Terms & Conditions — design Ensemble

TERMS & CONDITIONS:

CLIENT OBLIGATIONS:

1.Supply of Certificate of Title to the subject land, including warranty of ownership and any covenants/caveats etc

2.Provision of plans of existing building as applicable

3.Engagement of nominated agreed consultants, and payment of the relevant nominated consultant’s accounts

4.Payment of all fees for submissions to Consent Authority and relevant authorising bodies

5.Lodgement of plans to relevant authorising bodies.

DISCLAIMER

The Client shall take all necessary action to ensure that there is no infringement of the Copyright Amendment (Moral rights) Act 2000. 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 any claim or infringement of the Copyright Amendment (Moral Rights) Act 2000.

GENERAL CONDITIONS

1.The Scope of Contract and Payment

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

b.The Client will pay the Building Designer all the monies payable pursuant to the Terms of Engagement and General Conditions contained within this Agreement.

2.Exclusivity

a.The Building Designer shall be the sole and exclusive owner of all rights, title and interests to any and all intellectualproperty rights arising from the performance of this Agreement, including, but not limited to, any copyrights, patent, know-how andotherwise, whether developed by the Building Designer or the Client based on the Building Designer's intellectual property, and inaccordance with clause 14.

3.Building Designer’s Obligations

a.The Building Designer 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;

b.The Building Designer will take reasonable steps to ensure that the Services are fit for their intended purpose.

c.Notwithstanding other terms contained within this Agreement, the parties acknowledge that whilst the Consultant’sreasonable endeavor will be exercised to meet the Client’s requirements for the Project including budget for the Project, theConsultant does not guarantee the Services will be consistent with the Project requirements where circumstances may arise whichare beyond control of the Consultant;

d.Notwithstanding other terms contained within this Agreement, the parties acknowledge that whilst the Building Designerwill take reasonable steps to assist the Client in obtaining construction or development approval(s) from relevant authorising bodyin relation to the Project, the Building Designer does not guarantee such relevant authorising body’s approval(s) as circumstancesmay arise which are beyond control of the Building Designer;

e.the Building Designer considers, at any time prior to commencing the Project, that the information, documents and otherparticulars made available to the Building Designer by the Client are not sufficient to enable the Building Designer to provide theServices in accordance with this Agreement the Building Designer must advise the Client in advance of commencing the Projectand the Client shall then provide such further assistance, information or other particulars as necessary in the circumstances.

f.In the event that the Building Designer considers it appropriate to do so, the Building Designer may, with the Client’sapproval, engage other consultants to assist the Building Designer in specialist areas, and in the event that the Client does soapprove such engagement, the Client accepts all responsibility for all monies payable to such other consultant and shall, to thefullest extent permissible under the law, relieve the Building Designer from any liabilities, whether under Contract or in Tort, to theClient as a consequence of any default by such consultant or consultants in the performance of his/her/its duties to the Client inconnection with the Project. The Building Designer does not warrant or make any representation or guarantee to the Client as tothe quality of the services to be provided by any consultants, or the suitability of the consultants. The Client provides the BuildingDesigner with authority to act as agent of the Client in all dealings with the aforesaid consultants.

g.If the Building Designer becomes aware of any matter which will change or which has changed the scope or timing of theServices then he will give notice to the Client and the notice will contain, as far as practicable in the circumstances, full particularsof the change.

CLIENT – DESIGNER CONTRACT OF ENGAGEMENT

h.The Building Designer shall perform the Services: i. in accordance with any timeframe specified in the design and constructionprogram as detailed in this Agreement and as amended between the parties; or

ii.where no timeframe is specified, in a timely manner as would reasonably be expected of a professional provider of the Servicesto facilitate the timely and expeditious completion of the Project in co-operation with the Client or other consultants and partiesinvolved in the Project.

4.Indemnity and Limitations of Liability

a.Where the Client supplies documents including sketches, photographs, drawings, plans or concepts (Client Information) to theBuilding Designer, the Client shall indemnify and keep indemnified, the Building Designer at all times against all actions,proceedings, claims, demands, liabilities, either express or implied, whatsoever which may be taken against the Building Designerand for all costs, losses, losses of profit, damages and expenses incurred or which become payable by the Building Designer, thatresult or arise from any claim for infringement of any patent, registered design, trademark, copyright, moral rights, or any property interest of a third party which may result out of the use by the Building Designer of the materials provided by the Client which the Services are based upon.

