THE CONDITIONS

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1. DEFINITIONS

Unless the context otherwise indicates, whenever used in this Agreement each word or phrase which appears in bold in clause 1, has the meaning given to it in this clause 1 (as the case may be).

"Change" has the meaning referred to in clause 4.3.

"Code" means the NSW Designer s Code of Professional Conduct, as attached in schedule D.

“Date of the Agreement” means the date when this Agreement has been signed by both the Client and the Designer.

“Deliverable” means any deliverable to be handed over to the Client as a component of the Services as identified in schedule B.

“Fees” means the fees (exclusive of GST) payable for the Services, as adjusted in accordance with this Agreement.

“Intellectual Property Rights” means all present and future rights throughout the world conferred by law or in relation to copyright, trademarks, designs, patents, circuit layouts, plant varieties, business and domain names, inventions and other results in the industrial, commercial, scientific, literary or artistic fields, whether or not registrable, registered or patentable, including all rights in all applications to register these rights, all renewals and extensions of these rights and all rights in the nature of these rights, but excluding Moral Rights.

 

"Insolvency Event" means one or more of the following events:

(a)          Decura Design informs the Client, or Decura Designs creditors generally, that the Designer is insolvent or is unable to proceed with the Agreement for financial reasons;

(b)          execution is levied against the Designer by a creditor;

(c)           where the Designer is an individual person or a partnership that includes an individual person, the person:

(i)            commits an act of bankruptcy;

(ii)           has a bankruptcy petition presented against him or her or presents his or her own petition;

(iii)          is made bankrupt;

(iv)          makes a proposal for a scheme of arrangement or a composition; or

(v)           has a deed of assignment or deed of arrangement made, accepts a composition, is required to present a debtor’s petition, or has a sequestration order made, under Part X of the Bankruptcy Act 1966 (Cth); and

(d)          where the Designer is a corporation any one of the following:

(i)            notice is given of a meeting of creditors with a view to the corporation entering into a deed of company arrangement;

(ii)           the corporation entering a deed of company arrangement with creditors;

(iii)          a controller, administrator, receiver, receiver and manager, provisional liquidator or liquidator is appointed to the corporation;

(iv)          an application is made to a court for the winding up of the corporation and is not stayed within 10 calendar days;

(v)           a winding up order is made in respect of the corporation;

(vi)          the corporation resolves by special resolution that it be wound up voluntarily (other than for a members’ voluntary winding up under s 491 of the Corporations Act 2001 (Cth)); or

(vii)         a mortgagee of any property of the corporation takes possession of that property.

“Moral Rights” means rights of integrity of authorship, rights of attribution of authorship, rights not to have authorship falsely attributed and rights of a similar nature conferred by law that exist, or may come to exist, anywhere in the world.

“Other Consultants” means any consultant or other person (including a contractor) engaged by the principal to provide design or other consultancy services, other than the Designer and its sub consultants.

"Phase" means, if the Services are divided into phases, a phase identified in schedule B.

“Project” means the project identified in schedule A of this Agreement.

"Reimbursable Expenses" means the expenses identified in schedule C, as adjusted in accordance with the Agreement.

“Services” means the services referred to in schedule B of this Agreement (or any part of them).

“Statutory Requirements” means any statute, regulation, order, rule, legislation or other obligation enforceable under any statute, regulation, order, rule or legislation.

“WH&S Legislation” means the Work Health and Safety Act 2011 (NSW) and the Work Health and Safety Regulation 2011 (NSW).

 

2. THE SERVICES

2.1         The Designer will perform the Services in accordance with this Agreement.

2.2         Unless otherwise instructed by the Client, the Designer will commence the Services and complete the Services by the dates set out in schedule A.

2.3         If the Services were commenced prior to the Date of the Agreement, this Agreement will apply to those Services.

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3. PERFORMANCE OF THE SERVICES

3.1         The Designer will take all reasonable steps necessary to understand the Client’s requirements for the Services.

3.2         The Designer will examine all information and documents provided by the Client prior to the Date of the Agreement.

