TERMS AND CONDITIONS

2 Definitions and Interpretation

2.1 In this Agreement the following words and expressions shall unless the context otherwise requires, have the following meanings:

2.1.0 "The fee proposal" means the signed document that will contain the agreed scope of works for the project and agreed fee. 

2.1.1 “Agreement” means this document (including sections headed “Terms and Conditions”, “the fee proposal” and “Execution”) together with the attached Annexures.

2.1.2 “Annexures” means the fee proposal document.

2.1.3 “Completion Date” means the date when the Project is completed

2.1.4 “Confidential Information” means all Records, information, knowledge, ideas, concepts, technology, marketing and commercial knowledge relating to or developed in connection with or in support of the Services, including this Agreement and including any information learned about the Client or in relation to the Client which by its very nature is confidential but excludes any information in the public domain.

2.1.5 “Contract Sum” means the amount payable by the Client to the Building Designer as specified in the Details and in accordance with this Agreement.

2.1.6 “Copyright Act” means the Copyright Act 1968 (Cth), as amended.

2.1.7 “DA, CC, CDC” means Development Application, Construction Certificate and Complying Development Certificate.

2.1.8 “Details” means the section of this Agreement headed “Details”.

2.1.9 “Design Documents” means the any works created by the Building Designer in the course of providing the Services including (without limitation), all plans, drawings, drafts, revisions and other documentation relating to the Services.

2.1.10 “Intellectual Property Rights” includes (both in Australia and throughout the world and for the duration of the rights):

(a) any patents, utility models, copyrights, eligible layout rights, designs, trademarks and other like rights;

(b) any invention, discovery, trade secret, know-how, computer software and confidential information; and

(c) any business, scientific, technical and product information, including proprietary information, relating to development of new products, whether registered, registrable or unregistered but excludes non-assignable moral rights and similar non-assignable personal rights.

2.1.11 “No Claim” means no claim for any moneys or for any adjustment to the Contract Sum or for any extension of time for completion of the Services or for costs, expense, or loss or damage on any basis whatsoever including, without limitation, no claim:

(a) pursuant to contract;

(b) in tort (including negligence);

(c) on quantum merit;

(d) pursuant to quasi contract;

(e) for unjust enrichment; or

(f) pursuant to any other principle of law or equity.

2.1.12 “Notice” means notice given in accordance with Clause 11.

2.1.13 “Party” or “Parties” means the Client and the Building Designer.

2.1.14 “PCA” mean principal certifying authority relevant to the Project

2.1.15 “Person” means a natural person or a corporation or company or trust or registered business.

2.1.16 “Qualifying Cause of Delay” means any event or circumstance beyond the reasonable control of the Building Designer.

2.1.17 “Records” means all sketches, designs, reports, plans, drawings, specifications, samples, models, patterns, photographs, graphics, logos, artworks or other documents supplied by or created in the course of or in connection with the Building Designer performing the Services or fulfilling the requirements of this Agreement, either by the Client or the Building Designer or those for whom the Building Designer is responsible.

2.1.18 “Services” means the services provided by the Building Designer to the Client as defined in the contract.

2.1.19 “Start Date” means the date on which the Building Designer is engaged by the Client in respect of the Project.

2.1.20 “Tax Invoice” means a GST invoice compliant with A New Tax System Goods & Services Tax Act 1999.

2.2 In this Agreement, unless the context otherwise requires:

2.2.1 Words in the singular shall include the plural and words in the plural shall include the singular.

2.2.2 A reference to a "Person" includes a firm or body corporate or unincorporated as well as an individual.

2.2.3 Part 4 of the Civil Liability Act 2002 (NSW) may not be relied upon by the Building Designer in response to any apportionable claim by the Client and the comparative responsibility of any concurrent wrongdoer who is not a party to the proceedings shall not limit the Building Designer’s liability.

3 The Scope of Contract and Payment

3.1 Building Designer must provide the Services in a professional and expeditious manner.

3.2 The Building Designer will be responsible for the whole of the Services and for any matter arising from the Services.

3.3 The Client shall be responsible for supplying the Certificate of Title to the subject land, provision of plans of existing building as applicable and instructing the Building Designer to carry out ongoing works for the Client subject to any variation made to the Services or Contract.

3.4 The Building Designer is entitled to assume all pre-existing design of the building is compliant with Australian Building Code and standards and that no review is required by the Building Designer.

