION
We are not responsible if information made available on this site is not accurate, complete or current. The material on this site is provided for general information only and should not be relied upon or used as the sole basis for making decisions without consulting primary, more accurate, more complete or more timely sources of information. Any reliance on the material on this site is at your own risk.
This site may contain certain historical information. Historical information, necessarily, is not current and is provided for your reference only. We reserve the right to modify the contents of this site at any time, but we have no obligation to update any information on our site. You agree that it is your responsibility to monitor changes to our site.

4. MODIFICATIONS TO THE SERVICE AND PRICES
Prices for our products are subject to change without notice.
We reserve the right at any time to modify or discontinue the Service (or any part or content thereof) without notice at any time.
We shall not be liable to you or to any third-party for any modification, price change, suspension or discontinuance of the Service.

5. PRODUCTS OR SERVICES 
Certain products or Services may be available exclusively online through the website. These products or Services may have limited quantities and are subject to return or exchange only according to our Refund Policy.
We have made every effort to display as accurately as possible the colors and images of our products that appear at the store. We cannot guarantee that your computer monitor's display of any color will be accurate.
We reserve the right, but are not obligated, to limit the sales of our products or Services to any person, geographic region or jurisdiction. We may exercise this right on a case-by-case basis. We reserve the right to limit the quantities of any products or Services that we offer. All descriptions of products or product pricing are subject to change at anytime without notice, at the sole discretion of us. We reserve the right to discontinue any product at any time. Any offer for any product or Service made on this site is void where prohibited.
We do not warrant that the quality of any products, Services, information, or other material purchased or obtained by you will meet your expectations, or that any errors in the Service will be corrected.

6. ACCURACY OF BILLING AND ACCOUNT INFORMATION
We reserve the right to refuse any order you place with us. We may, in our sole discretion, limit or cancel quantities purchased per person, per household or per order. These restrictions may include orders placed by or under the same customer account, the same credit card, and/or orders that use the same billing and/or shipping address. In the event that we make a change to or cancel an order, we may attempt to notify you by contacting the e‑mail and/or billing address/phone number provided at the time the order was made. We reserve the right to limit or prohibit orders that, in our sole judgment, appear to be placed by dealers, resellers or distributors.

You agree to provide current, complete and accurate purchase and account information for all purchases made at our store. You agree to promptly update your account and other information, including your email address and credit card numbers and expiration dates, so that we can complete your transactions and contact you as needed.

For more details, please review our Refund Policy.

7. OPTIONAL TOOLS
We may provide you with access to third-party tools over which we neither monitor nor have any control nor input.
You acknowledge and agree that we provide access to such tools ”as is” and “as available” without any warranties, representations or conditions of any kind and without any endorsement. We shall have no liability whatsoever arising from or relating to your use of optional third-party tools.
Any use by you of the optional tools offered through the site is entirely at your own risk and discretion and you should ensure that you are familiar with and approve of the terms on which tools are provided by the relevant third-party provider(s).
We may also, in the future, offer new Services and/or features through the website (including the release of new tools and resources). Such new features and/or Services shall also be subject to these Terms of Service.

8. THIRD-PARTY LINKS
Certain content, products and Services available via our Service may include materials from third-parties.
Third-party links on this site may direct you to third-party websites that are not affiliated with us. We are not responsible for examining or evaluating the content or accuracy and we do not warrant and will not have any liability or responsibility for any third-party materials or websites, or for any other materials, products, or Services of third-parties.
We are not liable for any harm or damages related to the purchase or use of goods, Services, resources, content, or any other transactions made in connection with any third-party websites. Please review carefully the third-party's policies and practices and make sure you understand them before you engage in any transaction. Complaints, claims, concerns, or questions regarding third-party products should be directed to the third-party.

9. USER COMMENTS, FEEDBACK AND OTHER SUBMISSIONS
If, at our request, you send certain specific submissions (for example contest entries) or without a request from us, you send creative ideas, suggestions, proposals, plans, or other materials, whether online, by email, by postal mail, or otherwise (collectively, 'comments'), you agree that we may, at any time, without restriction, edit, copy, publish, distribute, translate and otherwise use in any medium any comments that you forward to us. We are and shall be under no obligation (1) to maintain any comments in confidence; (2) to pay compensation for any comments; or (3) to respond to any comments.
We may, but have no obligation to, monitor, edit or remove content that we determine in our sole discretion to be unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or otherwise objectionable or violates any party’s intellectual property or these Terms of Service.
You agree that your comments will not violate any right of any third-party, including copyright, trademark, privacy, personality or other personal or proprietary right. You further agree that your comments will not contain libelous or otherwise unlawful, abusive or obscene material, or contain any computer virus or other malware that could in any way affect the operation of the Service or any related website. You may not use a false e‑mail address, pretend to be someone other than yourself, or otherwise mislead us or third-parties as to the origin of any comments. You are solely responsible for any comments you make and their accuracy. We take no responsibility and assume no liability for any comments posted by you or any third-party.

