design consultancy terms and conditions

1.              Definitions

1.1            In the Contract, unless inconsistent with the context or subject matter:

(a) Approvals means certificates, licences, accreditations, clearances, authorisations, consents, permits, approvals, determinations and permissions from any Authority and any related fees and charges;

(b) Background IP of a Party means all Intellectual Property Rights which are made available by a Party in connection with the Contract which are in existence at the date of the Contract or brought into existence after the date of the Contract other than in connection with the Contract.

(c) Business Day means a day that is not a Saturday, Sunday or any other day which is a public holiday or a bank holiday in the place where an act is to be performed or a payment is to be made;

(d) Claim includes any claim, action, demand, proceeding, suit, defence or set-off, however arising including under the Contract, at law (including a breach of the Contract), under statute, in equity, in tort (including for negligence), in quasi-contract, for unjust enrichment and to the extent permitted by law pursuant to any other principle of law (including without limitation any claim for an extension of time, Variation or other adjustment to the Price);

(e)  Commencement Time means the time stated in the Reference Schedule by which the Supplier is required to commence performing its obligations under the Contract (or where no time is stated, promptly after the date of the Contract;

(f)  Completion means the stage at which:

(i) each and every part of the Services has been carried out and completed in accordance with the Contract, except for minor omissions which do not reasonably affect the benefit to the Principal of the Services or prevent the Principal from using the Deliverables for the purpose or purposes stated in the Contract;

(ii) all Deliverables have been provided to the Principal in accordance with the Contract; and

(iii) other obligations of the Supplier which are stated in the Contract to be a requirement of Completion, or which are otherwise required to be undertaken prior to Completion have been completed;

(g) Completion Time means the time (if any) stated in the Reference Schedule by which the Supplier is required to achieve Completion as extended (if at all) pursuant to the Contract;

(h) Confidential Information means documents and information provided or made available by one Party (Discloser) to the other (Disclosee) in connection with the Contract which are of their nature confidential or which the Discloser has identified to the Disclosee as being confidential, but does not include documents and information which are in the public domain other than through a breach of clause 20;

(i)  Contract means this document and all schedules attached to this document;

(j)  Design Documents means the drawings, specifications and other information, samples, models, patterns and the like (if any) required by the Contract and created (including by the Supplier) as part of the Services;

(k) Deliverables means those records, reports, designs, specifications, certificates and other documents, whether electronic documents or hard copy format) required by the Contract to be handed over to the Principal by the Supplier (and all information advice, designs, calculations and recommendations in those documents);

(l) Discloser and Disclosee have the meanings given in clause 1.1(h);

(m) Exceptional Circumstances means disclosure:

(i) for the purpose of performing the Contract;

(ii) with the other Party’s consent;

(iii) to a professional adviser, banker, financier or auditor if that person is obliged to keep the information disclosed confidential;

(iv) to any of its Personnel who are bound to keep the information confidential and to who it is necessary to disclose the information;

(v) to comply with the law or a requirement of an authority (including a stock exchange); and

(vi) to the extent necessary to enforce its rights or defend a Claim under the Contract.

(n) General Conditions means these general conditions;

(o) GST means GST as that term is defined in the GST Law, and any interest, penalties, fines or expenses relating to such GST;

(p) GST Law means the A New Tax System (Goods and Services Tax) Act 1999 and/or associated Commonwealth legislation, regulations and publicly available rulings;

(q) Insolvency Event in respect of a Party, means the Party:

(i) becomes insolvent or bankrupt, or being a company goes into liquidation, or takes or has instituted against it any action or proceedings which has as an object or may result in bankruptcy or liquidation; or

(ii) enters into a debt agreement, a deed of assignment or a deed of arrangement under the Bankruptcy Act 1966 (Cth), or, being a company, enters into a deed of company arrangement with its creditors, or an administrator or controller is appointed; or

(iii) has a receiver or a receiver and manager appointed or a mortgagee goes into possession of any of its assets;