3.5 The Client will pay the Building Designer the Contract Sum and any other fees pursuant to these Terms and Conditions. 

4 Building Designer’s Obligations

4.1 Professional standard of care

The Building Designer :

(a) shall in respect of each and every service involved in the Services, exercise the standard of skill, care and diligence in the performance of those services that would be expected of a professional provider of the Services; and

(b) Notwithstanding other terms contained within this Agreement, the parties acknowledge that whilst the Building Designer’s reasonable endeavour will be exercised to meet the Client’s requirements for the Project including budget for the Project, the Building Designer does not guarantee the Services will be consistent with the Project requirements where circumstances may arise which are beyond control of the Building Designer.

4.2 Additional information, documents and other particulars If the Building Designer considers, at any time prior to commencing the Project or during the provision of the Services, that the information, documents and other particulars made available to him by the Client are not sufficient to enable the Building Designer to provide the Services in accordance with this Agreement, the Building Designer must advise the Client and the Client shall then provide such further assistance, information or other particulars as necessary in the circumstances.

4.3 Notice of matters likely to change scope or timing of services If the Building Designer becomes aware of any matter which will change or which has changed the scope or timing of the Services then the Building Designer will give Notice to the Client and the Notice will contain, as far as practicable in the circumstances, full particulars of the change.

4.4 Timely provision of Services

The Building Designer shall perform the Services within a reasonable time to facilitate the timely and expeditious completion of the Project in co-operation with the Client or other consultants and third parties involved in the Project.

4.5 Co-ordination

(a) The Building Designer may be required to co-ordinate the provision of the Services with the activities of any other consultants and at the direction of the Client.

(b) If the performance of the Services is delayed more than three (3) months from the date of this Agreement due to no default of the Building Designer, then the Building Designer may give notice to the Client that it requires an alteration to the Services or alternation to the Contract Sum and the Client must reasonably grant such change.

4.6 PCA Approval

Notwithstanding any other terms of contained within this Agreement and if applicable as part of supply of the Services, the parties acknowledge that whilst the Building Designer’s every endeavour will be exercised to assist the Client in obtaining PCA’s development approval(s) for the Project, the Building Designer does not guarantee the PCA’s approval as circumstances may arise which are beyond control of the Building Designer. The Client will have No Claim in respect of any matter, fact or thing of any nature arising out of or in connection with the PCA approval or any delay caused by PCA approval.

4.7 Indemnity

(a) The Building Designer shall indemnify the Client in respect of all claims, demands, actions, proceedings, costs, losses, expenses and damages whatsoever which are brought against the Client or incurred or suffered by the Client and which arise out of the failure of the Building Designer to comply with or perform its obligations under this Agreement, but shall be limited to:

1. the supplying of the relevant Services again; or 
2. the payment of the cost of having the Design Documents up to the date of any such claim, demand, action, proceeding, cost, loss, expense or damage.

(b) The Client shall indemnify and keep indemnified the Building Designer at all times against all actions, proceedings, claims, demands, liabilities, either express or implied, and all costs, losses, losses of profit, damages and expenses whatsoever which may be taken against the

Building Designer or incurred or become payable by the Building Designer resulting or arising from:

1. any breach by the Client of this Agreement;
2. the Client’s use of Design Documents in a way other than as permitted under applicable law and regulation, that is subject to unauthorised amendments by a third party;

and

1. the negligent act or omission of the Client or its agents or other contractors and consultants (not including the Building Designer ).

(c) The Building Designer shall have no liability to the Client for or in respect of any indirect or direct consequential losses (including without limitation loss of actual or anticipated profit or revenue, business interruption, delay costs, financing costs, holding costs and loss of opportunity).

(d) To the extent permitted by law, the Building Designer’s total aggregate liability to the Client arising out of or in connection with the Services where under the law of contract, in tort, (including negligence), in equity, under statute or otherwise, is limited to a maximum amount equal to the Contract Sum or otherwise total sum payable by the Client to the Building Designer for Services under this Agreement.

(e) No liability whatsoever shall attach to the Agreement unless all variations and payments have been paid in full by the Client.

5 Client’s Instructions and Variations

5.1 The Client may instruct the Building Designer to vary the Services in writing.

5.2 The Building Designer must provide a written reply within reasonable time of receiving a notice under Clause 4.1 by:

(a) detailing the work required to carry out the variation;

(b) the estimated costs of the variation; and

(c) any extension of time required as a result of carrying out the variation. and the Client must reasonably grant such extension of time and costs of the variation (if any).