10. PERSONAL INFORMATION
Your submission of personal information through the store is governed by our Privacy Policy.

11. ERRORS, INACCURACIES AND OMISSIONS
Occasionally there may be information on our site or in the Service that contains typographical errors, inaccuracies or omissions that may relate to product descriptions, pricing, promotions, offers, product shipping charges, transit times and availability. We reserve the right to correct any errors, inaccuracies or omissions, and to change or update information or cancel orders if any information in the Service or on any related website is inaccurate at any time without prior notice (including after you have submitted your order).
We undertake no obligation to update, amend or clarify information in the Service or on any related website, including without limitation, pricing information, except as required by law. No specified update or refresh date applied in the Service or on any related website, should be taken to indicate that all information in the Service or on any related website has been modified or updated.

12. PROHIBITED USES
In addition to other prohibitions as set forth in the Terms of Service, you are prohibited from using the site or its content: (a) for any unlawful purpose; (b) to solicit others to perform or participate in any unlawful acts; (c) to violate any international, federal, provincial or state regulations, rules, laws, or local ordinances; (d) to infringe upon or violate our intellectual property rights or the intellectual property rights of others; (e) to harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate based on gender, sexual orientation, religion, ethnicity, race, age, national origin, or disability; (f) to submit false or misleading information; (g) to upload or transmit viruses or any other type of malicious code that will or may be used in any way that will affect the functionality or operation of the Service or of any related website, other websites, or the Internet; (h) to collect or track the personal information of others; (i) to spam, phish, pharm, pretext, spider, crawl, or scrape; (j) for any obscene or immoral purpose; or (k) to interfere with or circumvent the security features of the Service or any related website, other websites, or the Internet. We reserve the right to terminate your use of the Service or any related website for violating any of the prohibited uses.

13. DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY
We do not guarantee, represent or warrant that your use of our Service will be uninterrupted, timely, secure or error-free.
We do not warrant that the results that may be obtained from the use of the Service will be accurate or reliable.
You agree that from time to time we may remove the Service for indefinite periods of time or cancel the Service at any time, without notice to you.
You expressly agree that your use of, or inability to use, the Service is at your sole risk. The Service and all products and Services delivered to you through the Service are (except as expressly stated by us) provided 'as is' and 'as available' for your use, without any representation, warranties or conditions of any kind, either express or implied, including all implied warranties or conditions of merchantability, merchantable quality, fitness for a particular purpose, durability, title, and non-infringement.
In no case shall DWELLNESS, our directors, officers, employees, affiliates, agents, contractors, interns, suppliers, Service providers or licensors be liable for any injury, loss, claim, or any direct, indirect, incidental, punitive, special, or consequential damages of any kind, including, without limitation lost profits, lost revenue, lost savings, loss of data, replacement costs, or any similar damages, whether based in contract, tort (including negligence), strict liability or otherwise, arising from your use of any of the Service or any products procured using the Service, or for any other claim related in any way to your use of the Service or any product, including, but not limited to, any errors or omissions in any content, or any loss or damage of any kind incurred as a result of the use of the Service or any content (or product) posted, transmitted, or otherwise made available via the Service, even if advised of their possibility. Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, our liability shall be limited to the maximum extent permitted by law.

14. INDEMNIFICATION
You agree to indemnify, defend and hold harmless DWELLNESS and our parent, subsidiaries, affiliates, partners, officers, directors, agents, contractors, licensors, Service providers, subcontractors, suppliers, interns and employees, harmless from any claim or demand, including reasonable attorneys’ fees, made by any third-party due to or arising out of your breach of these Terms of Service or the documents they incorporate by reference, or your violation of any law or the rights of a third-party.

15. SEVERABILITY
In the event that any provision of these Terms of Service is determined to be unlawful, void or unenforceable, such provision shall nonetheless be enforceable to the fullest extent permitted by applicable law, and the unenforceable portion shall be deemed to be severed from these Terms of Service, such determination shall not affect the validity and enforceability of any other remaining provisions.

16. TERMINATION
The obligations and liabilities of the parties incurred prior to the termination date shall survive the termination of this agreement for all purposes.
These Terms of Service are effective unless and until terminated by either you or us. You may terminate these Terms of Service at any time by notifying us that you no longer wish to use our Services, or when you cease using our site.
If in our sole judgment you fail, or we suspect that you have failed, to comply with any term or provision of these Terms of Service, we also may terminate this agreement at any time without notice and you will remain liable for all amounts due up to and including the date of termination; and/or accordingly may deny you access to our Services (or any part thereof).

17. ENTIRE AGREEMENT
The failure of us to exercise or enforce any right or provision of these Terms of Service shall not constitute a waiver of such right or provision.
These Terms of Service and any policies or operating rules posted by us on this site or in respect to the Service constitutes the entire agreement and understanding between you and us and governs your use of the Service, superseding any prior or contemporaneous agreements, communications and proposals, whether oral or written, between you and us (including, but not limited to, any prior versions of the Terms of Service).
Any ambiguities in the interpretation of these Terms of Service shall not be construed against the drafting party.

18. GOVERNING LAW
These Terms of Service and any separate agreements whereby we provide you Services shall be governed by and construed in accordance with the laws of Australia.