3.3         If the Designer becomes aware of any matter which may significantly change or significantly delay the performance of the Services it will notify the Client within 7 calendar days of the delay first occurring. If the Designer is delayed by act or omission of the Client, a suspension of the Services under clause 11 (except where a cause of the suspension was an act, default or omission of Designer ) or a Change, the Designer will be entitled to a reasonable extension of time and the dates in schedule A must be extended.

3.4         The Designer will, subject to events beyond its control, retain the personnel listed in schedule A as the key personnel performing the Services. The Client may acting reasonably object to any of the Designer ’s personnel, following which the Designer will replace the person or persons with personnel acceptable to the Client as soon as reasonably practicable.

3.5         The person referred to in schedule A is the Designer’s authorized representative for all the purposes of this Agreement. The Designer will advise the Client in writing prior to changing its authorized representative.

3.6         The Designer will perform the Services with the degree of professional skill, care and diligence reasonably expected of an Designer  qualified to provide the same or similar services, including to provide the Services with reasonable promptness.

3.7         The Designer represents that it has prepared the Deliverables with the degree of professional skill, care and diligence reasonably expected of an Designer  qualified to provide the same or similar services.

3.8         The Services (including the Deliverables) will:

(a)          satisfy the requirements identified in schedule B;

(b)          be compliant with Statutory Requirements and Australian Standards, unless otherwise instructed by the Client; and

(c)           not infringe any patent, registered design, copyright, moral rights or other protected right.

3.9         In performing the Services, the Designer will hold any license, registration and professional qualifications required by law to perform the Services in accordance with Statutory Requirements.

3.10       The Designer will provide to the Client in a timely manner and in accordance with any directions from the Client all relevant information relating to the Designer ’s design to ensure an expeditious review by the Client or a suitably qualified person engaged by the Client.

3.11       If the Services involve the Designer  administering any building contract entered into between the Client and a contractor (Building Contract), then pursuant to section 8(2) of the Code, the Designer :

(a)          will act with fairness and impartiality in administering the Building Contract;

(b)          will discharge the Designer 's obligations in connection with the administration of the Building Contract diligently and promptly;

(c)           will provide the Client with relevant information about the administration of the Building Contract in a timely manner; and

(d)          will not seek or receive any payments or other inducements from any person wishing to influence the Designer  to administer the Building Contract for the benefit or detriment of any part to the Building Contract.
 

4. CHANGES

4.1         If the Client instructs the Designer to rectify substantive errors, omissions, ambiguities or discrepancies in any deliverables or other documents prepared by the Designer or to clarify or explain any matter, the Designer will comply with the instruction as soon as reasonably practicable and where relevant reissue the drawings, specifications or the other documents to the Client.

4.2         The Client may give the Designer written notice of a proposed increase, decrease or omission to the Services (Change).

4.3         If the parties agree to a change under clause 4.2:

(a)          the parties must record their agreement to those changes in writing;

(b)          the services and fees under this agreement will be varied as from the date agreed by the parties; and

(c)          in the case of any agreed reimbursement for services performed, the Designer will be entitled to include this amount in its next claim for payment.

4.4         If the parties cannot agree on the changed scope of services, or a changed fee, then either:

(a)          the services and the fee will continue to apply without change; or

(b)          if the Designer  is no longer able to perform the services because the parties cannot agree to a change, the Designer  may terminate this agreement provided that it has given the Client 10 business days/ notice of the intention to terminate, and clause 12.4 applies.        

4.5 The person referred to in schedule A is the Client’s authorised representative for all the purposes of this Agreement.

5.            SCOPE OF RESPONSIBILITY

5.1         Subject to clause 5.2, the Designer will be liable to the Client for all claims, liability or loss in respect of personal injury (including death) to any person or damage to any property directly caused by a negligent act or omission of the Designer  whilst performing the Services.

5.2         The Designer 's liability to the Client will be reduced proportionally to the extent that the act, omission or negligence of the Client or its employees, agents or other consultants contributed to the injury, loss or damage.

5.3         The Designer will be liable for the care of all documents prepared by the Designer  or entrusted to it by the Client and will:

(a)          keep a record of the documents for a period of 6 years;

(b)          provide the Client with reasonable opportunity to inspect records  of  the  documents.  Hourly retrieval and transmittal costs apply; and

(c)           provide the Client with reasonable opportunity to make copies of the records of the documents, at the Client's cost. Hourly retrieval and transmittal costs apply.
 