(r) Intellectual Property Rights means copyright, patents and all rights in relation to inventions, registered and unregistered trademarks (including service marks), registered designs, drawings, circuit layouts and all other rights resulting from intellectual activity in the construction, project management, industrial, scientific, literary or artistic fields;

(s) Party or Parties means one or both of the Principal and the Supplier as the context requires;

(t) Personnel includes the officers, employees, agents, representatives, consultants, subconsultants, suppliers, contractors and subcontractors of a Party and any other person or entity for whom that Party is vicariously liable but in respect of the Principal, does not include the Supplier;

(u) Price means the amount payable for the provision of Services as determined in accordance with the proposal;

(v) Principal means the entity identified as the Principal on page 5 of this Contract;

(w) Principal Supplied Information means any and all reports, maps, data, plans, drawings, specifications, diagrams or other information made available by or on behalf of the Principal in connection with the Services whether such information is made available before or after the date of the Contract as set out in the Reference Schedule;

(x) Project IP means the Intellectual Property Rights in the Deliverables and all other materials, documents or data created in the performance of the Supplier's obligations under the Contract;

(y) Reference Schedule means the schedule of that name included in this Contract;

(z) Services means the services to be provided or the work to be carried out by the Supplier as described in the scope;

(aa) Site means the site or sites made available by the Principal to the Supplier for the purpose of the Supplier carrying out its obligations under the Contract;

(bb) Substantial Breach includes:

(i) a failure to pay the Supplier an amount which is due and payable under the Contract within the time required by the Contract;

(ii) a failure to remedy a breach of a warranty given or representation made within 10 Business Days after being given a written notice to do so;

(iii) a failure to remedy any breach of an obligation under the Contract within 10 Business Days after being given a written notice to do so; or

(iv) a breach that is incapable of remedy of an obligation under, or warranty given or representation made in, the Contract;

(cc) Supplier means the person or entity identified as the Supplier on page 5 of this Contract;

(dd) Variation means any material increase, decrease or change to the Services or the Supplier’s obligations under the Contract;

(ee)  Wilful Misconduct means an intentional act or omission by or on behalf of a Party committed with reckless disregard for its foreseeable and harmful consequences in circumstances where the breaching Party knows or ought to know that those consequences would likely result from the act or omission but which is not due to an honest mistake oversight, error of judgement, accident or negligence.

2. INTERPRETATION

2.1 (Headings) Headings are for reference purposes only and must not be used in interpretation;

2.2 (No limitation) The words 'include', 'includes' and 'including' are not words of limitation.  Where the Contract provides that the Principal 'may' do something the Principal is not obliged to do that thing and is not prevented from doing any other thing;

2.3 (Grammatical forms) Where any word or phrase is given a defined meaning any other part of speech or other grammatical form concerning the word or phrase has a corresponding meaning. Words importing the singular number include the plural number and words importing the plural number include the singular number.

2.4 (Law) A reference to 'law' includes all:

(a) legislation (including subordinate legislation), local laws, by-laws, orders, ordinances, awards, requirements and proclamations of a local government authority, the State of Queensland, the Commonwealth or other Authority having jurisdiction and any related fees and charges; and

(b) certificates, licenses, accreditations, clearances, authorisations, Approvals, consents, and permits and any related fees and charges,

which are applicable to the Supplier or the Contract or which are otherwise in force at any place where an obligation under the Contract is carried out and a reference to a statute includes all regulations and subordinate legislation and amendments

2.5 (Other references) A reference to:

(a) a person includes any other legal entity and a reference to a legal entity includes a person;

(b) a clause is to a clause in the Contract unless expressly stated otherwise;

(c) writing includes any mode of representing or reproducing words in tangible and permanently visible form, and includes email and facsimile;

(d) a monetary amount is a reference to an Australian currency amount.

2.6 (Time) References to time are to local time in Queensland. Where time is to be reckoned from a day or event, the day or the day of the event must be excluded. If any time period specified in the Contract expires on a day which is not a Business Day, the period shall expire at the end of the next Business Day. A reference to a day, week or month means a calendar day, week or month;

2.7 (Contra proferentem) The contra proferentem rule and other rules of construction will not apply to disadvantage a Party whether that Party put the clause forward, was responsible for drafting all or part of it or would otherwise benefit from it.

