TERMS & CONDITIONS
for engagement of Davey Architecture Studio for Architectural Services
TERMS & CONDITIONS
Part 1
Suspended Services
Where the architect’s services are suspended for any reason by the client or the architect, the architect is entitled to payment of all fees and Disbursements due.
Where the architect’s services are suspended by the client, the architect is also entitled to reimbursement of any associated costs.
In either case, all other rights and entitlements of the architect continue as though the suspension had not taken place.
Part 2
Fees
Fees for the architect’s services will be on the basis of at least one of the following:
- a lump sum fee
- an hourly rate fee
- a percentage fee of the total building contract price
- if applicable, a combination of these
The agreed basis of fees is set out in the fee proposal
The fee proposal is valid for 30 days / subject to change if not proceeded with within 30 days
All fees are GST exclusive, with accounts submitted under this agreement to be tax invoices as applicable.
Additional services required by the client after this agreement is signed will be assessed at an agreed hourly rate, or as otherwise agreed in writing.
The total percentage or lump sum fee shown in the fee proposal takes precedence over any error, omission or ambiguity in the amounts allocated to individual services or invoiced at stages prior to the final invoice.
2.2 Payment of Invoices
Amounts due under an invoice must be paid within 14 days of the date of the invoice.
Amounts due under an invoice and not paid within the above period will be subject to interest at a rate of 15% per annum.
Interest will be applied pro rata on the outstanding balance by dividing the rate by 365 to obtain a daily rate and multiplying that percentage by the number of days the balance is outstanding.
The architect is entitled to suspend provision of services if any payment in relation to a properly submitted invoice is overdue.
Part 3
Intellectual Property
3.1 Copyright
The architect retains copyright in The Design. The Design means, design concepts, drawings and documents provided under this agreement.
The architect grants the client an express but revocable licence to use The Design for the project on the site for which it was intended, subject to the conditions that:
no licence is granted or implied under this agreement other than the express licence;
the licence may be revoked by the architect in writing if any invoice that the architect is entitled to submit under this agreement is overdue, in which case the licence is automatically reinstated on the architect’s receipt of all overdue amounts, and
the licence is automatically revoked by any event or action by the client or a third party that changes the client’s ownership or legal interest in the site in any way, in which case the client may request in writing the architect’s consent to reinstate the licence and such consent must not be unreasonably withheld.
On completion of all services under this agreement, and on full payment of all invoices that the architect is entitled to submit under it, including after Termination under Part 11, the licence becomes irrevocable.
3.2 Moral rights
The architect must be attributed in any Public Information about the project promulgated by, or on behalf of, the client or architect, whether the project is complete or not.
The architect must obtain any consent of the authors of the project required by the Copyright Act 1968 to enable this form of attribution.
Public Information means any information containing a 2- or 3- dimensional representation of the project, or a part of it published, exhibited or communicated to persons other than the client or architect or their representatives.
Part 4
Other Specialist Consultants
Most projects require additional specialist consultant services in support of the architectural services provided under this fee proposal agreement.
4.1 Specialist Consultant Engagement
The architect and the client agree the project will require the services of other specialist consultants. Specialist consultants to be engaged directly and paid by the client
The client will engage each such consultant on the basis that:
a) the architect is not responsible for the services provided by the specialist consultant;
b) the architect is responsible for coordination of the specialist consultant’s services, and
c) the client is to pay the specialist consultant all its fees and disbursements, but the client may seek the architect’s confirmation that the consultant services invoiced have been provided.
Part 5
Electronic Data Transfer
The client agrees that:
a) the architect may issue data electronically to it and to others involved in the project;
b) the architect is not responsible for the accuracy, completeness or any contamination of electronically transmitted data.
Part 6
Insurances
The architect must maintain:
professional indemnity insurance, not less than the value of $10,000,000.
public liability insurance, not less than the value of $10,000,000.
insurance to cover liability to employees, to statutory requirements.
6.1 Limited Liability
To the maximum extent permitted by law:
a) subject to b, c and d below, the architect’s total liability to the client under this agreement (including the performance or non-performance of the architect’s services), whether under the law of contract, in tort, in equity, under statute or otherwise, is limited to the amount of $10,000,000
b) the architect has no liability to the client in respect of any indirect, consequential or special losses, (including loss of profit, loss of business opportunity and payment of liquidated sums or damages under any other agreement);
c) the architect has no liability in respect of the architect’s services after the expiration of 3 years from the completion of the architect’s services, and
d) any of this clause is void as a result of section 68 of the Trade Practices Act 1974 (Cth), or parallel state and territory legislation, then the architect’s liability for a breach of a condition or warranty is limited to the: supplying of the relevant architect’s services again; or
payment of the cost of having the architect’s services supplied again.