19. CHANGES TO TERMS OF SERVICE
You can review the most current version of the Terms of Service at any time at this page.
We reserve the right, at our sole discretion, to update, change or replace any part of these Terms of Service by posting updates and changes to our website. It is your responsibility to check our website periodically for changes. Your continued use of or access to our website or the Service following the posting of any changes to these Terms of Service constitutes acceptance of those changes.

20. CONTACT INFORMATION
Questions about the Terms of Service should be sent to us at info@dwellness.com.au.
Our contact information is posted below:
DWELLNESS
info@dwellness.com.au
ABN: 96814679491

DWELLNESS PRIVACY POLICY

Effective Date: 1 January 2024

1. INTRODUCTION

This Privacy Policy is designed to inform you about DWELLNESS collects, uses, discloses, and protects any personal information you provide to us through our website.

2. INFORMATION WE COLLECT

We may collect the following types of personal information:

• Contact Information: Name, email address, phone number, postal address.
• Account Information: Username, password.
• Transaction Information: Details about transactions conducted through our website.
• Other Information: Any other information you choose to provide voluntarily.

3. HOW WE COLLECT INFORMATION

We collect information through:

• Direct interactions: When you provide information through forms on our website.
• Automated technologies: Through the use of cookies and similar technologies when you visit our website.

4. USE OF INFORMATION

We may use your information for the following purposes:

• To provide and maintain our services.
• To process transactions and send transaction-related communications.
• To respond to inquiries and provide customer support.
• To send promotional emails or newsletters (if you've opted in).

5. DISCLOSURE OF INFORMATION

We may share your information with:

• Service providers: Third-party vendors who assist in the operation of our website.
• Legal purposes: In response to legal requests or as necessary to protect our rights.

6. YOUR CHOICES

You can choose not to provide certain information, but this may limit your ability to use certain features of our website. You can also manage your communication preferences.

7. SECURITY

We implement reasonable security measures to protect your personal information from unauthorized access.

8. THIRD-PARTY LINKS

Our website may contain links to third-party websites. We are not responsible for the privacy practices of these websites.

9. UPDATES TO POLICY

We may update this Privacy Policy periodically. Please review it regularly for any changes.

10. CONTACT US

If you have any questions or concerns about this Privacy Policy, please contact us at info@dwellness.com.au

 

DWELLNESS HOME ASSESSMENT SERVICES AGREEMENT

Effective Date: 1 January 2024

CLIENT FORM
Client	[if applicable] Business Name: [insert] ABN: [ABN] Name: [insert] Address: [optional] Email: [insert]
Consultant	Geeta Cheema DWELLNESS ABN: 96814679491 0407 652 320 info@dwellness.com.au
Start Date	[The date this Client Form is signed by the Client.]
Premises	[insert address of premises that is to be tested]
Project Period	[e.g. 4 weeks]
Services	[amend as applicable] Mould Assessment [N/A] or [insert description of the services, including any deliverables and due dates]  Healthy Home Assessment [N/A] or [insert description of the services, including any deliverables and due dates] Other [N/A] or [insert description of the services, including any deliverables and due dates]
Products	[insert]
Insurance Claim Report	[Yes/No]
Fees	Total Fee: $[insert] AUD [amend as applicable] The Total Fee is to be paid according to the following payment structure: ·       Deposit: [insert %] of the Total Fee is payable once you have accepted & signed this Client Form. ·       Remaining Balance: [insert %] of the Total Fee is payable upon the completion of the Services.
Cancellation Fee	[N/A] or [10% of the Services] if the Client cancels the Services in [insert number] or less prior to the date the parties agree the Services are to be provided.
Fee Payment Method	[insert preferred method of payment here]
Special Conditions	[N/A] or [insert any additional terms that have been agreed for this specific job]

 

The term of this Client Form and the Client Terms will commence on the Start Date and continue for the Project Period plus any additional period agreed by the Client and the Consultant in writing. By signing below, the Client agrees to the terms and conditions of this Client Form and the Client Terms attached.

Executed as an agreement on _________________ (date)

 

Signed by the Client:
Full name		Signature
Company (if applicable)		Date

 

CLIENT TERMS

These Client Terms, together with any Client Form (defined in clause 1), set out the agreement (this ‘Agreement’) under the terms of which DWELLNESS ABN 96814679491 (the Consultant) provides Services (defined in clause 3) to you or the company which you represent (the Client).

1. HOW TO READ THIS AGREEMENT

1.1 MEANING OF CAPITALISED WORDS AND PHRASES

Capitalised words and phrases used in these terms and conditions have the meaning given:
(a) to that word or phrase in the Client Form;
(b) by the words immediately preceding any bolded and bracketed word(s) or phrase(s); or
(c) in the definitions in clause 21 of this agreement.

2. CLIENT FORM, THIS AGREEMENT
(a) These Client Terms will apply to all the Client’s dealings with the Consultant including being incorporated in all agreements, quotations or orders under which the Consultant is to provide services to the Client (each a Client Form) together with any additional terms included in such Client Form (provided such additional terms are recorded in writing).
(b) The Client will be taken to have accepted this Agreement if the Client accepts a Client Form, or if the Client orders, accepts or pays for any services provided by the Consultant after receiving or becoming aware of this Agreement or these Client Terms.
(c) In the event of any inconsistency between these Client Terms and any Client Form, the clauses of these Client Terms will prevail to the extent of such inconsistency, except that any “Special Conditions” (being terms described as such in a Client Form) will prevail over these Client Terms to the extent of any inconsistency.

