Terms

COSTS AGREEMENT

Agreement

Thank you for engaging Elamine Pty Ltd ATF Elamine Trust trading as Elamine Lawyers (“us”, “our”, or “we”) to provide you with legal services. The fee for the Subscription Services, as set out in the Subscription Plan (“Subscription Fee”), will be payable in arrears and direct debited from your nominated account or credit card on a weekly or monthly basis. Individual or entity identified in our Subscription Plan (“you” or “your”), each a “Party” and collectively the “Parties.”

Welcome to SmarterBuilder®, Australia’s first subscription-based legal service for Builders (and Tradies!).

We will provide you with legal services in accordance with the terms of this Costs Agreement, which include the following terms and conditions;

The “Terms” refer to the Subscription Plan (and any linked documents or web pages) that we have provided to you for the applicable legal services (“Subscription Plan”).

Acceptance

You are considered to have accepted these Terms if you:

Make payment of any portion of our fees for the applicable legal services online acceptance of these Terms; and/or
1. directing (or continuing to direct) us to continue providing the pertinent legal services.
Service Subscription – Term and Renewals
1. We agree to provide you with the services outlined in the Subscription Plan (“Subscription Services”). You agree to purchase the Subscription Services beginning on the date you accept these Terms and for the duration of the Subscription term as described in the Subscription Plan (“Subscription Term”).
1. Upon expiration of the Subscription Term, these Terms (and the Subscription Term) will renew for the same period as the initial Subscription Term (Renewal Period), unless terminated earlier in accordance with these Terms.
1. If you do not wish for these Terms to be automatically renewed, you must let us know before the end of the Subscription Term.
Fees for Subscription Services
1. On each anniversary of the date you accepted these Terms, the Subscription Fee will increase by 5% + GST for the duration of the Subscription Term.
1. At the conclusion of the Subscription Term, we may notify you of any Subscription Fee increases that will apply to any Renewal Period or subsequent term.
Scope of Subscription Services
1. Our Subscription Plan details the services included and excluded from the Subscription Services’ coverage depending on the package to that you select. Your access to the Subscription Services is contingent upon your use of the services in a commercially reasonable and ethical manner.
1. We may notify you of modifications to the Subscription Services, including modifications to our fixed-fee and hourly rates and the Subscription Fee (“Changes”). Unless otherwise agreed, the modification will become effective at the start of the following calendar month.
1. Please notify us in writing within 30 days of our notifying you of a Change if you do not agree with it. We will attempt to reach a mutually agreeable resolution to your concerns or provide you with the option to cancel your Subscription Service (with a refund of any unused pre-paid portion of the Subscription Fee, on a pro-rata basis).

Package and inclusions

Builder’s Basic	Brave Builder	Volume Builder	SmarterTradie	Commercial Builder	FitOut Maestro
2 hours ^{/ month} free A/V consultation^	3 hours ^{/ month} free A/V consultation^	5 hours ^{/ month} free A/V consultation^	2 hours ^{/ month} free A/V consultation^	3 hours ^{/ month} free A/V consultation^	2 hours ^{/ month} free A/V consultation^
10% discount on legal fees	15% discount on legal fees	20% discount on legal fees	10% discount on legal fees	15% discount on legal fees	15% discount on legal fees
$ 2000 ASF ^{/annum for ADR^^}	$ 3000 ASF ^{/annum for ADR^^}	$ 5000 ASF ^{/annum for ADR^^}	$ 2000 ASF ^{/annum for ADR^^}	$ 3000 ASF ^{/annum for ADR^^}	$ 2500 ASF ^{/annum for ADR^^}
Up to 10 occupancies per annum	Between 11 to 24 occupancies per annum	Between 24 to 40 occupancies per annum	Up to 20 domestic job sites
$129 /wk ^{incl. GST}	$349 /wk ^{incl. GST}	$849 /wk ^{incl. GST}	$119 /wk ^{incl. GST}	+99.00	$129 /wk ^{incl. GST}

Builder’s Basic:

The Additional Support Fund is limited to $ 200 per month; no rollover to the following month and cappted at $ 2,000 per annum capped at $2,000 per annum exclusive of GST. Disbursements are payable separately by the you the client. Disbursements include any out-of-pocket expenses, mailing, counsel fees, rates, taxes etc attributable to the instructions we receive from you.
You will receive an aggregate ten (10) percent of our legal fees that we typically charge as adjusted from time to time.
You declare that you propose to sign up to build no more than 10 occupancies within twelve months from the time of entering into this agreement. If you sign up to more than 10 occupancies but less than 24 occupancies, you agree to notify us and you automatically agree to have your subscription uplifted to the Brave Builder category.