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 maybe taken against the Building Designer or incurred or become payable by the Building Designer resulting or arising from any breachby the Client of any clause in this Agreement, or any wilful misconduct or negligent acts by the Client.

c.The Building Designer shall have no liability for the Client for or in respect of any indirect or consequential losses (includingwithout limitation loss of actual or anticipated profit or revenue, business interruption, delay costs, financing costs, holding costsand 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 withthe Services whether under the law of contract, in tort (including negligence), in equity, under statute or otherwise, is limited toamaximum amount equal to the Lump Sum Fee. This limitation does not apply in the case of willful misconduct, fraudulent orcriminal acts caused by the Building Designer.

e.The Building Designer shall be released and discharged from all past, present and future liability arising out of or in connectionwith the Services, whether under the law of contract, in tort (including negligence), in equity, under statute or otherwise, at theexpiration of 12 months from the date the Building Designer’s engagement under this Agreement concludes in accordance with thisAgreement and the Client shall not be entitled to commence any action or claim whatsoever against the Building Designer after thatdate, unless the Client has notified the Building Designer before that date.

5.Client’s Instructions and Variations

a.Where any variation in the Services is required by the Client, the Client must request such variation in writing to the BuildingDesigner.

b.The Building Designer must provide a written reply within reasonable time of receiving a notice under clause 5(a) by:I .detailingthe work required to carry out the variation;

ii.the estimated costs of the variation; and

iii.any extension of time required as a result of carrying out the variation.

The Client must reasonably grant such an extension of time and costs of the variation (if any).

c.The Building Designer may request a variation in the Services for the Services to be compliant with any applicable law. TheBuilding 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.

d.The Client must not unreasonably withhold consent to any variation requested under clause 5(c). The Client must provide awritten reply within reasonable time of receiving a notice under clause 5(c).

e.If there is a dispute arising under this clause 5, the parties must follow the dispute resolution process set out in clause 16 of thisAgreement.

f.If the price of a variation is not agreed prior to it being carried out that price includes:i. The deduction of the reasonable costs of all deletions from Services; and一.e. By the Client: i. If the Building Designer: Fail to supply the Services with reasonable care and skill, and/or一.Be in breach of any provisions of this Agreement; and/or一.Experience an Insolvency Event, ii. The addition of the total cost of all extra Services.

6. Lawsa. 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.

7. Termination NO refunds for any stage works or hourly rates. Once a stage Invoice (or hourly rated) is paid by the client, the client can not request a refund and that stage is completed.

a. For the purpose of this Agreement, “Insolvency Event” means any step taken for the winding up, dissolution or administration of the company or any step the company takes to enter into any arrangement, compromise or composition with or assignment for the benefit of its creditors or any class of them (except for the purposes of a solvent reconstruction or amalgamation).

b. By the Building Designer: i. If the Client: Fail to pay the Building Designer any amounts payable in accordance with this Agreement; and/or一. Be in breach of any provisions of this Agreement; and/or一. Experience an Insolvency Event,(Client Default), the Building Designer may give the Client a written notice requiring that the Client remedy the Client Default within 14 days.

c.If the Client fails to remedy the Client Default within 14 days of receiving the notice referred to in clause 7(b)(i) to the reasonablesatisfaction of the Building Designer, the Building Designer shall be at liberty to terminate this Agreement by giving 7 days’ notice inwriting to the Client.

d.Upon termination of this Agreement by the Building Designer, the Client shall pay all amounts due and payable in accordancewith this Agreement for the Services executed up to the date of termination of this Agreement.

(Building Designer Default), the Client may give the Building Designer a written notice requiring that the Building Designer remedy the Building Designer Default within 14 days.

f.If the Building Designer fails to remedy the Building Designer Default within 14 days of receiving the notice referred to in clause7(e)(i) to the reasonable satisfaction of the Client, the Client shall be at liberty to terminate this Agreement by giving 7 days’ noticein writing to the Building Designer.

g.Upon termination of this Agreement by the Client, the Client shall pay all amounts due and payable to the Building Designer withthis Agreement for the Services executed up to the date of termination of this Agreement.

8.Claims and Payments

a.This Clause is subject to any additional details specified in the Terms of Engagement.

b.The Building Designer may, from each Reference Date, submit a Tax invoice for payment to the Client for the value of Servicescompleted prior to the Reference Date (the “Invoice”).

c.The Invoice should include sufficient details for the Client to assess the claim including dates, times, locations, the amount of anyprevious payments by the Client to the Building Designer; the facts relied upon in support of the claim in sufficient detail to permitverification; and details of the quantification of the sums claimed then known to the Building Designer and the manner in whichsuch sums have been calculated.

d.The Client will give notice to the Building Designer that the Tax Invoice has been approved, rejected, approved in part or rejectedin part within 10 business days of receipt of the Invoice.

e.Where the Invoice has been approved in part, Payment of that part of the Invoice which is approved (if any) must be paid to theBuilding Designer within 10 days of receipt of Invoice.

f.Payment will be on account only and will not signify approval or acceptance of any Services up to that time completed.