3. SERVICES

3.1 Services
(a) In consideration for the payment of the fees set out in the Client Form (Fees), the Consultant will provide the Client with services set out in a Client Form (Services).
(b) Unless otherwise agreed, the Consultant may, in its discretion:
     (i) not commence work on any Services until the Client has paid any Fees or deposit payable in respect of such Services; and
     (ii) withhold delivery of Services until the Client has paid an invoice in respect of such Services.

3.2 Changes to Scope
(a) Where it is agreed between the parties, the Client may be required to pay a ‘change in scope fee’, in an amount reasonably determined by the Consultant (Change Fee), for changes to Services requested by the Client which alter the scope set out in the relevant Client Form and require the Consultant to perform additional work or incur additional costs (Changes).Unless otherwise agreed in writing, the Consultant may at its discretion extend or modify any delivery schedule or deadlines for the Services as may be reasonably required by such Changes.
(b) The Consultant will only be required to perform Changes, if:
     (i) the Consultant agrees to perform the Changes;
     (ii) the Client confirms that they wish for the Consultant to proceed with the Changes and the relevant Change Fee; and
     (iii) the Client pays the Change Fee, in accordance with clause 3.2(a) as if it was a Fee.

3.3 Cancellation policy
If the Client cancels or reschedules the requested Services within the time period specified in the Cancellation Fee row of the Client Form of the scheduled commencement of the Services, the Client may be required to pay a Cancellation Fee to the Consultant at the rate set out in the Client Form.

3.4 Destructive sampling
(a) In relation to mould affected areas within the Client’s Premises, the Client agrees that the Consultant may, upon prior written consent from the Client:
     (i) inspect or sample building cavities (such as wall, ceiling and subfloor cavities) by removing plaster, timber or other materials to access the cavity; and
     (ii) for the purposes of clause 3.4(a)(i), use a drill to place a hole in the plaster lining to inspect or sample for mould.
(b) Where the Client withholds consent, the Client acknowledges and agrees that the Services and any recommendations and solutions provided by the Consultant may not be an accurate reflection of the health hazards in the Premises.

3.5 Insurance claim report
(a) Unless the Client has selected an Insurance Claim Report and provided the necessary access and sampling as set out in clauses 3.4 and 4.2, the Client acknowledges and agrees that they must not use the Services (including any deliverables, reports, samples, tests or questionnaires) as evidence in an insurance claim or in a court or tribunal.
(b) The Client acknowledges and agrees that an insurance claim is dependent on many factors, including the individual policy of the specific insurer, which are beyond the control of the Consultant. The Client acknowledges and agrees that even where they have selected an Insurance Claim Report, the Consultant does not guarantee that the report will be sufficient for an insurance claim the Client wishes to bring forth.

4. CLIENT OBLIGATIONS

4.1 PROVIDE INFORMATION AND LIAISON
(a) The Client must provide the Consultant with all documentation, information and assistance reasonably required for the Consultant to perform the Services.
(b) The Client agrees to liaise with the Consultant as it reasonably requests for the purpose of enabling the Consultant to provide the Services.

4.2 Provide ACCESS and authority
(a) The Client must be present at the Premises to grant the Consultant access and where requested by the Consultant remain present for the duration of the Services.
(b) The Client must allow the Consultant safe, unrestricted and reasonable access to the Premises (including the removal of any pets on the Premises), or required areas of the Premises, during the provision of the Services or as otherwise agreed with the Client, to allow the Consultant to provide the Services.
(c) Where the Premises is a commercial premises, the Client must conduct or facilitate any inductions, training or supervision or other requirements of the Premises including anything referred to in the Special Conditions of the Client Form, so that the Consultant has safe and reasonable access to carry out the Services.
(d) Where it is required by the Consultant, the Client agrees to provide a supply of electricity (at no cost) to enable the Consultant to carry out the Services.
(e) Where the Consultant is unable to gain safe, unrestricted and reasonable access to the Premises due to the Client’s non-compliance with this clause, omission, fault or otherwise, the Consultant reserves the right to deny the provision of the Services until the relevant issue has been resolved to its satisfaction. The Client acknowledges that they may be liable for additional expenses including travel and lost income.

4.3 Safety and compliance with workplace laws
(a) The Client warrants that the Premises is safe for the Consultant to enter and perform the Services including, where applicable, informing the Consultant about all known materials that contain broken, deteriorated or disturbed asbestos.
(b) The Client acknowledges and agrees that it is their responsibility to ensure they have adequately assessed any risk before the Consultant has commenced the Services.
(c) Where the Premises is a commercial premises, the Client must:
     (i) comply with any relevant occupational health and safety legislation and requirements; and
     (ii) provide sign off that they have conducted a risk assessment and provided a safe work method or have signed off on the Consultant safe work method if applicable.