2.8 (Severance) If a provision of the Contract is void or unenforceable it must be severed from the Contract and the provisions that are not void or unenforceable are unaffected by the severance.

3.              General Provisions

3.1 (Joint and several obligations) An obligation of two or more Parties binds them jointly and each of them severally. An obligation incurred in favour of two or more Parties is enforceable by them severally;

3.2 (Governing law) This Contract is governed by the law of Queensland and the law of the Commonwealth of Australia in force in Queensland. The Parties submit to the jurisdiction of the Courts of Queensland, relevant Federal Courts and Courts competent to hear appeals from them.

3.3 (Binding on successor) This Contract shall be for the benefit of and binding upon the Parties and their heirs, executors, successors and permitted assigns.

3.4 (Further assurance) The Parties must execute and deliver all documents and must do all things as are necessary for the complete performance of their respective obligations under the Contract.

3.5 (Service of notices) A notice or other communication shall be deemed to have been given and received upon the earlier of actual receipt, or delivery to a Party's representative at the address or email address stated in the Reference Schedule or as last notified in writing by the receiving Party, but a notice or communication sent only by email shall not be deemed to have been given and received if:

(a) the sender receives a notification from the email system of the sender or the intended recipient which indicates that the email cannot be read by the intended recipient; or

(b) the intended recipient demonstrates that the notice or communication could not be legibly displayed by the intended recipient's email system at that time.

3.6 (Waiver) No waiver by a Party of a provision of the Contract is binding unless made in writing. Any waiver is limited to the particular instance and does not affect the subsequent enforceability of the provision.

3.7 (Cumulative rights and obligations) The rights and remedies of a Party provided in the Contract are in addition to the rights or remedies conferred on the Party elsewhere in the Contract, at law or in equity.  Compliance with a clause of the Contract will not relieve a Party of any other obligation under the Contract, at law or in equity.

3.8 (Counterparts) This Contract may be executed in any number of counterparts and when executed communication of the fact of execution to the other Party may be made by sending evidence of execution by fax or email.

3.9 (Current versions) Except to the extent otherwise provided in the Contract, where the Contract includes or incorporates by reference any standard, plan, requirement, code, guideline, policy, standard drawing or standard specification then a Party must comply with the version of that standard, plan, requirement, code, guideline, policy, standard drawing or standard specification which is current as at the date of the Contract.

3.10 (Clauses to survive termination) In addition to any other clauses which may be found to survive termination, clauses 16, 19.3, 20, 21 and 23 survive the expiration or earlier termination of the Contract.

4.              CONTRACT

4.1 (Documents comprising Contract) The Contract comprises:

(a) the Reference Schedule;

(b) these General Conditions; and

(c) Schedule 1 – Scope and Price.

4.2 (Final agreement) The Contract constitutes the entire, final and concluded agreement between the Parties as to its subject matter. It supersedes all prior representations, agreements, statements and understandings between the Supplier and the Principal (whether oral or in writing).

4.3 (Order of precedence) If there is any ambiguity, inconsistency, conflict or discrepancy between any of the documents listed in clause 4.1, then the documents will take precedence in the order set out in clause 4.1 with the Reference Schedule being the highest in the order.

5.              PERFORMANCE AND PAYMENT

5.1 (Performance) The Supplier must provide the Services and otherwise comply with its other obligations under the Contract in accordance with the Contract.

5.2 (Payment) The Principal must pay the Supplier the Price for Services provided in accordance with the Contract.

6.              Representations

6.1 (Supplier representations) The Supplier represents that:

(a)(standard) the Supplier will perform the Services to the standard of skill, care and diligence expected of a skilled and competent professional engaged in the business of providing services or work similar to the Services; and

(b) (Deliverables) the Deliverables will comply with the requirements of the Contract and applicable law.

