1.1 The Designer must provide the Services for the Project.
1.2 If any Services have been provided by the Designer for the Project prior to the date of this Agreement, this Agreement applies to those Services retrospectively.
1.3 The Designer may begin the first stage of the Services outlined in Quote/Fee Proposal. The Designer must obtain the Client’s approval before commencing work on each subsequent stage.
2.1 The Client must pay the Fees and Expenses to the Designer as set out in Quote/Fee Proposal.
2.2 All fees and expenses outlined in Quote/Fee Proposal are exclusive of GST. The Designer must provide to the Client a Tax Invoice when submitting claims for fees and expenses.
2.3 The Designer may submit claims for Fees and Expenses at the times and/or frequencies outlined in Quote/Fee Proposal. If no times for the submission of a claim for Fees and Expenses is stipulated in Quote/Fee Proposal, the Designer may submit a claim for Fees and Expenses every 14 days based on percentage complete for the work performed.
2.4 In addition to the fees payable to the Designer, the Client must pay to the Designer any expenses reasonably incurred by the Designer in providing the Services.
2.5 The Client must pay any fees claimed by the Designer within the period stated in Quote/Fee Proposal. If there is no period stated in Quote/Fee Proposals, all fees must be paid within five (5) Business Days from the Client receiving the claim from the Designer.
2.6 If, for any reason, the Client delays any aspect of the Services for more than 14 days, an invoice will be issued on the 15th day for payment for such of the Services as have been provided so far.
2.7 If any fee outstanding is not paid in the time required by Clause 2.5, the Designer may charge interest on overdue payments at the rate of 5% above the Reserve Bank of Australia cash rate must be paid by the Client on any amount not paid by the Due Date. The interest will be calculated daily and compounded monthly but in no circumstances will the interest charged exceed 25% per annum.
2.7 If fees are not paid within the time frame stipulated in Clause 2.5, the Designer may suspend the provision of Services to the Client by providing written notice to the Client stating:
(a) that the account remains outstanding; and
(b) if the account is not paid within five (5) Business Days from the date of the notice, the provision of the Services will be suspended.
3.1 The Designer must inform the Client within a reasonable time of the Designer being made aware of circumstances that may change the Services.
The Designer must inform the Client in writing of:
(a) the circumstances necessitating the change to the Services and Fees; and
(b) any impact this change may have on the Project; and
(c) any additional fees that will be incurred by the Client.
3.2 The Client may provide written instruction to the Designer varying the Services. The Designer may refuse to carry out the variation requested by the Client by notice in writing to the Client.
3.3 If the Services are to be varied in accordance with sub-clauses 3.1 and/or 3.2, the Designer must give a notice (“Variation Notice”) in the form set out to the Client stating:
(a) the work required to carry out the variation;
(b) the additional fees that will be incurred for carrying out the variation;
(c) the likely impact, if any, on the Project; and
(d) if the Designer requests the variation, the reason for the variation.
3.4 If the Client requests the variation, the Client must provide written notice to the Designer within five (5) Business Days of receiving the Variation Notice that it accepts the extra fees to carry out the variation. If the Client provides notice that it does not accept the fees the Designer shall not be required to carry out the variation.
3.5 If the Designer requests the variation as a result of a requirement of an approval authority, of a circumstance that could not have reasonably been foreseen at the time of entering into the Agreement, the Designer shall be entitled to a reasonable fee for the variation to the Services.
3.6 If the Designer has requested a variation for matters other than those outlined in sub-clause 3.5, the Client must provide written notice within five (5) Business Days of receiving the Variation Notice that it accepts the extra fees to carry out the variation. If the Client does not return the Variation Notice within the five (5) Business Day period the variation and the extra fees payable will be deemed to have been accepted by the Client.
4.1 The Client must provide all relevant information regarding the project, including:
(a) details of the site outlining any encumbrances or easements relating to the Project site;
(b) any budgetary restraint requirements for the Project;
4.2 The Client warrants the accuracy and completeness of all information provided to the Designer and acknowledges that the Designer will rely upon the accuracy of information provided.