5. PAYMENT

5.1 FEES
The Client must pay to the Consultant fees in the amounts and at the times set out in the Client Form or as otherwise agreed in writing.

5.2 INVOICES
Unless otherwise agreed in the Client Form:
(a) if the Consultant 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.

5.3 PAYMENT METHOD
The Client must pay Fees using the fee payment method specified in the Client Form.

5.4 GST
Unless otherwise indicated, amounts stated in a Client Form do not include GST. In relation to any GST payable for a taxable supply by the Consultant, the Client must pay the GST subject to the Consultant providing a tax invoice.

5.5 CARD SURCHARGES
The Consultant 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. DISCLAIMER
(a) Using best practices and the Consultants own experience, the Consultant will endeavour to identify and investigate any health hazards in the Client’s Premises including, but not limited to assessing the Premises for allergens, toxicants, electromagnetic fields and biotoxins, mobile phone towers, moulds and bacteria, impurities in the water supply or other similar chemicals and toxins which may affect the Client, the inhabitants of the Premises or visitors to the Premises. However, the Consultant does not guarantee that they will identify every health hazard, and that every health hazard identified will be the source of the Client’s symptoms. The Consultant will recommend solutions to the Client; however, the Consultant does not guarantee that these solutions will solve or fix the Client’s symptoms. The Client acknowledges and agrees that they rely on the Consultant’s solutions and recommendations at their own risk.
(b) The Consultant may recommend products from third party suppliers. The Client acknowledges and agrees that the Consultant is not responsible for these products and has no control over or rights in them. The Consultant does not guarantee that these products will solve or fix any identified health hazards or the Client’s symptoms.
(c) As part of the Consultant’s Services, the Consultant may conduct sampling or testing of the Premises (Tests). The Client acknowledges that the results of these Tests represent the conditions and health hazards of the Premises at the time the Tests are conducted. The Client acknowledges and agrees that the Tests may not diagnose and reflect the health hazards of the Premises that arise in the future or health hazards which were not present on the day the Tests were conducted.
(d) The Consultant may require the consent of the Client to inspect or sample building cavities by removing plaster, timber or other materials to access the cavity. Where the Client withholds consent, the Client acknowledges and agrees that the Services and any recommendations and solutions provided by the Consultant may not be an accurate reflection of the health hazards in the Premises. While the Consultant will endeavour to not damage the Premises, the Consultant makes no promise or guarantee and is not responsible for loss or damage to the Premises arising out of or relating to the Consultant’s access to the site and/or performance of the Services.
(e) The Client acknowledges and agrees that any recommendations or solutions provided by the Consultant in relation to the Premises’ built environment must be approved by a licensed builder, designer, architect or other licensed or registered professional. The Consultant in no way warrants that its recommendations comply with the standards under the National Construction Code, the Building Code of Australia or any other relevant building or construction code or regulation.
(f) The Client acknowledges and agrees that the Consultant’s role is not to provide health care or health or medical services; or to diagnose, treat or cure any disease, condition or other physical or mental ailment of the human body. The Client acknowledges that the Consultant is not acting in the capacity of a doctor, psychologist or other licensed or registered professional, and that any advice that is given by the Consultant is not meant to take the place of advice by these professionals. Before relying on the Consultants recommendations, you should seek medical advice to evaluate any risks associated with their recommendations. By not seeking such advice, you accept the risk that the Consultant’s recommendations may not be right for you.

7. DEFECTIVE PRODUCTS AND ACCEPTANCE
This clause 7 will apply where the Consultant sells and provides Products in addition to the Services.

7.1 DEFECTIVE PRODUCTS
Where the Client considers that any Products provided by the Consultant are defective, the Client must, within a reasonable time of receiving the Products, inform the Consultant of that fact in writing.

7.2 CLIENT’S OBLIGATIONS
Where Products are the subject of a notice under clause 7.1: 
(a) the Client must, at the Consultant’s option:
     (i) leave the Products in the state and condition in which they were delivered until such time as the Consultant or its duly authorised agent has inspected the Products; or
     (ii) send the Consultant photographs, descriptions or other material evidencing the defects in the Products at the contact email address set out in the Client Form;
(b) the Consultant will inspect the Products and/or evidence of defects in the Products within a reasonable time after notification by the Client; and
(c) if paragraph 7.2(a) is not complied with, the Client will be taken to have accepted the Products and the Consultant will be entitled to the price for the Products set out in any Client Form.

7.3 CALL-OUT FEE
The Consultant reserves the right to charge the Client a call out fee, if upon inspection of the Products in accordance with clause 7.2(a)(i), the Consultant determines that the Products are not defective in accordance with clause 7.5.

7.4 REPAIRS OR REPLACEMENTS OF DEFECTIVE GOODS
Subject to clause 11, if, upon inspection, in the reasonable opinion of the Consultant:
(a) the Products are defective; and
(b) the Products were not damaged by the Client and/or the Client did not fail to take reasonable steps to prevent the Products from becoming damaged; or
(c) the Products are otherwise not in conformity with the Client Form, then at the discretion of the Client, the Consultant will:
     (i) replace the Products or supply the equivalent of the Products;
     (ii) repair the Products;
     (iii) pay the Client the cost of replacing the Products or acquiring equivalent Products; or
     (iv) pay the Client the cost of having the Products repaired.