6.2 (Claims) The Supplier shall not be liable upon any Claim by the Principal if a contractor carrying out the construction of the design fails to comply strictly with the Design Documents or any other instruction or qualification provided by the Supplier.

7.              Principal Supplied Information

7.1 (Provision) The Principal must provide all the Principal Supplied Information to the Supplier at least 5 Business Days before the Commencement Time.

7.2 (Intellectual Property Rights) The Principal warrants and represents that the Principal Supplied Information will not infringe the Intellectual Property Rights of a third party.

7.3 (Reliance) The Principal acknowledges and agrees that the Supplier has relied upon the Principal Supplied Information and will continue to rely upon the Principal Supplied Information to carry out and complete the Services.

7.4 (Warranty) The Principal warrants and represents that:

(a) the Principal Supplied Information is suitable, accurate, appropriate, adequate and complete to enable the Supplier to complete the Services in accordance with the Contract; and

(b) there is no other information within the Principal’s knowledge that could affect the performance of the Services.

7.5 (Discovery of issue) The Supplier shall but is not obliged to notify the Principal if it discovers any error, ambiguity, or discrepancy in or between, or omission from, any document describing the Services, any Principal Supplied Information or any other document comprising the Contract (Document Issue). The Principal shall give the Supplier a direction as to the interpretation to be followed in the event that any such Document Issue is discovered by either Party.

7.6 (Adjustment of Price) If compliance with the Principal’s direction in clause 7.5 causes the Supplier to incur additional costs, those additional costs shall be added to the Price.

8.              SITE

8.1 (Access) The Principal will give the Supplier sufficient, but non-exclusive, access to the Site to carry out the Supplier’s obligations under the Contract.

8.2 Site specific requirements) The Supplier shall comply with the reasonable requirements of the Principal in relation to the Supplier’s access to or conduct on the Site, including those identified in the Reference Schedule.

9.              subcontracting, assignment and NOVATION

9.1 (By the Supplier) The Supplier may, with the Principal’s written consent (which must not be unreasonably withheld) subcontract, assign or novate the whole or any part of its obligations under the Contract.

9.2 (By the Principal) The Principal may assign or novate the whole or any part of its obligations under the Contract but only with the prior written consent of the Supplier.

10.           Deliverables

10.1 (Provision of copies) The Supplier shall create and provide the Principal with copies of the Deliverables at the times required by the Reference Schedule for the Principal’s review.

10.2 (Review) The Principal shall only be entitled to review each Deliverable once. The Principal must, within 5 Business Days of receipt of the Deliverables, provide its comments in relation to each Deliverable to the Supplier. If the Principal fails to provide its comments within the time required in this clause 10.2, the relevant Deliverable shall be deemed to be approved.

10.3 (Amendment of Deliverable) If necessary, and subject to compliance with the requirements of the Contract and all applicable laws, the Supplier shall amend the Deliverables in accordance with the Principal’s comments in clause 10.2. 

10.4 (Variation) A Direction to change anything in a Deliverable after the Supplier has amended the Deliverable in accordance with clause 10.3, or where the Deliverable is deemed to be approved in accordance with clause 10.2, shall constitute a Variation and will be priced in accordance with clause 12.

10.5 (Rectification of Deliverables) Where the Principal gives written notice to the Supplier specifying any defect or omission in the Services under this Contract, the Supplier shall rectify the defect or omission at its own cost where such written notice is received within one year from the Completion Time.

10.6 (Right to Rectify Deliverables) Before making any Claim against the Supplier, its servants or agents in respect of any corrective action in relation to any works as a result of defects or omissions in the Services, the Principal shall give written notice to the Supplier detailing what parts of the Services require rectification. The Principal shall give the Supplier reasonable opportunity to rectify that part of the works requiring corrective action which is no less than 10 Business Days from the date of the notice.

11.           TIMING

11.1 (Timing) Subject to clause 11.2, the Supplier shall commence its obligations under the Contract by the Commencement Time and shall perform those obligations so that all Services reach Completion by the Completion Time.