5.3 The costs of the variation would be priced based on the estimated Contract Sum and hourly rates set out in Annexure B or if otherwise not set out in Annexure B, the costs of the variation would be priced at a reasonable rate provided by the Building Designer.

5.4 The Building Designer may request a variation in writing to the Client in order for the Services to be compliant with any applicable law or to accommodate to any changing circumstances. The Building Designer must provide a written request to the Client setting out the details of the work required to carry out the variation, the estimated cost of the variation and any extension of time required as a result of carrying out the variation.

5.5 The Client must not unreasonably withhold consent to any variation requested by the Building Designer and the Client must provide a written reply within reasonable time of receiving a notice under Clause 4.4.

5.6 If there is a dispute arising under Clause 4.1 or 4.4, the parties must follow the dispute resolution process set out in Clause 20 of this Agreement.

5.7 The Client will have No Claim arising out of or in connection with a Variation conducted by a third party instructed by the Client.

6 Delay and Extension of Time

6.1 When it becomes evident to the Building Designer that anything including an act or omission of the Client or an employee, other consultant, contractor or agent of the Client, or the PCA may delay carrying out the Services, the Building Designer shall promptly and in any event, within a reasonable time, notify the Client with details of the possible delay and the cause.

6.2 If the Building Designer is or will be delayed in carrying out the Services by a Qualifying Cause of Delay, the Building Designer must, within a reasonable time of becoming aware of the cause, give notice to the Client outlining the cause and possible extent of the delay.

6.3 Within 5 business days after the Building Designer’s notice of delay, the Client will give written direction to the Building Designer if the time for carrying out the Services is extended by the extent of the delay.

6.4 The Client shall pay the Building Designer such extra costs as are necessarily incurred by the Building Designer by reason of the delay under Clause 5.1 and 5.2.

7 Building Permit

The Client shall ensure that, prior to commencement of any on-site building work to which the services relate, a building permit in relation to the work has been issued and is in force under the Home Building Act 1989 (NSW),

8 Laws

The Building Designer must comply with all laws and the requirements of all authorities having jurisdiction over the Services, particularly any industry specific laws or regulations or guidelines laid down by professional bodies of relevance to the Building Designer’s profession.

9 Start Date and Completion Date

Subject to Clause 9, the Building Designer must:

(a) commence the Services on the Start Date, or such reasonable date after this Agreement;

and

(b) complete the Services by the Completion

Date being the earlier of:

1. the date the Services are completed;
2. the date the Building Designer’s final Tax Invoice is paid;
3. the date of termination under clauses 9.3 or 9.4, or

(c) as such date may be agreed or otherwise adjusted by the parties.

10 Termination

10.1 Should the Building Designer be in default of any provision of these Terms and Conditions, then the Client may give Notice in writing to the Building Designer describing the default and request for the default to be remedied within 14 business days of sending the Notice.

10.2 If the Building Designer does not make good the matter in which it is in default within that period of time, then the Client may give further Notice to the Building Designer that the engagement of the Building Designer will be terminated within 7 business days if not fully rectified.

10.3 If the Client is in default of any provisions of these Terms and Conditions, then the Building Designer may at any time give Notice that the Building Designer intends to cease providing the Services and obligations of the Parties. Such notice must not be given any earlier than 7 business days from the date the Building Designer intends to cease providing the Services. Upon reaching 7 business days, the Building Designer may issue a Notice of Termination.

10.4 Either party may terminate the Agreement immediately without notice, if the other party becomes the subject of bankruptcy, liquidation or winding up procedures or otherwise threatens to become insolvent;

10.5 Upon termination, the Client must return any designs in their possession to the Building Designer and must delete any electronic files of designs which the Client or its associates have in possession and the Client shall not be permitted to use the designs without first obtaining the Building Designer’s prior written consent.

10.6 If the Agreement is terminated under Clause 9 and the termination is in no way connected with or caused by an act or omission of the Building Designer, the Client shall pay the Building Designer the amount due to the Building Designer for any outstanding invoices and reasonable costs for the Services executed up to the date of termination of this Agreement.

10.7 Despite any other terms contained within these Terms if the Agreement is terminated under Clause 9 and the termination is in no way connected with or caused by an act or omission of the Building Designer in breach of this Agreement, any Fees paid by the Client to the Building Designer for the Services completed or part completed to the date of the termination would not be refundable and the Client shall not make any claims, demands, actions, or proceedings in respect of these Fees.