7.5 GOODS CONSIDERED NOT TO BE DEFECTIVE
If, upon inspection, in the reasonable opinion of the Consultant:
(a) the Products are not defective; or
(b) the Products are defective due to an act or omission of the Client, misuse, failure to use in accordance with the manufacturer’s instructions, or failure to take reasonable care by the Client; and
(c) the Products are otherwise in conformity with the Client Form, the Consultant will refuse the Client’s return, the Client will be taken to have accepted the Products and the Consultant will be entitled to the price for the Products set out in any Client Form, as well as the reasonable costs that the Consultant have incurred in carrying out any inspection.

7.6 ACCEPTANCE
Except where notice has been given in accordance with clause 7.1, acceptance of the Products is deemed for all purposes to have taken place:
(a) when the Client makes known to the Consultant that it has accepted the Products;
(b) when the Client, after delivery of the Products, does any act in relation to them which is inconsistent with the Consultant’s ownership of the Products; or
(c) upon the expiry of 7 days from the date of delivery, whichever first occurs.

7.7 WEAR AND TEAR
Products that have been subject to regular wear and tear will not be considered to be defective.

8. THIRD PARTY GOODS AND SERVICES
(a) Any Service that requires the Consultant to acquire goods and services supplied by a third party on behalf of the Client may be subject to the terms & conditions of that third party (Third Party Terms), including ‘no refund’ policies.
(b) The Client agrees to any Third Party Terms applicable to any goods and services supplied by a third party that the Client or Consultant acquires as part of the Services and the Consultant will not be liable for any loss or damage suffered by the Client in connection with such Third Party Terms.

9. CONFIDENTIALITY
(a) Except as contemplated by this Agreement, each party must not, and must not permit any of its officers, employees, agents, contractors or related companies to, use or disclose to any person any Confidential Information disclosed to it by the other party without its prior written consent.
(b) This clause 9 does not apply to:
     (i) information which is generally available to the public (other than as a result of a breach of this Agreement or another obligation of confidence);
     (ii) information required to be disclosed by any law; or
     (iii) information disclosed by the Consultant to its subcontractors, employees or agents for the purposes of performing the Services or its obligations under this Agreement.
(c) For the purposes of this Agreement, “Confidential Information” means information of or provided by a party to the other party under or in connection with this Agreement that is by its nature confidential information, is designated by the party as confidential, or the other party knows or ought to know is confidential, but does not include information which is or becomes, without a breach of confidentiality, public knowledge.

10. INTELLECTUAL PROPERTY
(a) All Developed IP will be solely and exclusively owned by the Consultant.
(b) The Consultant grants to the Client a non-exclusive, royalty free, non-transferable and revocable licence to use Consultant IP and any Developed IP to the extent required for the Client to use, enjoy the benefit of or exploit the Services and/or the Deliverables.
(c) Unless otherwise agreed in writing by the Consultant or in this clause 10, the Client will not acquire Intellectual Property Rights in any Consultant IP under this Agreement or as part of receiving the Services.
(d) For the purposes of this clause 10:
     (i) “Developed IP” means the Deliverables and any other Material produced by the Consultant in the course of providing the Services, either alone or in conjunction with the Client or others, and any Intellectual Property Rights attaching to that Material or the Deliverables.
     (ii) “Intellectual Property Rights” means any and all present and future intellectual and industrial property rights throughout the world, including copyright, trade marks, designs, patents, or other proprietary rights, Confidential Information and the right to have information kept confidential, or any rights to registration of such rights, whether created before or after the date of this Agreement.
     (iii) “Consultant IP” means all Material owned or licensed by the Consultant that is not Developed IP and any Intellectual Property Rights attaching to that Material.
     (iv) “Material” means tangible and intangible information, documents, reports, drawings, designs, software (including source and object code), inventions, concepts, data and other materials in any media whatsoever.

11. WARRANTIES
(a) To the maximum extent permitted by applicable law, all express or implied representations and warranties (whether relating to fitness for purpose or performance, or otherwise) not expressly stated in this Agreement or a Client Form 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.

12. LIABILITY
(a) (Liability) To the maximum extent permitted by applicable law, the Consultant limits all liability in aggregate of all claims to the Client (and any third parties who encounter the services or goods through the Client’s business) for loss or damage of any kind, however arising whether in contract, tort (including negligence), statute, equity, indemnity or otherwise, arising from or relating in any way to this agreement or any goods or services provided by the Consultant to the amount paid by the Client to the Consultant under the most recent Client Form.
(b) (Indemnity) The Client indemnifies the Consultant and its employees, contractors and agents in respect of all liability for any claim(s) by any person (including any third party who encounter the services or goods through the Client’s business) arising from the Client’s or the Client’s employee’s, client’s, contractor’s or agent’s:
     (i) breach of any third party intellectual property rights;
     (ii) breach of any term of this agreement;
     (iii) negligent, wilful, fraudulent or criminal act or omission; or
     (iv) use of any goods or Services provided by the Consultant.
(c) (Consequential loss) To the maximum extent permitted by law, under no circumstances will the Consultant 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 arising under or in connection with this agreement or any goods or services provided by the Consultant (except to the extent this liability cannot be excluded under the Competition and Consumer Act 2010 (Cth)).