4.3 If the Designer considers that any information, documents or directions provided by the Client are incomplete, inadequate or ambiguous, the Client must provide clarification of that information as requested by the Designer in writing.
4.4 The Client must promptly respond to any request for information or approval by the Designer with respect to the Services.
5.1 The Client authorises the Designer to act as the Client’s agent in relation to the Project in all matters set out or implied in this Agreement.
5.2 If the Client engages any other consultants for the Project the Client is responsible for those consultants and must pay their fees directly. Prior to engaging any other consultants, the Client must first obtain the Agreement of the Designer to engage that consultant.
5.3 If either the Client or the Designer engages and/or coordinates any consultants, the Client indemnifies the Designer against any claims that may be made arising out of or incidental to such services provided by those consultants.
6.1 The Designer retains copyright and reserves all present and future rights in all intellectual property in any design, drawings and documents prepared by the Designer, and in any works executed by those documents, drawings and designs.
6.2 Where the Client makes all payments required under this Agreement by the due date for payment, the Designer grants to the Client a limited licence to use any design, documentation and drawing produced under this Agreement, only for the purpose of attending to the construction of the Project.
6.3 Subject to Clause 6.2, no licence (express or implied) to the copyright and intellectual property of any design, drawings and documents produced in accordance with this Agreement can be inferred by the Client.
6.4 The Client grants a licence to the Designer to use and reproduce any of the documentation provided to the Designer for the express purpose of completing the Services.
6.5 The Client indemnifies and agrees to keep indemnified the Designer against any actions, claims or demands that may be brought against the Designer as a result of the Client providing information or documentation to the Designer by which copyright is not owned by the Client. Such indemnity includes legal costs on a solicitor and own client on an indemnity basis.
6.6 This Clause 6 does not merge on termination of this Agreement.
7.1 If the Designer provides an Estimated Building Cost of the construction costs of the Project the Client agrees that these estimates are not warranties of the cost to complete the Project. The Estimated Building Costs are estimates only and must not be relied upon by the Client.
8.1 The Designer does not give any warranty nor accept any liability in relation to the performance or non-performance of the Services except to the extent, if any, required by law or specifically provided for in this Agreement. If apart from this clause any warranty or liability would be implied by law, custom or otherwise, that warranty and liability is to the full extent permitted by law excluded. Nothing in this Agreement shall be read or applied so as to purport to exclude, restrict or modify or have the effect of excluding, restricting or modifying the application in relation to the supply of goods or services pursuant to this Agreement of all or any or the provisions of Part V of the Trade Practices Act 1974 (as amended) or any relevant state act or territorial ordinance which by law cannot be excluded, restricted or modified.
8.2 If any liability is implied by law, custom or otherwise, the liability of the Designer to the Client arising out of the performance or non-performance of the Services in this Agreement shall be limited to the Fees and Expenses.
8.3 The parties agree that all exclusions, indemnities or limitations of liability contained in this Agreement:
(a) shall survive termination of this Agreement; and
(b) will apply regardless of the form of any action (direct or indirect) whether in contract, strict liability, tort or otherwise at law and be effective regardless of the negligence or breach of duty (contractual, statutory or otherwise) of any of the parties, sub-contractors or any member of a party’s group.
8.4 The parties will enter into such further indemnity Agreements as are reasonably necessary to grant indemnities and allocate and limit liabilities in the manner specified in this Agreement.
9.1 If the Client fails to comply with any of the Client’s obligations under this Agreement or is otherwise in substantial breach of this Agreement, the Designer may give a notice (“the Termination Notice”) to the Client. The Termination Notice must:
(a) specify the breach or breaches of the Agreement by the Client;
(b) require the breach or breaches to be rectified within ten (10) Business Days of receiving the Termination Notice;
(c) state that if the breach or breaches are not rectified within the requisite time period, the Designer intends to terminate the Agreement.
9.2 If the Client fails to remedy the Client’s breach within ten (10) Business Days of receiving the Termination Notice, the Designer may terminate this Agreement by giving further written notice to the Client.
9.3 Notwithstanding any other provision in this Agreement, the Designer may terminate this Agreement by giving five (5) Business Days notice to the Client.