11 Claims and Payments

11.1 This Clause is subject to any additional details specified in Annexure B.

11.2 The Building Designer may, from time to time, submit a Tax Invoice for payment to the Client for the value of Services completed (“Invoice”).

11.3 The payment for Invoice must be made by way of an electronic funds transfer to the Building Designer’s nominated bank account or as otherwise directed by the Building Designer. Time for payment for the Services shall be of the essence and will be stated on the invoice, quotation or any other order forms. If no time is stated then payment shall be due on delivery of Services.

11.4 If the Client:

(a) fails to pay an invoice in accordance with Clause 10.3, interest may be charged at the rate of 8% per annum or part thereof upon the amount outstanding.

11.5 If this Agreement has been terminated by either party in accordance with Clause 9, the Building Designer may invoice submit a Tax invoice for payment to the Client for the value of Services completed prior to the date of Termination.

12 Notice

12.1 All Notice must be sent by email to the recipient party specified on the first page of this Agreement.

13 Insurance

13.1 The Building Designer must at its own cost, effect and maintain the insurances specified in the Details.

13.2 If the Services provided by the Building Designer is to be used or otherwise utilised by another party, the Client shall effect in relation to the Services, a professional indemnity insurance specified in the Details. The insurance shall be effected and maintained until seven (7) years after the date evidenced in a certificate of practical completion for such works completed by the Client. The insurance policy referred to in this Clause shall note the Building Designer as an interested party.

13.3 Each party must pay any excess payable under the insurances referred to in Clauses 12.1 and 12.2. The parties shall provide satisfactory evidence of such insurance when requested by the other party.

13.4 The effecting of insurance does not limit the liabilities or obligations of each of the parties under other provisions of these Terms and Conditions and under no circumstances does it bar each party against making a claim under each other party’s policy and directly against the other party if necessary.

14 Goods and Services Taxation

14.1 "GST” means tax that is payable or imposed as goods and services tax under the GST Law and the "GST Act" is the act titled A New Tax System (Goods and Services Tax) Act 1999 (Cth). Capitalised expressions set out in this Clause bear the same meaning as those expressions in the GST Act.

14.2 Except where express provision is made to the contrary, and subject to this Clause, any amount that may be payable under these Terms and Conditions is exclusive of any GST.

15 Notice of Claims 

15.1 Clauses 14.2, 14.3 and 14.4 do not apply to claims made under Clause 10.

15.2 All money claims made in accordance with these Terms and Conditions and submitted in the ordinary course, whether for damages, compensation, unjust enrichment, restitution, or adjustment to the Contract Sum, all matters of interpretation and clarification of these Terms and Conditions and all claims whether in contract, tort (including negligence), unjust enrichment or otherwise (collectively referred to as a “claim”) will be dealt with in accordance with this Clause.

15.3 Each claim in respect of which there is a separate legal entitlement must be in writing and specify:

(a) the perceived legal basis for the claim including, where appropriate, a reference to

the Clause of these Terms and Conditions under which the claim is made;

(b) the facts relied upon in support of the claim in sufficient detail to permit verification; and

(c) details of the quantification of the sums claimed then known to the Building Designer and the manner in which such sums have been calculated.

16 Engagement of Experts

16.1 The Client may engage other experts and consultants to assist the Building Designer in specialist areas, and in the event that the Client does so approve such engagement, the Client is responsible for all monies payable to such other experts and consultants and shall, to the fullest extent permissible under the law, relieve the Building Designer from any liabilities, whether under Contract or in tort, to the Building Designer as a consequence of any default by such other building designer or consultants in the performance of his or her duties to the Client in connection with the Project.

16.2 The Building Designer does not warrant or make any representation or guarantee to the Client as to the quality or accuracy of the services to be provided by any consultants, or the suitability of the consultants engaged under Clause 15.1.

16.3 The Client provides the Building Designer with authority to act as agent of the Client in all dealings with the aforesaid consultants. The Building Designer shall act as the agent of the Client at all times and not as an independent certifier or assessor.

16.4 The Client will have No Claim against the Building Designer in respect of any matter, fact or thing of any nature arising out of or in connection with the engagement of third party experts and consultants in accordance with this clause 15.

17 Intellectual Property Rights

17.1 The Client must not infringe any Intellectual Property Rights or moral rights when supplying information or Records to the Building Designer to perform the Services.