11.2 (Delay) The Supplier shall notify the Principal if the Supplier is or will be delayed in providing the Services.  Where the Supplier is delayed in reaching Completion by the Completion Time because of an act, default or omission of the Principal or the Principal's Personnel, Variations or any other cause of delay identified in the Reference Schedule or elsewhere in the Contract as entitling the Supplier to an extension of the Completion Time, the Principal shall grant a reasonable extension of the Completion Time. 

11.3 (Discretion)The Principal may grant an extension of the Completion Time for delay caused by any other cause of delay.

11.4 (Compensation) The Supplier shall be entitled to its costs reasonably incurred for every day the subject of an extension of time granted in clause 11.2, and those costs shall be added to the Price.

12.           VARIATIONS

12.1 (Entitlement to Variation) The Services to be provided by the Supplier are strictly limited to those set out in Schedule 1. A change to the Services or additional requirements to the Services directed by the Principal which are not explicitly set out in Schedule 1 will be a Variation.

12.2 (Direction for Variation) The Principal may at any time and for any reason direct a Variation by giving written notice to the Supplier. Such direction cannot be for works or services which is outside the general scope of the Contract.

12.3 (Adjustment of Price) The Price shall be adjusted for each Variation using the following order of precedence:

(a) the amount agreed by the Parties; or

(b) failing agreement, by the applicable rates, prices or margins in the Contract; or

(c) where there are no applicable rates, prices or margins, a reasonable amount.

13.           payment Claims

13.1 (Submission of payment claims) The Supplier may submit payment claims to the Principal for Services provided in accordance with the Contract at the times and for the Services stated in the Reference Schedule.

13.2 (Due date for payment) Subject to the Contract, the Principal shall pay the amount due to the Supplier including any applicable GST within 15 Business Days of receipt of the Supplier’s payment claim.

13.3 (Interest) The Supplier shall be entitled to interest at a rate of 10% per annum on any amount not paid within the timeframe required by clause 13.2.

14.           GOODS AND SERVICES TAX

14.1  (Liability for GST) If GST is imposed on any supply made pursuant to the Contract, the amount payable for the supply is to be increased by the amount of that GST.  The Party seeking payment must provide a tax invoice in the form required by the GST Law.

15.           protection of people, property and the environment

15.1 (General) The Supplier shall use reasonable endeavours to protect people and property in the performance of its obligations under the Contract.

15.2 (Rectification of damage) The Supplier shall promptly rectify any damage to any property which is caused by the negligent act or omission of the Supplier arising out of the Supplier’s performance of its obligations under the Contract.

15.3 (Cost) The Supplier’s liability to rectify any damage in clause 15.2 will be reduced to the extent that an act or omission or Wilful Misconduct of the Principal or the Principal’s Personnel caused or contributed to the damage and/or the Principal failed to act reasonably to mitigate the damage.

16.           LIMITATION OF LIABILITY

16.1 (Limit of liability) To the extent permitted by law, the aggregate liability of the Supplier to the Principal in respect of any Claim will not exceed the lesser of $50,000 or the contract Price.    

16.2 (Consequential loss) To the extent permitted by law, neither Party, shall be liable to the other for any loss of profits, loss of opportunity, loss of agreement or loss of business.

17.           INSURANCE

17.1  (Insurances to be effected and maintained) The Supplier must effect the insurances stated in the Reference Schedule and any other insurance which the Supplier considers is necessary to protect its interests. 

18.           suspension

18.1 (Principal’s right to suspend) The Principal may direct the Supplier to suspend the performance of the whole or part of the Supplier's obligations under the Contract at any time.

18.2 (Supplier’s right to suspend) The Supplier may suspend the performance of its obligations under the Contract if:

(a) the Supplier remains unpaid after the due date for payment stipulated in clause 13; or

(b) the Principal is in Substantial Breach of the Contract.