Brave Builder:

The Additional Support Fund is limited to $ 300 per month; no rollover to the following month and capped at $ 3,000 per annum capped at $3,000 per annum exclusive of GST. Disbursements are payable separately by the you the client. Disbursements include any out-of-pocket expenses, mailing, counsel fees, rates, taxes etc attributable to the instructions we receive from you.
You will receive an aggregate fifteen (15) percent of our legal fees that we typically charge as adjusted from time to time.
You declare that you propose to sign up to build no more than 24 occupancies within twelve months from the time of entering into this agreement. If you sign up to more than 24 occupancies but less than 40 occupancies, you agree to notify us and you automatically agree to have your subscription uplifted to the VolumeBuilder category.

Volume Builder

The Additional Support Fund is limited to $ 500 per month; no rollover to the following month and capped at $ 2,000 per annum capped at $2,000 per annum exclusive of GST. Disbursements are payable separately by the you the client. Disbursements include any out-of-pocket expenses, mailing, counsel fees, rates, taxes etc attributable to the instructions we receive from you.
You will receive an aggregate twenty (20) percent of our legal fees that we typically charge as adjusted from time to time.
You declare that you propose to sign up to build no more than 40 occupancies within twelve months from the time of entering into this agreement. If you sign up to more than 24 occupancies but less than 41 occupancies, you agree to notify us and you automatically agree to pay an additional $10.00 per week per occupancy above 40 occupancies.

SmarterTradie

The Additional Support Fund is limited to $ 200 per month; no rollover to the following month and capped at $ 2,000 per annum capped at $2,000 per annum exclusive of GST. Disbursements are payable separately by the you the client. Disbursements include any out-of-pocket expenses, mailing, counsel fees, rates, taxes etc attributable to the instructions we receive from you.
For licensed domestic trades only (electrical, plumbing, carpentry, waterproofing, gas-fitting, refrigeration, mechanical and air-conditioning, tiling, bricklaying, decorative plastering)

CommercialBuilder

The Additional Support Fund is limited to $ 300 per month; no rollover to the following month and capped at $ 3,000 per annum capped at $3,000 per annum exclusive of GST. Disbursements are payable separately by the you the client. Disbursements include any out-of-pocket expenses, mailing, counsel fees, rates, taxes etc attributable to the instructions we receive from you.
You will receive an aggregate ten (10) percent of our legal fees that we typically charge as adjusted from time to time.
For licensed domestic trades only (electrical, plumbing, carpentry, waterproofing, gas-fitting, refrigeration, mechanical and air-conditioning, tiling, bricklaying, decorative plastering)

^subject to availability of practitioner

^^ADR or Alternative Dispute Resolution means the alternative dispute resolution process available for legal disputes between the two or more parties including, appearing at a mediation (non-court appointed), appearing before Domestic Building Dispute Resolution Victoria and generally attempting to resolve a dispute between the Builder one or more of the following:

An Owner of land or adjacent land relating to a construction that the Builder is directly involved in;
A Relevant Building Surveyor
A property developer for whom the Builder is contracted to; or
A sub-contractor or agent of the Builder
Subscription Services – Fund for Additional Support Services
A “Qualified Subscriber” is a member with a one (1) year contract who is eligible to access our Additional Support Funds. The Subscriber must have a minimum of twelve months paid subscription to be entitled to the Additional Support fund.
The Additional Support Fund provides Qualified Subscripers with a pool of funds that can be used to purchase eligible additional services from SmarterBuilder that are not included in the Subscription.
As an Qualified Subscriber, you have access to the Additional Support Fund up to the amount communicated to you at the time your membership began.
The “Annual Threshold” is to be spent exclusively on Eligible Additional Services from SmarterBuilder® during the Subscription Term.