10.1 Either the Designer or the Client may terminate this Agreement immediately on giving written notice to the other party, if the other party:
(a) becomes insolvent or financially unable to proceed with the Agreement;
(b) becomes or is bankrupt or seeks to take advantage of the laws relating to bankruptcy;
(c) makes a composition or other arrangement with its creditors;
(d) assigns assets for the benefit of creditors generally;
(e) being a company, enters into a Deed of Company Arrangement or has a controller, administrator or receiver appointed;
(f) being a company, goes into liquidation or has a Court Order made for the winding up of that party or a resolution for its winding up is made;
and as a consequence, that party is unable to perform its obligations under this Agreement.
11.1 Upon termination, and without prejudice to the rights of either party:
(a) the Client shall pay to the Designer all amounts outstanding for Services rendered up to and including the date of termination. If the parties are unable to agree on the amount to be paid the amount shall be calculated by applying the hourly rate of $150 + G.S.T.;
(b) any licence granted by Clause 6 shall be deemed as not granted;
(c) nothing in this clause prejudices the right of either party to recover damages or exercise any other right or remedy under law.
12.1 Neither the Client nor the Designer shall assign or transfer this Agreement without the written consent of the other.
12.2 The Client shall not assign its licence in any intellectual property without the prior written consent of the Designer.
13.1 This Agreement shall be governed by the laws of the State of Queensland and the Commonwealth of Australia as appropriate.
14.1 This Agreement may only be varied by prior written Agreement signed by both parties.
15.1 Subject to sub-clause 15.1.8 any notice, approval, consent or other communication in relation to this Agreement must be:
15.1.1 In writing;
(a) Marked for the attention of the party's representative:
(b) Left or sent by prepaid ordinary post to the last notified address of the party;
(c) Sent by facsimile to the last notified facsimile number of the party;
(d) Sent by electronic mail (email) to the last notified email address of the party;
(e) A notice, approval, consent or other communication takes effect from the time it is received unless a later time is specified in it.
(f) If posted in Australia, a letter is taken to be received on the third day after posting;
(g) A facsimile is taken to be received at the time shown in a transmission report by the machine, which indicates that the whole of the facsimile was sent;
(h) An email is taken to be received at the time shown in a delivery confirmation report generated by the sender's email system;
(i) A notice pursuant to clause 6 shall not be sent by email.
16.1 “Agreement” means these Terms and Conditions of Contract along with all Schedules attached to the Agreement.
16.2 “Business Day” means a day that is not a Saturday, Sunday or day that is wholly or partly observed as a Public Holiday throughout Queensland.
16.3 “Estimated Building Cost” means the estimated cost for construction of the Project as stipulated by the Designer.
16.4 “Fees and Expenses” means the fees and expenses calculated in accordance with Schedule of Payments.
16.5 “Project” means the construction work required by the Client as outlined in The Project.
16.6 “Services” means the professional services to be provided by the Designer to the Client as described in Scope of Work.
17.1 In this Agreement:
(a) headings and explanatory notes do not form part of and cannot be used in its interpretation;
(b) words in the singular include the plural and vice versa;
(c) words importing a gender include every gender;
(d) reference to a party includes its heirs, executors, administrators, permitted assignees and transferees;
(e) references to a person, include an individual, firm or body corporated or unincorporated;
(f) if the time for giving any notice, making any payment or doing any other act required or admitted by this Agreement falls on a day which is not a Business Day, then the time for giving the notice, making the payment or doing the other act shall be deemed to be the next Business Day.
18.1 If any provision of this Agreement is held invalid by any Court, such provision shall be deemed modified to eliminate the invalid element and, as so modified, such provision or part shall be deemed to be part of this Agreement as though originally included. The remainder of this Agreement shall not be affected by such modification.
19.1 If a party to this Agreement consists of more than one person, such party shall be bound by the obligations undertaken by them jointly and severally.
No waiver of any condition or covenant contained in this Agreement or failure to exercise a right or remedy shall constitute a general waiver of the same or any other condition, covenant, right or remed
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