9.Insurance

a.The Building Designer must at its own cost, hold the insurances specified in the Agreement.

b.The Building Designer shall provide current certificates of currency to the Client whenever reasonably requested in writing by theClient.

10.Goods and Services Taxation

a."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 ANew Tax System (Goods and Services Tax) Act 1999 (Cth). Capitalised expressions set out in this Clause bear the same meaningas those expressions in the GST Act.

b.Except where express provision is made to the contrary, and subject to this Clause, any amount that may be payable underthese Terms of Engagement and General Conditions is exclusive of any GST.

11.Intellectual Property Rights

a.The Client must not infringe any intellectual property rights or moral rights when supplying Client Information to the BuildingDesigner to perform the Services.

b.The Building Designer must not infringe any intellectual rights or moral rights when supplying the Services under this Agreement.

c.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.

d.The Building Designer shall be the sole and exclusive owner of all rights, title and interests to any and all intellectual propertyrights arising from the performance of this Agreement, including, but not limited to, any copyrights, patent, know-how andotherwise, whether developed by the Building Designer or the Client based on the Building Designer's intellectual property, and inaccordance with clause 14.

e.The intellectual property rights and moral rights in the Services and any documents produced by the Building Designer shall vestin the Building Designer. The Building Designer shall provide to the Client a non-transferable, non-exclusive royalty free licence touse the such information or documents for the purpose of the Project.

f.The Client shall not use or make copies of such documents in connection with any work not included in the Design Brief unlessan express licence is granted by the Building Designer. The Client is prohibited from making unauthorised amendments to thedrawings or documentation. The Client shall not be entitled to an electronic copy of the drawings and documents unless otherwiseagreed as part of the Agreement. If the Client is in breach of any obligation to make a payment to the Building Designer under thisAgreement, the Building Designer may at its absolute discretion revoke the licence referred to in Clause 11, and the Client shallthen cause to be returned to the Building Designer, all documents referred to in Clause 11, and all copies thereof.

12.Building Designer not an employee

a.The Building Designer, its officers, employees, servants and agents and any other Persons engaged by the Client in theperformance of the Services shall not by virtue of the Agreement or the performance of the Services thereby be or become in theservice or employment of the Client for any purpose and the Building Designer shall be responsible for all matters requisite asemployer or otherwise in relation to such officers, employees, servants and agents and other Persons who are so engaged.

13.Confidentiality

a.For the purpose of this Agreement: i. “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 Parties to the Agreement or in relation to the Partieswhich by its very nature is confidential but excludes any information in the public domain.

ii.“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 Consultant.

performing the Services or fulfilling the requirements of this Agreement, either by the Principal or the Consultant or those for whom the Consultant is responsible.

b.Each party to this Agreement undertakes to keep the Confidential Information disclosed by the other party secure and not todisclose it to any third party without the prior written consent of the party who provided the Confidential Information unlessdisclosure is required by law.

c.Each party to this Agreement shall ensure that any Confidential Information shall not be copied, supplied or reproduced for anypurpose other than to complete the Project.

14.Assignment

a.A party may not assign or transfer the whole or any part of its rights or obligations under this Agreement without the prior writtenconsent of the other party. The other party must not unreasonably withhold such consent.

15.Dispute Resolution

a.If any dispute or difference arises between the Building Designer and the Client in connection with this Agreement, either the Building Designer or the Client shall give the other a written notice of dispute identifying and providing details of the dispute.

b.Within 7 days of service of the written notice of dispute, the Building Designer and the Client shall confer at least once to resolve the dispute.

c.If the dispute is not resolved within 14 days of service of the written notice of dispute, then the Agreement can be terminated.

b.The Building Designer shall, if the Services have not been completed, continue If willing without delay to provide the Services in accordance with this Agreement if the Client so requires or directs.e.The Client shall continue to pay to the Building Designer any fees for the work which are not subject of a dispute.

16.Governing law

a.This Agreement shall be governed by the laws in force in the State of where the Services are provided and the partiesirrevocably submit to the non-exclusive jurisdiction of the courts of that State.

17.Force Majeure

a.The Building Designer shall be relieved from liability under or in connection with this Agreement to the extent that any failure toperform any of its obligations has been caused or contributed to by a force majeure event or circumstances including acts of God,war, civil disturbance, government action, strikes, lock-outs or labour disputes, computer virus or any other event or circumstancebeyond the reasonable control of the Building Designer and provided the Building Designer provides in writing to the Client noticeof the event within reasonable period after event occurring.