Your access to Additional Support Fund funds is contingent upon the following terms and conditions:

SmarterBuilder® will only grant you access to Additional Support Fund funds up to the Annual Threshold per year, and only as long as you remain an Qualified Subscriber;

Once you have reached your Annual Threshold, you will be charged for any additional support you require from SmarterBuilder® for your matter that exceeds the Annual Threshold.

We will attempt to notify you monthly when you have reached your Annual Threshold. If you do not agree to proceed with your case after the Annual Threshold has been reached, you acknowledge that we are under no obligation to assist you with your case; The value of the support that SmarterBuilder® will provide under the Additional Support Fund will be determined by our standard hourly rates, which are subject to change;

Additional Support Fund funds may only be used to pay for professional fees payable to SmarterBuilder® for Eligible Additional Services, and cannot be used to pay for third party costs, disbursements, government fees, or other expenses;

Additional Support Fund funds allocated to Qualified Subscribers do not constitute a gift card or voucher, are non-refundable, non-transferable, and are not redeemable for cash in whole or in part;

Your Annual Threshold will be renewed annually on the anniversary of the date you became a Qualified Subscriber, but will not compound annually. If your contract expires, your funds will not replenish/renew automatically, and you will not be able to access funds from the Additional Support Fund unless you sign a new Qualified Subscriber contract; If you have funds remaining under the Additional Support Fund upon the expiry or termination of your Subscription (for whatever reason), your entitlement to use the funds under the Additional Support Fund will be forfeited; and SmarterBuilder® will not provide assistance under the Additional Support Fund if we determine that you have failed to follow SmarterBuilder® advice or guidance in the handling or running of the matter.

Services not included

The SmarterBuilder® service fee does not cover the following:

Legal advice or Legal Work not associated with Building & Construction law matters
Drafting of contractual agreements
Litigation (Tribunals, Commissions, State Courts or Federal Court)
Building Appeals Board matters
Demand Letters outside the scope of Dispute Resolution

Payment Procedures

We may bill you for legal services for:

a Subscription model (weekly, monthly, quarterly, or annually);

a flat-rate basis; or

on an hourly basis,

according to our Subscription Plan. You agree to pay our fees according to our Subscription Plan’s payment schedule and payment method (or as otherwise agreed by us).

We maintain the right to:

Request your credit card number or your nominee
Request your bank account details;
request that you deposit funds into our trust account; or
authorise credit for you.

If you fail to make any agreed-upon payment and the amount remains unpaid for more than 30 days, we may register a default with our credit agency, we may suspend access to our services until payment is received, and/or we may take legal action to recover the amount.

Expenses and Disbursements

You are responsible for expenses and disbursements incurred by our firm in carrying out your instructions or providing legal services. If you request legal services that require disbursements, we will attempt to inform you of the associated fees in advance.

Supplemental Services

If you request legal services that extend beyond the scope of these Terms (including the Subscription Plan), we will either:

Require you to upgrade to a different
Subscription Service or Monthly Payment;
Offer you an additional Subscription Plan for fixed-fee work or an add-on to your Subscription; or
Professional fees on a pro-rata or hourly basis for legal services based on the following indicative hourly rate bands (unless otherwise notified to you in writing):

$ 450 per hour (exclusive of GST) for the Principal;

$ 400 per hour for Senior Associates (exclusive of GST);

$200 per hour (excluding GST) for Junior Lawyers (less than 12 months PQE);

Barrister, Expert, and Mediator fees, etc., are considered disbursements and are charged at their respective rates.

We reserve the right to assign our Solicitors to hourly rate bands at our discretion, based on the nature and complexity of the requested legal services and the Solicitors’ level of expertise. Prior to beginning work on the additional scope of work, we will notify you of the applicable hourly rate band for your Solicitor in the event that none of the above bands apply.

Our rates are reviewed annually around June 30 and are subject to change during the course of a case. We will inform you of any rate adjustments.

Arrangements for Billing and Tax Invoices

For non-Subscription Services, tax invoices are typically issued upon completion of the agreed scope of work relevant to your matter, as outlined in your Subscription Plan (Scope of Work), or at the conclusion of each week, fortnight, or month for ongoing matters. Tax invoices are due and payable according to the terms specified on the tax invoice. By engaging our services, you consent to receiving tax invoices electronically. On any amounts that remain unpaid 30 days after a tax invoice (or itemised invoice, if requested) is issued, we may charge interest and/or seek to recover our costs (including professional fees).

