ARCHITECTURAL CONSULTANCY AGREEMENT TERMS AND CONDITIONS

Transcription

1 TERMS AND CONDITIONS K20 ARCHITECTURE 325 COVENTRY STREET SOUTH MELBOURNE VICTORIA, 3205 AUSTRALIA t: f: e: melboffice@k20architecture.com K2O.AU PTY LTD t/a K20 ARCHITECTURE ABN ACN

2 Contents 01 CONSULTANCY CONDITIONS ROLE OF K20 ARCHITECTURE ROLE OF THE CLIENT TOTAL PROJECT COST PAYMENT TO K20 ARCHITECTURE FOR SERVICES SCOPE OF LIABILITY COPYRIGHT AND USE OF DOCUMENTS DISPUTE DETERMINATION TERMINATION OF SERVICES GENERAL MATTERS ADDITIONAL SPECIALIST CONSULTANTS GOODS & SERVICES TAX STATUTORY REQUIREMENTS ACCOUNTS SIGN-OFF CHANGES TO THE CONTRACT MORAL RIGHTS ELECTRONIC DATA TRANSFER METHOD OF PAYMENT FOR CONTRACTORS ERROR SERVING OF NOTICES & GENERAL CORRESPONDENCE BY DEFINITIONS... 6 Page 2 of 7

3 01 CONSULTANCY CONDITIONS 1.1 ROLE OF K20 ARCHITECTURE In performing the Services, K20 architecture shall exercise the degree of skill, care and diligence normally exercised by members of their profession performing services of a similar nature in accordance with the ethics of the architectural profession If k20 architecture is required to exercise its professional judgement between the Client and a third party with whom the Client has a contract, it shall do so independently and as required by the terms of that contract K20 architecture shall use all reasonable efforts to inform itself of the Client's requirements for the Project and for that purpose it shall consult the Client throughout the performance of the Services If k20 architecture considers that the information, documentation and other particulars made available to it by the Client are not sufficient to enable k20 architecture to provide the Services in accordance with its agreement with the Client, k20 architecture may advise the Client who shall then provide such further assistance, information or other particulars as necessary in the circumstances If k20 architecture becomes aware of any matter which will change or which has changed the scope of or the timing of the Services then it will give notice to the Client and the notice will contain as far as practicable in the circumstances, particulars of the change K20 architecture shall perform the Services in a timely manner to the extent that it is within its control to do so k20 architecture will carry out the services for the Project on the basis of information available to k20 architecture at the time when k20 architecture is carrying out the services and will not take any responsibility for, nor accept any liability for damage arising out of matters relevant to the Project that arise due to circumstances which are revealed after completion or termination of the commission K20 architecture will notify the client promptly in writing if a conflict arises and suspend the services until the conflict is removed, or the agreement is terminated, K20 architecture shall maintain registration with the Architects Registration Board of Victoria. 1.2 ROLE OF THE CLIENT The Client shall as soon as practicable make available to k20 architecture all information, documents and other particulars relating to the Client's requirements for the Project The Client shall as soon as practicable make arrangements to enable k20 architecture to enter upon the Site or other lands as necessary to enable k20 architecture to perform the Services Unless the agreement specifically provides otherwise, the Client shall as soon as practicable obtain all approvals, authorities, licenses and permits which are required from governmental, municipal or other responsible authorities for the lawful implementation and completion of the Project The Client agrees that the Services do not include any services which are properly carried out by other professions such as legal or accounting and if other such professional services are required the Client shall obtain these services at their cost The Client shall make available to k20 architecture the equipment and facilities specified in this agreement, at the agreed time and place The Client shall advise k20 architecture the name of the person appointed by the Client to act as their representative and agrees that the representative shall have the authority to act on behalf of the Client for all purposes in respect of the agreement between k20 architecture and the Client If the Client becomes aware of any matter which may change the scope or timing of the Services for the Project, then the Client will give written notice to k20 architecture The Client shall co-operate with k20 architecture and shall not interfere with or obstruct the proper performance of the Services The Client shall provide all information required by the architect to complete the services described in this Agreement 1.3 TOTAL PROJECT COST The Total Project Cost is inclusive of GST and is defined as the Cost of Works plus all other costs to the client associated with the project, including but not necessarily limited to: I. removal and relocation costs architectural, consultant and other professional fees I authority fees and charges IV. legal fees V. landscaping VI. loose furniture, fittings and equipment V finance charges, marketing and promotional costs The architect is not responsible for monitoring or controlling the Total Project Cost for the client. 1.4 PAYMENT TO K20 ARCHITECTURE FOR SERVICES In consideration of the promise by k20 architecture to perform the Services, the Client promises to pay k20 architecture the Fee and the Reimbursable Expenses as provided in the agreement, at the times and in the manner agreed At or about the end of each agreed payment period which unless otherwise agreed shall be monthly, k20 architecture will give to the Client an account for the Services performed, for reimbursable expenses incurred and for any applicable GST amount for the period. The Client shall pay the full amount owing in respect of each account within fourteen (14) days of issue of the account K20 architecture shall be entitled to and may by notice in writing to the Client terminate the express licence referred to in Clause 2.8 upon failure of the Client to make any payment on the due date, and upon request by k20 architecture the Client will return to k20 architecture all the