17.2 Each party shall take all necessary action to ensure that it does not cause the other party to infringe any other person’s rights (including moral rights) under the Copyright Act.

17.3 The Intellectual Property Rights and moral rights in the Design Documents and any documents produced by the Building Designer shall vest in the Building Designer. The Building Designer shall provide to the Client a non-transferable, non-exclusive, royalty free licence to use such information or documents for the purpose of the

Project only, provided that:

(a) the Client has paid all amounts due and payable to the Building Designer in accordance with this Agreement, subject to Clause 9 of this Agreement; and

(b) the Building Designer has completed the Services in accordance with this Agreement.

17.4 No licence is granted to the Client to use or reproduce the Design Documents in connection with any other work that is unrelated to this Project. The Building Designer may provide a licence to a third party to use the Design Documents subject to a licence fee being paid to the Building Designer (as determined by the Building Designer).

17.5 Any unauthorised reproduction in whole or in part of the Design Documents will constitute an infringement of copyright in accordance with the provisions of the Copyright Act.

17.6 If the Client is in breach of any obligation to make a payment to the Building Designer under this Agreement, the Building Designer may at its absolute discretion revoke the licence referred to in Clause 16.3.

17.7 The Client acknowledges and consents to the Building Designer’s use of the designs and share relevant site information including surveys and CAD files with third party consultants for the purpose of the production and documentation of the Project at both the DA, CC and CDC stages.

18 Building Designer not an employee

18.1 The Building Designer, its officers, employees, servants and agents and any other Persons engaged by the Client in the performance of the Services shall not by virtue of the Agreement or the performance of the Services thereby be or become in the service or employment of the Client for any purpose.

19 Confidentiality

19.1 Each party must keep the Confidential Information confidential and not disclose it to any third party without the prior written consent of the Client unless disclosure is required by law.

20 Assignment

Neither party may assign, transfer any obligation under this Agreement without prior written consent of the other party. Unless stated in writing to the contrary, no assignment or transfer shall release the assignor from any obligation under this Agreement.

21 Dispute Resolution

21.1 In the event that any dispute arises between the Client and the Building Designer from the performance or as to the meaning of this Agreement, both Parties shall attempt to resolve the dispute in person within 7 days of the manifestation of the dispute. Should the Parties not resolve the dispute within the 7 day period above then the dispute must be referred to Building Designers Association of Australia for mediation. The parties must pay the mediator’s remuneration in equal shares.

21.2 Notwithstanding the referral of any dispute to arbitration or litigation, the Client shall, if the Services have been completed by the Consultant, make the payment to Building Designer in accordance with this Agreement.

22 Non-Disparagement

22.1 The Client agrees not to make any oral or written statement about the Building Designer which is intended or reasonably likely to disparage the business of the Building Designer, or otherwise degrade the Building Designer‘s reputation.

23 Governing Law

23.1 This Agreement shall be governed by the laws in force in the States of New South Wales and the Parties irrevocably submit to the non-exclusive jurisdiction of the courts of that State.

24 Whole Agreement

24.1 This document and its Annexures is the whole agreement between the parties and this Agreement supersedes all oral and written communications by or on behalf of any of the parties.

25 No reliance or warranties and representations

25.1 In entering into this Agreement, each Party:

(a) has not relied on any warranty or representation (whether oral or written) in relation to the subject matter of this Agreement made by any Person; and

(b) has relied entirely on its own enquiries in relation to the subject matter of this Agreement.

25.2 This Clause does not apply to warranties and representations that this Agreement expressly sets out.

26 Waiver or Variation

26.1 A party's failure or delay to exercise a power or right does not operate as a waiver of that power or right.

26.2 The exercise of a power or right does not preclude:

(a) its future exercise; or

(b) the exercise of any other power or right.

26.3 The variation or waiver of a provision of this Deed or a party's consent to a departure from a provision by another party will be ineffective unless in writing executed by the parties.

27 Further Assurance

27.1 Each party will from time to time do all things (including executing all documents) necessary or desirable to give full effect to this Agreement.

28 Severance

28.1 If any part of this Agreement is invalid or unenforceable, this Agreement does not include it. The remainder of this Agreement continues in full force.

29 No Merger

29.1 Nothing in this Agreement merges, extinguishes, postpones, lessens or otherwise prejudicially affects any right, power or remedy that a party may have against another party or any other person at the time.