Where you have agreed to pay by direct debit (including for the Subscription Fee), we may directly debit from your nominated account any amounts due and payable under these Terms in accordance with our “Direct Debit Request” form, “Direct Debit Request Services Agreement”, and any other terms or conditions agreed to by you at the time of authorising us to directly debit your nominated account. By authorising us to direct debit, you authorise Stripe Payments Australia Pty Ltd Direct Debit (Stripe) to debit your account via the Bulk Electronic Clearing System (BECS) on our behalf for any amounts communicated to you separately by us. You affirm that you are either the account holder or an authorised signatory for the account specified above.

Trust Funds and Permission to Withdraw Trust Funds

We will issue you a receipt upon receiving your trust payment (Trust Money). You authorise us to withdraw the Trust Money: when the Scope of Work is complete in accordance with these Terms;

in accordance with instructions that have been received by us and that authorise the withdrawal; or

if the Trust Money is owed to us by way of reimbursement of money already paid by us on behalf of you, and

before effecting the withdrawal, we will send you a tax invoice and notice of withdrawal referring to the proposed withdrawal. You authorise us to receive directly into our trust account any judgement or settlement amount, or money received from any source in furtherance of your legal services, and to pay our professional fees, expenses and disbursements in accordance with the Legal Profession Uniform Law 2015 (Vic) (Uniform Law) (Uniform Law).

We may otherwise withdraw the Trust Money if we issue a bill relating to the Trust Money, and you do not object to the withdrawal of the money within 7 business days after being given the bill.

Your Rights

You have the right to:

obtain independent legal advice before agreeing to any proposed costs agreement from us;

negotiate any proposed costs agreement with us (including negotiating the billing method);

receive a lump sum bill for legal services provided;

receive an itemised bill, if you request it within 30 days of receiving the lump sum bill;

request in writing, and be provided with, a written progress report of your matter and the legal costs and professional fees incurred for your matter;

be notified of any substantial change to any matter affecting our legal costs and professional fees; and

accept or reject any offer we make for an interstate costs law to apply to your matter, or notify us that you require an interstate costs law to apply to your matter.

We are entitled to charge you a reasonable amount to provide a progress report on your matter but may not charge to provide a written report on the legal costs and professional fees incurred by you.

Nothing in these Terms affects your rights under the Australian Consumer Law.

Your Rights in Relation to a Dispute Concerning Costs and Professional Fees

Your feedback is important to us. We seek to resolve your concerns quickly and effectively. If you have any feedback or questions about any legal services provided by us, please contact any member of our staff, or contact us via our website at www.SmarterBuilder®.com.au.

If you have a dispute about our legal costs or professional fees, please discuss your concerns with us to give us the opportunity to resolve the issue promptly and without it adversely impacting on our business relationship.

If the issue is not resolved, you have the following avenues of redress:

apply to the Manager, Costs Assessment located at the Supreme Court of Victoria for an assessment of our costs and fees. An application must be made within 12 months after the bill was provided or request for payment made or after the costs or fees were paid;

apply to the Costs Assessor to set aside some or all of these Terms on the grounds they are not fair or reasonable;

ask the President of the Law Society or the Legal Services Commissioner for mediation if the amount in dispute is less than $10,000; or

make a complaint to the Victoria Legal Services Board and Commissioner within 30 days of the costs or fees becoming payable, or if an itemised bill was requested, within 30 days of it being provided to you.

Confidentiality

At all times we will seek to maintain the confidentiality of your confidential information. We may, on a confidential basis, provide your information to third parties where we consider it is appropriate for the proper conduct of your matter, where permitted or required by law to do so, or where such information is no longer confidential. You must keep the terms of our engagement (including these Terms) confidential, including our rates and fees. Copyright, Retention and Copying of Your Documents

You acknowledge and agree that copyright in our legal advices and documents (Documents) belongs to us and that we make Documents available to you under licence from us, as set out in these Terms. You are permitted to use the Documents for your personal or business use. You are not permitted to reuse the Documents for another use, nor to provide the Documents to third parties to reuse or to benefit from (or attempt to benefit from) in a commercial fashion, including that you are not permitted to re-sell, copy reproduce, transmit electronically or otherwise use the Documents in whole or in part, in any manner whether in original form or amended in any way, unless you have requested and received written permission (including by email) to use the Documents in another way.