developed drawings, specifications and other documents The Client agrees that in addition to all other rights and remedies of k20 architecture if the Client fails to pay all monies as and when due, k20 architecture shall be entitled to recover interest at the current rate payable by k20 architecture for overdraft or at such other rate as may be provided in the agreement. Interest shall be calculated from the date twenty-one (21) days after the date of the account If the Client disputes any portion of the amount of an account submitted by k20 architecture, they shall pay that portion of the account which is not in dispute and shall notify k20 architecture in writing of the reasons for disputing the account. If the parties are unable to reach agreement within seven (7) days of the Client's notice, the dispute may be determined in accordance with these Terms of Engagement. If it is resolved that some or all of the amount in dispute ought properly to have been paid, then the Client Page 3 of 7

4 shall pay the amount finally resolved together with interest in accordance with Clause If the performance of the Services is delayed beyond a reasonable period for any reason other than a breach of agreement by k20 architecture, the Client shall pay to k20 architecture a reasonable sum of money to cover the consequential costs and expenses suffered by k20 architecture as a result of the delay If the parties are unable to agree upon an appropriate additional sum, the matter shall be referred for determination in accordance with these Terms of Engagement If the engagement of k20 architecture is terminated for any reason other than a breach of agreement by k20 architecture, k20 architecture shall be entitled to pro-rata payment for the Services carried out, for the period up to the time of termination, and consequential losses incurred as a result of the termination The fee for the agreed Services has been calculated on the assumption of both parties that the Services are to be provided under circumstances normally pertaining to the carrying out of the type of project in question. The parties agree that if k20 architecture is required to perform the Services in circumstances other than those normally pertaining to such a project or if there is a change in the scope, timing or order of the services, then k20 architecture shall be entitled to additional payment of an amount which is reasonable in the circumstances If after the date of engagement of k20 architecture there is any change to the laws, by-laws, regulations or ordinances of the Commonwealth of Australia or a State or Territory of Australia or any statutory authority and that change directly or indirectly increases or decreases the costs or reimbursable expenses incurred by k20 architecture in performing the Services then the fee and the reimbursable expenses otherwise payable to k20 architecture under this agreement shall be increased or decreased accordingly. 1.5 SCOPE OF LIABILITY The liability of k20 architecture, its servants, agents or subconsultants to the Client arising out of the performance or nonperformance of the Services whether under law of contract, tort or otherwise, shall be limited to the cost of rectifying the works which are the subject of the commission The maximum liability of k20 architecture, its servants, agents or sub-consultants to the Client arising out of the performance or nonperformance of the services, whether under the law of contract, tort or otherwise, shall be the amount of the fee actually paid by the client in respect to this commission to a maximum of $300, unless otherwise provided in this agreement. For the purposes of clause 4.4.1, k20 architecture contracts on its own behalf and on behalf of its servants, agents and sub-consultants k20 architecture, its servants, agents and sub-consultants shall be deemed to have been discharged from all liability whatsoever in respect of the Services, whether under the law of contract, tort or otherwise, at the expiration of one year from the completion of the Services unless otherwise provided in the agreement, and the Client (and persons claiming through or under the Client) shall not be entitled to commence any action or claim whatsoever against k20 architecture, its servants, agents or sub-consultants in respect of the Services after that date. For the purposes of Clause 4.4.2, k20 architecture contracts on its own behalf and on behalf of its servants, agents and sub-consultants If the Services include giving to the Client an estimate of the likely costs for the project, k20 architecture warrants only that it will exercise reasonable skill, care and diligence in the preparation of its professional opinion of those costs k20 architecture 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 the law or specifically provided for in this agreement. If apart from this Clause any warranty would be implied whether by law, custom or otherwise, that warranty is to the full extent permitted by law hereby excluded. Nothing herein contained 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 any goods or services pursuant to this Agreement of all or any of 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 The Client will indemnify and hold k20 architecture harmless against all claims, costs and demand by third parties in respect of the services concerned The presence or provision of services by k20 architecture s representatives or personnel at any site at which the Project is being carried out, does not constitute acceptance of responsibility or liability by k20 architecture for the performance of the Project by any other party (including the Client and its consultants and contractors) and those other parties are not relieved of their obligations, duties and responsibilities by the presence of k20 architecture s representatives or personnel on site k20 architecture shall be deemed to have been discharged from all liability in respect of the Consultancy Services, whether under the law of contract or tort on the expiration of, unless otherwise agreed, six (6) years from either Practical Completion or the termination of the Consultancy Services; whichever is the earlier date The provisions of clauses and are subject always to the provisions of Part V of the Trade Practices Act 1974 (as amended) or any other law which cannot be excluded, restricted or modified by Agreement. 