13. SUBCONTRACTING
The Consultant may subcontract any aspect of providing the Services and the Client hereby consents to such subcontracting.

14. TERMINATION
14.1 TERMINATION FOR CAUSE
Either party (Non-Defaulting Party) may terminate this Agreement immediately by written notice to the other party (Defaulting Party) if the Defaulting Party:
(a) is in breach of this Agreement; or
(b) becomes subject to any form of insolvency or bankruptcy administration.

14.2 OTHER CONSEQUENCES FOR TERMINATION
Unless otherwise agreed between the parties, the Client acknowledges and agrees that upon termination of this agreement:
(a) any Cancellation Fee set out in the Client Form will be payable;
(b) any Deposit(s) paid will not be refunded to the Client; and
(c) all Fees payable as at the date of termination will be immediately due for payment by the Client.

14.3 SURVIVAL
Any clause that by its nature would reasonably be expected to be performed after the termination or expiry of this agreement will survive and be enforceable after such termination or expiry.

15. IF THE PARTIES HAVE A DISPUTE
(a) If an issue between the parties arises under this agreement that cannot be resolved day-to-day, the parties will make genuine efforts in good faith to participate cooperatively in mediation, at equal shared expense of the parties.
(b) The parties will conduct mediation through the Australian Disputes Centre (ADC) and in accordance with the ADC’s Guidelines for Commercial Mediation (as current at the time of the dispute).
(c) The parties will follow the mediator’s recommendations on the extent of mediation required, and when to stop mediation if the issue cannot be resolved.
(d) If mediation does not resolve the issue, the parties must:
     (i) if they haven’t already done so, engage independent legal representation at their own expense to understand the strength of their arguments; and
     (ii) based on that advice, if settlement is not achieved, participate in arbitration (or other dispute resolution mechanism agreed in mediation) through the ADC at equal shared expense.
(e) The parties will follow the binding outcome of arbitration (or other agreed mechanism).
(f) Either party may at any time during this process make an offer for settlement. The parties acknowledge and agree it is in their best interests to properly consider all genuine settlement offers. The parties will use best endeavours to avoid litigation and reach a prompt settlement.
(g) The process in this clause does not apply where a party requires an urgent injunction.

16. NOTICES
(a) Any notices required to be sent under this agreement must be sent via email using the party’s email addresses set out in the Client Form and the email’s subject heading must refer to the name and date of this agreement.
(b) If no email address is stated in this agreement, the notice may be sent to the email address most commonly used by the parties to correspond in relation to this agreement at the time the notice is sent.
(c) The notice will be considered to be delivered 24 hours after it was sent, unless the sender has reason to believe the email failed to send or was otherwise not delivered or received.

17. GENERAL
(a) (Governing Law) This Agreement is governed by the law applying in New South Wales, Australia. Each party irrevocably submits to the exclusive jurisdiction of the courts of New South Wales, Australia 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.
(b) (Amendments) This Agreement may only be amended in accordance with a written agreement between the parties.
(c) (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.
(d) (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.
(e) (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.
(f) (Counterparts This Agreement may be executed in any number of counterparts. Each counterpart constitutes an original of this Agreement and all together constitute one Agreement.
(g) (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.
(h) (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.

 

DWELLNESS HOME ASSESSMENT SERVICES DISCLAIMER AND LIMITATIONS

Effective Date: 1 January 2024

This disclaimer sets out the scope of the Services and the liability of Geeta Cheema trading as Dwellness ABN 96 814 679 491 (the Consultant) including its directors, employees, agents and contractors when performing Home Assessment Services (the Services). By undertaking the Services, the Client agrees to this disclaimer:

1. The scope of the Services are those areas of the property and those tests and sampling specifically sought or agreed by the Consultant and the Client to be carried out.
2. The Services do not include matters that do not fall within the Consultant’s direct expertise and is not a warranty or an insurance policy against problems developing with the building in the future.
3. The Client acknowledges and agrees that the Consultant’s role is not to provide health care or health or medical advice, or to diagnose, treat or cure any disease, condition or other physical or mental ailment of the human body. The Client acknowledges that the Consultant is not acting in the capacity of a doctor, psychologist or other licensed or registered medical or healthcare professional, and that any advice that is given by the Consultant is not meant to take the place of advice by these professionals. Before relying on the Consultant’s recommendations, the Client should seek medical advice to evaluate any risks associated with their recommendations. By not seeking such advice, the Client accepts the risk that the Consultant’s recommendations may not be right for their particular health needs.
4. The Consultant does not guarantee that they will identify every potential environmental health hazard, and that any environmental health hazard identified in the course of the Services is source of the Client’s symptoms. The Consultant will recommend solutions to the Client, however, the Consultant does not guarantee that these solutions will solve or remedy the Client’s symptoms. The Client acknowledges and agrees that they rely on the Consultant’s solutions and recommendations at their own risk.
5. The Consultant may require the consent of the Client to inspect or sample building cavities by removing plaster, timber or other materials to access the cavity (i.e., to undertake destructive testing). Where the Client withholds consent for destructive testing, the client acknowledges and agrees that the Services and any recommendations and solutions provided by the Consultant may not be an accurate reflection of the potential environmental risks in the premises.
6. While the Consultant will make every attempt to avoid damage to the premises, the Consultant makes no promise or guarantee and is not responsible for loss or damage to the premises arising out of or relating to the Consultant’s access to the site and/or performance of the Services.
7. Unless destructive testing is permitted and occurs, the inspection is a visual non-destructive inspection of readily accessible areas* of the property. The inspection does not include areas which were inaccessible, not readily accessible or obstructed** at the time of inspection. No liability shall be accepted on account of the failure of the assessment report to address any issues not sought by the Client or for any area at the subject property to which access for assessment is denied or is unable to be easily accessed, and only records the observations and conclusions the Consultant has made based on the Client’s request. The Consultant does not accept responsibility for any test result relating to an area which the equipment could not access without the removal of any structure, fittings or fixtures.
8. The Consultant is not be liable for any loss, damage, cost or expense, whatsoever, suffered or incurred by any person other than the Client in connection with the use of the assessment report by that person for any purpose or in any way, including the use of this assessment report for any purpose connected with the sale, purchase, or renovation of the subject property, to the extent permissible by law. The only person to whom the Consultant may be liable and to whom losses arising in contract or tort sustained may be payable is the Client. Any third party relying on this assessment report whether in whole or part does so at their own risk.
9. The assessment report is only accurate at the time of the assessment. The results of the tests and sampling undertaken represent the conditions prevailing at the time of sampling and are not necessarily representative of all the conditions to which the property is subjected, and thus, may not accurately reflect the issues that may be applicable on some other day or time. For example, investigations that occur on dry days or on days without wind-driven rain, may fail to identify and locate such leakage. The Client acknowledges and agrees that the Services may not diagnose and reflect the potential environmental risks of the premises that arise in the future or potential environmental risks which were not present on the day the Services were conducted. It is possible that multiple site visits during different weather conditions and different HVAC operational modes may be necessary to reach robust conclusions.
10. The Consultant is not liable for the Client’s failure to follow the Consultant’s instructions regarding the preparation of the home 24 hours prior to the site visit as specified in the Client Agreement, and the resulting impact on the conditions prevailing at the time of sampling.
11. The Client accepts that the assessment report and the recommendations contained within do not constitute a full scope of works specification.
12. Any recommendations in the assessment report are based on the Consultant’s knowledge and experience at the time of preparing the report and are not to be taken as being exhaustive of all possible solutions or recommendations.
13. The Consultant bears no responsibility for errors, omissions or limitations of data collection arising from the use of calibrated measurement tools or the laboratory analysis.
14. The report does not include inspection and assessment of items or matters outside the scope of the requested inspection and report such as:

• Any minor fault or minor defect in the building.
• Solving or providing costs for any rectification or repair work.
• The structural design or adequacy of any element of construction.
• The detection of any wood destroying insects such as termites and wood borers.
• The operation, condition and compliance of any heaters, air conditioners, hot water heaters, fireplaces etc.
• Any services including building electrical wiring, hydraulic (sewer and stormwater), mechanical ventilation, fire and smoke detection.
• Any swimming pools, spas and equipment and the like.
• Review of occupational health or safety issues such as asbestos content, swimming pool safety fences or safety glass.
• Whether the building complies with the provisions of any building act, code, regulation or by-law.
• Whether the land on which the building is built is filled, liable to subside, is subject to landslip, tidal inundation or is flood prone.
  
  15. The Consultant may recommend products from third party suppliers. The Client acknowledges and agrees that the Consultant is not responsible for these products and has no control over them. The Consultant does not guarantee that these products will solve or fix any identified health hazards or the Client’s symptoms.
• 
  16. The Client acknowledges and agrees that any recommendations or solutions provided by the Consultant in relation to the premises must be approved by a licensed builder, designer, architect or other licensed or registered professional. The Consultant in no way warrants that the recommendations in the assessment report comply with the standards under the National Construction Code, the Building Code of Australia or any other relevant building or construction code or regulation.

*A readily accessible area is defined as an area which can be easily and safely inspected without the need for specialist protective clothing and apparatus (other than standard protective overalls and face mask), where there is no the risk of injury to person, where the area is not overly damp or contaminated, where damage to the property is not likely, roofs that accessible off a 3.6m ladder above ground or floor level, roof spaces with not less than 600mm x 600mm of clear space and subfloor spaces with a minimum accessibility of 400mm high and 600mm wide with space to enter and exit.

**Obstructions are defined as any condition or physical limitation that inhibits or prevents inspection and may include but is not limited to – fixed ceilings, wall linings, floor coverings, fixtures, fittings, furniture, clothes, stored goods, thermal insulation, sarking, pipe and ductwork, builders debris, leaves and vegetation, pavements, soil in planter boxes, soil against the building.