Despite any provision to the contrary, if you cancel your Subscription prior to your Subscription Term (including during any cooling off or trial period) (including during any cooling off or trial period),

your licence to use the Documents for any reason will be immediately revoked.

Unless otherwise agreed or required by law, on completion of your legal services, we will retain your documents for 7 years.

Responsibility

Unless otherwise stated in these Terms:

if you have engaged us to create legal documents, we are not engaged to and will not provide legal advice, unless you have also engaged us to provide legal advice;

we will not independently verify the accuracy of information and documents you provide to us;

we are not responsible for informing you of changes in the law, regulations or interpretations after we have provided the agreed legal services;

our legal services are only meant for you in the context of your instructions to us. We are not responsible for any other use of our legal services. You must not give our work to anyone else, unless we agree first;

we are lawyers and you should only rely on us for legal advice in the context of our agreed Scope of Work. You should not rely on any non- legal advice provided by us;

we are not responsible for any changes that you make to our advice or documents.

Your Obligations

At all relevant times, you warrant that:

you are properly authorised to engage us and instruct us on behalf of any company, partnership, trust or other entity that you say that you represent;

there are no legal restrictions preventing you from agreeing to these Terms;

the information you provide to us is true, correct and complete;

you will not infringe any third party rights in working with us and receiving the relevant legal services; and

you are responsible for obtaining any consents, licences and permissions from other parties

necessary for the relevant legal services to be provided, at your cost, and for providing us with the necessary consents, licences and permissions.

Exclusions

Nothing in these Terms is intended or operates to limit or exclude your rights and remedies, or our obligations and liabilities, under the Australian Consumer Law.

Our liability is limited by a scheme approved under Professional Standards Legislation.

To the extent permitted by law:

We may refuse to provide legal services to you where we consider we do not have the requisite expertise or jurisdictional qualifications in relation to the matter, where the matter gives rise to a real or potential legal or commercial conflict, or where we consider we are not professionally, ethically or lawfully able to assist you in relation to the matter;

A party’s liability to the other party under or in connection with these Terms will be reduced to the extent the relevant liability was caused or contributed to by: (1) the acts or omissions of the other party or their personnel (including their failure to take reasonable steps to mitigate the liability); and (2) any event or circumstance beyond the liable party’s reasonable control.

You further acknowledge and agree that:

We are building lawyers in Australia. The scope of our legal services is set out on our website: www.SmarterBuilder®.com.au We do not provide legal advice on the law of other countries or in any legal areas outside of the areas set out on our website. To the extent we offer guidance on legislation, contractual documentation or other matters that are subject to or governed by a legal jurisdiction outside of Australia, such guidance is of a high level and commercial nature only, and should not be treated as legal advice; and

where you have engaged us to conduct a written contract review, you acknowledge and agree that:

(1) our review is not intended to set out or address all legal and commercial risks associated with your contract; (2) our review is not intended to be a substitute for you reading the contract; and

(3) the scope of our review is limited to us identifying those items that we consider to be the key legal risks associated with your contract.

This clause will survive the expiry or termination of these Terms.

Third Party Advice and Services

On request by you, we may provide you with contact details of or refer you to third party specialists. You may refuse any third party service or referral. We make no representation or warranty about the third party advice or provision of services. We disclaim all responsibility and liability for all losses, damages, expenses and costs that you or any person may suffer or incur due to the third party advice or provision of services, or their failure to advise or provide services.

We may:

Provide commissions or benefits to referral partners in exchange for them referring potential clients to us; and
Receive commissions or benefits for the referral of potential clients to referral partners.

Termination

You may terminate these Terms by written notice to us. For Subscription Services, you must provide at least 1 month’s prior written notice. The Subscriber must be subscribed to any subscription for a minimum of twelve (12) months. If the Subscriber wishes to terminate prior to the six month period, the Subscriber is liable for any period unpaid up to and including the six month period.

We may cease to act for you, cancel your Subscription or refuse to provide you with further legal services if you breach these Terms or the law, we consider your use or usage of your Subscription or our services is unprofessional, or is not fair or reasonable, or we otherwise consider it is no longer appropriate to act for you (Default), and such Default is either in Annual Threshold able of remedy or has not been remedied within 14 days of us notifying you of the Default.