1.6 COPYRIGHT AND USE OF DOCUMENTS Copyright in all drawings, reports, specifications, bills of quantities, calculations, computer programs and other documents provided by k20 architecture in connection with the Project shall remain vested in k20 architecture The Client shall have an express and revokable licence to use the documents referred to in Clause & for the purpose of completing the Project; however, the Client shall not use nor make copies of such documents in connection with any work other than work comprised in the Project unless approval is given in advance by k20 architecture K20 architecture may with the consent of the Client publish either alone or in conjunction with others, articles, photographs and other illustrations relating to the Project If during the course of providing the Services, k20 architecture develops, discovers or first reduces to practice a concept, product or process which is capable of being patented, then such concept, product or process shall be and remain the property of k20 architecture and the Client shall not use, infringe or otherwise appropriate the same without first obtaining the written consent of k20 architecture If during the course of providing the Services, k20 architecture discovers, develops or first reduces to practice a concept, product or process capable of being patented, then the Client shall be entitled to a royalty free licence to use the same during the life of the works comprising the Project. 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5 1.6.6 The Architect is entitled to terminate under determination the express licence if the Client breaches its obligations under this Agreement. I. The client agrees that for all electronic data transfers: The architect may issue data electronically to it and to others involved in the project; I The architect is not responsible for the accuracy, completeness or any contamination of electronically transmitted data: IV. The cost of electronic data preparation and file conversion is to be reimbursed by the client 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 Provision and supply of computer aided design (CAD) files for drawings and documentation prepared by any sub consultants engaged by K20 architecture are excluded from the scope of services 1.7 DISPUTE DETERMINATION In the event of any dispute or difference of any nature whatsoever arising between the Client and the Architect, they shall confer at least once to attempt to resolve such dispute or difference and if it cannot be resolved within 30 days of one party first sending to the other written notice by certified mail of such dispute or difference, the parties dispute or difference shall be and is hereby submitted to arbitration in accordance with and subject to the Institute of Arbitrators Australia Rules for the Conduct of Commercial Arbitrations. 1.8 TERMINATION OF SERVICES The Client may by notice in writing served on k20 architecture terminate the Client's obligations under their agreement with k20 architecture: I. If k20 architecture is in breach of the terms of the agreement and the breach has not been remedied within twenty-eight (28) days (or longer period as the Client may allow) of the service by the Client on k20 architecture of a notice requiring the breach to be remedied; or If the Client serves on k20 architecture a notice requiring that the agreement be terminated on a date specified in the notice being not less than sixty (60) days after the date of issue of the notice K20 architecture may by notice in writing served on the Client terminate k20 architecture s obligations under its agreement with the Client: I. If the Client is in breach of the conditions of 2.2 of these Terms of Engagement; or If the Client is in breach of the provisions of any other Part of these Terms of Engagement and the breach has not been I remedied within twenty-eight (28) days (or such longer period as k20 architecture may allow) of the service by k20 architecture on the Client of a notice requiring the breach to be remedied; or If k20 architecture serves on the Client a notice requiring that the agreement be terminated on a date specified in the notice being not less than sixty (60) days after the date of the notice. If termination under Clause 2.8 (I) or (II) occurs, the licence referred to in 2.6 of these Terms of Engagement will forthwith terminate and cease and upon request by k20 architecture the Client will return all k20 architecture s drawings, specifications and other documents Termination shall be without prejudice to any claim which either party may have against the other in respect of any breach of the terms of the agreement which occurred prior to the date of determination Either party may terminate this agreement after giving the other party 60 days notice in writing without being required to give any reason. On Termination of this agreement, unless otherwise agreed in writing: The client must: I. 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 incurred by the architect since the delivery of the notice If an insolvency event occurs in relation to the Client, K20 architecture may immediately terminate the contract by giving the client a written notice of termination. The notice of termination must state that it is given under this clause. 