Part 7
Client Obligations
The client must:
appoint the architect to act as its agent for the project as necessary for the architect to carry out the services outlined in the above fee proposal agreement;
provide all information required by the architect to complete the services described in the above fee proposal agreement;
cooperate fully with the architect to allow for efficient and satisfactory progress through all stages of the project;
pay in accordance as detailed in the above fee proposal agreement, all fees due plus the applicable GST for the services and Disbursements specified in this fee proposal agreement, and any subsequently required services or Disbursements, and pay interest on overdue accounts;
engage directly any other required specialist consultants after consultation with the architect, and pay all fees and expenses associated with their engagement;
notify the architect in writing of any details of the project required to be kept confidential.
Part 8
Architect Obligations
The architect must:
provide the services described in this fee proposal agreement with the skill and professionalism of a reasonably competent architect;
act as the client’s agent for the project and as required under the selected building contract;
assist in the coordination and integration of the work of other specialist consultants engaged for the project;
maintain accurate records and keep the client informed of progress by way of meetings, reports and other means at required stages;
notify the client promptly in writing when an instruction from the client or any other requirement changes the scope of services or requires services not provided for by this agreement;
for any required services not provided for by this agreement, provide the client with:
an estimate of fees
if a conflict arises, notify the client promptly in writing and suspend the services until the conflict is removed, or the agreement is terminated, and
maintain registration with the Architects Registration Board (or equivalent) in the state or territory where the project is located
Part 9
Excluded Services
The “Excluded Services” will be provided by the Client if required or as set out below.
The Client assumes all responsibility for the Excluded Services and waives any claims against the Consultant that may be in any way connected to the Excluded Services.
In addition the Client agrees, to the fullest extent permitted by law, to indemnify and hold the Consultant harmless from any loss, claim or cost, including reasonable solicitor’s fees and costs of defence, arising or resulting from the performance of the Excluded Services by other persons or entities and from any and all claims arising from modifications, clarifications, interpretations, adjustments or changes made to the Contract Documents to reflect changes in field or other conditions.
If the Client requests, in writing, that the Consultant provide any of the Excluded Services and if the Consultant agrees in writing to provide them, then the Client shall pay the Consultant as Additional Services as provided in Hourly Rates of this proposal
Part 10
General Conditions
Despite anything expressed or implied elsewhere in this agreement, the architect and the client agree that:
the architect is not responsible for ensuring the constructed project complies with the building contract documents, but when engaged
for architectural construction services, is required to instruct the building contractor regarding requirements of the building contract documents, according to the contract terms;
the architect gives no express or implied warranty that the project or the design is fit for the client’s purpose;
any natural materials selected for a project may change in appearance or dimension following exposure to use or climatic conditions and this is normal behaviour for such materials;
the scope of the architect’s services does not include any services in relation to asbestos, other hazardous materials, or any other site contaminant;
upon completion the client is responsible for ongoing and regular maintenance of the project, including its systems, finishes and equipment;
the applicable law of this agreement is the law of the state or territory in which the site of the project is located, unless it is outside Australia, in which case it is the law of the state or territory of the architect’s address stated in this Agreement;
nothing makes ineffective, or reduces, any protection at law from liability which the architect is entitled to in the state or territory of the applicable law;
this agreement supersedes all prior agreements relating to the architect’s services for the project, and applies to all services provided by the architect before the formal execution of this agreement.
Part 11
Dispute Resolution
If a dispute arises out of or in relation to this agreement the client and architect must continue to perform their obligations under the agreement.
When a dispute arises:
either party may deliver a notice in writing to the other party outlining the details of the dispute and requiring a meeting within seven days
of the date of the notice to make a bona fide attempt to resolve the dispute;
if the dispute is not resolved by the meeting, either party may submit the dispute to mediation by delivering to the other a written proposal of mediation;
a proposal of mediation must state the name of a mediator accredited by the Institute of Arbitrators and Mediators Australia (IAMA) in the state or territory of the law that applies, who is independent and willing to act;
if the parties do not agree on the mediator in writing within seven days after the proposal is delivered, the President of the Chapter of the IAMA in the place of the law that applies, must be requested to nominate the mediator;
the mediation must then proceed in accordance with the rules of the IAMA for mediation except that in no case will one party be required to pay more than half of the costs of mediation, and
if the parties are unable to resolve the dispute by mediation, confirmed by the mediator in writing, either party may take legal action to resolve the dispute.
Part 12
Termination
Either party may terminate this agreement after giving the other party 30 days notice in writing without being required to give any reason.
On Termination of this agreement, unless otherwise agreed in writing:
the client must:
pay the outstanding balance of all properly submitted invoices delivered prior to the notice, and
pay the architect for all services reasonably undertaken and any reimbursable expenses, reasonably incurred by the architect since the delivery of the notice, and
the architect must, on receipt of payment, issue to the client a copy of the design as it exists up to the date of termination.