6. INSURANCES
 

6.1         The Designer will effect and maintain insurance against any liability which may arise at common law or by virtue of any relevant workers or accident compensation legislation, in respect of any person employed by the Designer in connection with the Services for the duration of the Services provided by the Designer.

6.2         The Designer will effect and maintain professional indemnity insurance with a limit of indemnity of not less than the amount stated in schedule A in respect of legal liability arising from a breach of professional duty or negligence whether that duty is owed in contract or otherwise by reason of any act error or omission by the Designer or its employees or agents. The Designer will effect this insurance prior to commencing the Services and will maintain it for the duration of the Services provided by the Designer.

6.3         The Designer will provide the Client, upon request, with evidence of the insurances referred to in this clause 6.
 

7. PAYMENT

7.1         The Designer  is entitled to make claims for payments at the time stated in Schedule A for the value of the Services then completed. Such claims will show the value of Services done (including in accordance with any Phase), details of any other monies due to the Designer pursuant to provisions of the Agreement, including Reimbursable Expenses, and the amount of any previous payments (Payment Claim).

7.2         The Client must, within 5 Business Days (as that term is defined in  the  Building  and  Construction  Industry Security of Payment Act 1999 (NSW) of receiving a Payment Claim under clause 7.1, give the Designer  a schedule in relation to the Payment Claim:

(a)          indicating the amount of payment (if any) it proposes to make (Scheduled Amount);

(b)          setting out the amount already paid to the Designer; and

(c)           if the Scheduled Amount is less than the amount claimed by the Designer indicating why this is the case.

The Client may by any schedule correct any error which has been discovered in a previous schedule.

7.3         The Client must pay the Designer the Scheduled Amount within 7 Business Days of the date the Designer 's Payment Claim is made.

7.4         With each Payment Claim under clause 7.1, the Designer will give the Client a statement signed by the Designer, verifying that no wages or any other amounts are due and payable by the Designer to employees, agents or others whom the Designer is responsible in respect of the Services at the time for payment.

7.5         If any amount due and payable from the Client to the Designer remains unpaid after the date upon which it should have been paid, then interest is payable on that amount at the rate stated in schedule A from the date upon which the amount should have been paid to the date upon which the amount is paid.
 

8. INTELLECTUAL PROPERTY RIGHTS AND MORAL RIGHTS

8.1         All Intellectual Property Rights in documents prepared by the Designer for the purpose of the Services, including any copyright in any design or the Deliverables, will vest in the Designer upon creation. The Designer  grants to the Client a limited non-exclusive licence to use the Intellectual Property Rights, including the Designer 's design and the Deliverables, for the purpose of completing the Services.

8.2         The Designer represents that the use, maintenance, alteration or repair of the works the subject of the Services will not infringe any person’s Intellectual Property Rights or Moral Rights. The Designer  may, upon the Client's request, produce evidence of a waiver or consent in relation to any Moral Rights from the author of any relevant copyright work permitting the Designer  to carry out the services the subject of Services.
 

9. ENVIRONMENT, HEALTH AND SAFETY

9.1         In performing the Services, the Designer will comply with all applicable WH&S Legislation, Statutory Requirements and codes of practice relating to the environment, occupational health and safety and all relevant Australian Standards.

9.2         The Designer will, to the extent relevant to its design:

(a)          exercise and do all things reasonably practicable to fulfil all the functions and obligations of a designer under the WH&S Legislation; and

(b)          do all things reasonably practicable to comply with all obligations under the WH&S Legislation in connection with the Services.
 

10. OTHER CONSULTANTS

10.1       The Client will not be entitled to arrange for or allow persons (including consultants) (Other Consultants) to provide services concurrently with the performance of the Services by the Designer without obtaining prior written consent from the Designer .

10.2       The Client is solely responsible for any damage, loss or delay caused by Other Consultants. 
 

11. SUSPENSION

Notwithstanding any other provision in this Agreement, the Designer may, by written notice to the Client, suspend the performance of the Services for the Client's failure to pay the Designer  any amounts, including the Fees, in accordance with this Agreement.
 