18.3  (Costs of suspension) If the Principal’s suspension is directed due to any negligent act or omission of the Supplier or its Personnel (including a breach of the Contract by the Supplier) then the Supplier shall bear the costs of the suspension. Otherwise, the Principal shall be liable for the costs which the Supplier has incurred by the Supplier by reason of the suspension.

19.           TERMINATION and default

19.1 (Termination for Convenience) The Supplier may at any time and for any reason in its absolute discretion terminate the Contract by giving 10 Business Days written notice to the Principal.  

19.2 (Default) Where a Party (‘defaulting party’) has committed a Substantial Breach, or is subject to an Insolvency Event, the other Party may suspend the performance of its obligations under the Contract by giving written notice to this effect to the defaulting party.  If the default has not been remedied within 20 Business Days after the notice of suspension is given to the defaulting party, the other Party may terminate the Contract by giving written notice to this effect.

19.3 (Payment on Termination) If the Contract is terminated by either Party, the Principal shall pay the Supplier:

(a) the amount which the Supplier is entitled to be paid under the Contract for Services provided up to and including the date of termination; and

(b) if the termination is due to the act, default or omission of the Principal, the amount of any other costs which the Supplier demonstrates it has reasonably incurred prior to the termination in the expectation of completing its obligations under the Contract.

20.           HANDLING OF INFORMATION

20.1 (Obligation of confidence) A Party must not use the other Party's Confidential Information for a purpose other than performing the Contract.  A Party may not disclose the other Party's Confidential Information to a third party other than in the Exceptional Circumstances.  

20.2 (Return of Confidential Information) The Disclosee of Confidential Information must return or destroy (at the Discloser's discretion) material containing Confidential Information when it is no longer required by the Disclosee or when otherwise directed by the Discloser, subject to any record keeping requirements at law.

20.3 (Personnel) The Parties must make every reasonable effort to ensure that its Personnel are aware of and comply with the obligations of confidentiality in this clause 20.

21.           Intellectual Property

21.1 (Background IP) Background IP of a Party shall remain the property of that Party.  The Principal grants the Supplier a revocable, royalty free, non-exclusive, non-transferable licence to use the Principal’s Background IP for the purpose of complying with the Supplier’s obligations under the Contract.  The Supplier grants the Principal revocable, royalty free, non-exclusive, non-transferable licence to use the Supplier’s Background IP for any purpose for which the Services are provided. Each Party warrants and represents to the other that the use of the Party’s Background IP will not infringe any Intellectual Property Rights of a third party.

21.2 (Project IP) Project IP vests in the Supplier and the Supplier grants the Principal a revocable, royalty free, non-exclusive, non-transferable licence to use the Supplier’s Project IP for any purpose for which the Services are provided. 

21.3                      (Indemnity) Each Party indemnifies the other in respect of breach of a warranty given or representation made in this clause 21.

22.           Dispute resolution

22.1 (Initial conference) If a Party gives written notice to the other of a dispute under the Contract, representatives of the Parties shall promptly meet to attempt to resolve the dispute. 

22.2 (Mediation) If the dispute is not resolved within 10 Business Days after the giving of the notice (or such longer period as may be agreed by the Parties) a Party may by written notice to the other Party refer the dispute for mediation in accordance with the Mediation Rules of the Resolution Institute.  The mediation must be conducted by a mediator to be appointed by agreement of the Parties or in default of agreement to be appointed by the President of the Queensland Law Society or his nominee at the request of a Party.

22.3 (Legal proceedings) If the dispute is not resolved within 30 Business Days after the appointment of the mediator any Party may take legal proceedings to resolve the dispute.

22.4 (Urgent relief) This clause 22 does not prevent any Party from taking any steps under any law out of which the Parties cannot contract or obtaining any injunctive, declaratory or other interlocutory relief from a Court which may be urgently required.

23.           Claims

23.1 The Supplier shall not be liable upon any Claim by the Principal in connection with the Contract unless the Principal has given the Principal written notice of its intention to make the Claim within 30 Business Days after the event on which the Claim is based occurred.

23.2 The Principal shall have no Claim against the Supplier after the expiration of one year from the Completion Time.