If you terminate these Terms, you will be required to pay our professional fees and costs in providing the services to you up to the date of termination.

Subject to these Terms and your rights as a “consumer” under the Australian Consumer Law (if any), the Subscription Fee is non-refundable. You acknowledge and agree that if you terminate or cancel these Terms (and your Subscription Services) prior to the expiry of the Subscription Term, other than as a result of our default, the remainder of your Subscription Fees for the remainder of your Subscription Term will become immediately due and payable to us on the date of termination.

If you provide us with sufficient evidence (as determined by us) that your cancellation is due to unforeseen circumstances outside of your control, or if due to you or your business suffering undue financial hardship, our team will work with you to manage your Subscription payments, which may include (at our discretion) suspending your Subscription, putting you on a payment plan, or waiving part or all the remaining Subscription Fee payable to us.

If we terminate these Terms (other than because of your default, early termination or failure to pay), we will provide you with a refund of any unused portion of the Subscription Fee prepaid by you to us. This will be your sole and exclusive remedy for our termination under this clause.

Conflict of Interest

At any time, we may terminate this retainer, it comes to our direct knowledge that there is a Conflict of Interest. We will undertake our best endeavours to conduct conflict checks.

Privacy

We are committed to protecting your personal information in accordance with our legal obligations and our Privacy Policy (which is available here: https://SmarterBuilder®.com.au/privacypolicy/).

GST

Where applicable, GST is payable on our professional fees and expenses and will be clearly shown on our tax invoices. By accepting these Terms, you agree to pay us an amount equivalent to the GST imposed on these charges.

Assignment

Without limiting our right to assign any debt under these Terms to a third party, a Party must not assign or deal with the whole or any part of its rights or obligations under these Terms without the prior written consent of the other Party.

Severance

If any provision (or part of it) of these Terms is held to be unenforceable, invalid or unlawful in any jurisdiction, then the provision (or relevant part) must be:

to the extent possible, read down and construed so as to avoid the unenforceability, invalidity or illegality; or

severed from these Terms,

and the remaining provisions (and remaining part of the provision) of these Terms are valid and enforceable.

Jurisdiction & Governing Law

These Terms are governed and construed in accordance with the laws of Victoria. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts of Victoria.

More Information

For more information about your rights, please read the fact sheet titled ‘Legal Costs – your right to know’. You can ask us for a copy, obtain it from your local law society or law institute, or download it from their website.

Definitions

Subscription Term: According to our Subscription Plan, memberships are subject to a minimum period or Subscription Term. Unless you notify us beforehand, your Subscription will be automatically renewed for the same period (Renewal Period) at the conclusion of the Subscription Term.

Cancellation: If you cancel your Subscription before the end of the Subscription Term, you will continue to be charged the Subscription Fees for the remainder of your Subscription Term. However, if the cancellation is due to circumstances beyond your control or extreme financial hardship, our team will assist you in managing your Subscription payments (including, for example, temporarily suspending your Subscription or putting in place a payment plan).

As our products continually evolve and iterate for the benefit of our customers, we may make modifications to our Subscription offering. Before these modifications take effect, you will be notified and given the option to cancel your Subscription if you do not agree with them.

Fair Use and Termination: Your access to the Subscription Services is contingent on your use of the services in a commercially reasonable and fair manner. We have the right to terminate your Subscription, including if we deem your usage of the service to be unfair or unreasonable.

Your Subscription Fees are as specified in your Subscription Plan and are fixed for the duration of your Subscription Term, subject to an annual increase of 5%. We may notify you of a Subscription Fee increase during any Renewal Period.

Disclosure of Information: We may disclose your personal or confidential information to third parties if required for the proper administration of your case. Your information will be disclosed in accordance with our privacy policy and applicable laws.

Referral Benefits: We may receive a benefit from a referral partner for referring you to them, and we may offer referral partners a benefit for referring you to us.

Hourly Rates: We may alter our hourly rates annually on 1 July every year. We will notify you before any modification takes effect.

Contract Reviews: If you have hired us to conduct a contract review, we will only address or identify the legal risks that we consider to be the most significant.

We will not be responsible for any damages caused by our referral partners.

1 March 2023

Terms​

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Terms