12. TERMINATION

12.1       The Client may, by written notice effective on the date stated in the notice, terminate this Agreement if:

(a)          the Designer fails to rectify any substantial default under this Agreement which is capable of rectification within the time specified by the Client in a written notice;

(b)          there is a default by the Designer which is not capable of rectification; or

(c)           there is an Insolvency Event in respect of the Designer.

12.2       The Designer may terminate this Agreement by giving written notice to the Client if:

(a)          the Client fails to rectify a substantial default under this Agreement within 14 calendar days of a written request to do so;

(b)          there is an Insolvency Event in respect of the Client; or

(c)           pursuant to section 4(3) of the Code, the Designer reasonably believes in its professional judgment that the provision of part or all of the Services would require the Designer to act:

(i)            in a manner that the Designer considers unethical; or

(ii)           in contravention of the Designer s Act 2003 (NSW), the Designer s Regulations 2012 (NSW) or the Code.

12.3       Notwithstanding any other provision of this Agreement, the Designer may by 5 days written notice to the Client and, for the Designer 's sole convenience, terminate this Agreement effective from the date of the notice.

12.4       If this Agreement is terminated under clauses 4.4, 12.1 or 12.2, the Client must pay to the Designer:

(a)          the Fees for the Services performed to the date of termination; and

(b)          for the amount of any expense reasonably incurred by the Designer prior to the date of receipt of the notice of termination in contemplation of it providing the balance of the Services.
 

13. GOODS AND SERVICES TAX (GST)

13.1       In this clause 13, "GST", "Input tax Credit", "supply" and "tax invoice" have the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999.

13.2       All amounts and consideration in respect of a supply made under or in connection with this Agreement are exclusive of GST.

13.3       The Designer will provide tax invoices and other documentation necessary to ensure that any input tax credit for GST applicable to this Agreement can be claimed.
 

14. DISPUTE RESOLUTION

14.1       If a dispute or difference arises between the parties arising out of, under or in relation to the Agreement, a party may issue a notice giving details of the nature of the dispute and stating that it is a 'Notice of Dispute' under this clause 14.1.

14.2       The party receiving the Notice of Dispute must respond to it within 14 days of receipt.

14.3       Within 10 days after a notice has been given under clause 14.1 (or other period as may be agreed between the parties), the Client and the Designer must meet and attempt to resolve the dispute or difference.

14.4       Subject to clause 14.5, the dispute or difference may not be referred to litigation by either party unless the parties fail to meet in accordance with clause 14.3 or following the meeting, fail to resolve the dispute or difference.

14.5       Nothing in this clause 14 prejudices the right of a party to institute proceedings to enforce payment due under the Agreement or to seek injunctive or urgent declaratory relief.
 

15. LIMITATION OF LIABILITY

Notwithstanding any other clause under the Agreement and to the extent permitted by law, the Designer 's liability to the Client arising out of or in connection with the Agreement, in tort (including negligence) or under statute or otherwise at law or in equity:

15.1       does not include liability for loss of profit or revenue, loss of contract, loss of production, production stoppage, loss of data or any other consequential loss; and

15.2       is limited in the aggregate to the greater of:

(a)          the Fee; and

(b)          the amount recovered under an insurance policy it is required to effect and maintain under the Agreement.

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16. GENERAL

16.1       The Designer will treat as confidential, keep confidential and secure all information disclosed to it by the Client in relation to the Services and not copy, duplicate or otherwise reproduce any Confidential Information without the prior consent of the Client, except as is necessary to fulfil its obligations in relation to this Agreement or pursuant to any Statutory Requirement. This clause 16.1 does not limit the Designer 's right to otherwise use the Project for its marketing purposes (including taking photographs, advertising, media publications and website publications).

16.2       Any notice given under this Agreement will be given properly if delivered by hand or sent by certified mail or email to the address of the party to receive the notice stated in schedule A (or such other address as may be notified in writing by one party to the other).

16.3       The Client must not, except with the prior written consent of the Designer , novate or assign the Agreement to any other party.

16.4       This Agreement is the entire agreement between the parties and supersedes all previous agreements, proposals, representations, correspondence and discussions in connection with the Services.

16.5       This Agreement is relevant to, and is to be construed in accordance with the laws of the state or territory of New South Wales.