1.9 GENERAL MATTERS k20 architecture and the Client each binds itself and its partners, successors, executors, administrators, assigns and legal representatives to the other party to this agreement and to the partners, successors, executors, administrators, assigns and legal representatives of the other party in respect to all covenants and obligations of this agreement Neither k20 architecture nor the Client shall assign, sublet or transfer any right or obligation under the agreement without the written consent of the other party. Unless specifically stated to the contrary in any written consent to an assignment, no assignment shall release or discharge the assignor from any obligation under the agreement Nothing contained in this Clause shall prevent k20 architecture from employing within this fee such persons or companies as it may deem appropriate to assist it in the performance of the agreement If circumstances arise which require the services of a specialist or expertise outside the field of k20 architecture, k20 architecture may with the prior approval of the Client engage the appropriate consultant. The consultant shall be engaged at the Client's expense and on their behalf. The Client's approval shall not be unreasonably withheld A notice purported to be served under this agreement shall be deemed to have been properly served if the same is in writing and is sent to the usual business address of the recipient by mail, , telegram or telex message or personal delivery for which a receipt is obtained ADDITIONAL SPECIALIST CONSULTANTS Where the architect and the client agree that additional specialist consultant services are required beyond those specified in this agreement, such additional consultants may be: I. engaged directly and paid by the client, Page 5 of 7

6 engaged directly and paid by the architect, in which case the associated fees will be charged in addition to the architectural fees provided for in this agreement 1.11 GOODS & SERVICES TAX Any amount referred to in this agreement which is relevant in determining a payment to be made by one of the parties to the other party is exclusive of GST to the extent that GST is not otherwise expressly included If GST is levied or imposed on or in respect of any supply made under or in connection with this agreement then, the Client must, in relation to the consideration provided (or deemed to be provided) for that supply, pay the GST Amount to k20 architecture at the same time at which the consideration for the supply is payable (or deemed payable) STATUTORY REQUIREMENTS The Client acknowledges that k20 architecture shall not be held liable for any loss cost or expense incurred by the Client, including the Client s obligation to pay k20 architecture s fee, as a result of the Conditional acceptance or rejection of the proposal (including all documentation prepared as part of the proposal) prepared by the Architect by any Responsible Authority or Planning Authority. This is not limited to councils and shall include other tribunal or court K20 architecture shall endeavour to design a concept that complies with the Planning Scheme and incorporate those preliminary discussions and directions given by the Responsible authority in the preliminary design phase of the project Should the project require amendments, revisions or any alterations as a result of the requirements given by the Responsible authority then the Client acknowledges that k20 architecture shall be reimbursed on a time charge & disbursement basis spent in association with preparing all necessary documentation to complete the application and determine the requirements for. Before commencement this shall be approved in writing by either the architect or client ACCOUNTS Accounts are sent monthly as the Architectural Services progress and are payable within fourteen (14) working days after the date of invoice Without prior notification and agreement with K20 Architecture, late payments shall attract 10% interest calculated daily SIGN-OFF The Client in signing-off on this contract agreement the Client undertakes that they have reviewed the contract conditions, costs and scope of services Sign off is acceptance of the conditions, scope of services and fee and fee schedule outlined within this agreement and is approval for k20 architecture to commence and continue with the consultancy With instruction from the Client to proceed with services and should there be no comment to the matters outlined in this agreement, after (14) fourteen days from issue of this agreement it shall be deemed the terms, scope of services, fee and conditions of this agreement have been accepted by the Client CHANGES TO THE CONTRACT The agreed services may be changed by mutual agreement in writing from all parties to the contract 1.16 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 form of attribution must be as agreed by both parties, and 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 ELECTRONIC DATA TRANSFER The client agrees that: I. the architect may issue data electronically to it and to others involved in the project; the architect is not responsible for the accuracy, completeness or any contamination of electronically transmitted data; I the cost of electronic data preparation and file conversion to others, not engaged by k20 Architecture under this contract, is to be reimbursed by the client METHOD OF PAYMENT FOR CONTRACTORS ERROR If the architect is appointed by the client to administer or provide advice for a construction contract then in the event that the construction Contractor appointed by the Client makes an error which the Client accepts and requires an amendment to the building permit or the planning permit the client agrees to the following points: I. K20 architecture shall charge an additional fee to be paid by the Contractor K20 architecture shall issue to the construction Superintendent the additional fee. I The Superintendent shall issue a credit to the construction contract in favor to the client to the amount equal to K20 architecture s additional fee IV. The client will then pay K20 architecture the fee resulting from the construction Contractor s error SERVING OF NOTICES & GENERAL CORRESPONDENCE BY Both the Client and the K20 architecture agree that correspondences are acceptable as a method for serving of notices and general communication If a party sends the notice by , and does not receive a reply from the recipient, or a notice by return confirming delivery or a read notice from the recipient s system, the notice is deemed to have been delivered on the next working day. However, if the notice is sent by after 5.00pm (in the time zone of the site) on a working day, the message is also deemed to have been delivered on the next working day DEFINITIONS Unless the context otherwise requires, then in construing the agreement: Agreement means the entire contractual agreement between the Client and k20 architecture. K20 architecture means the trading name of particular company of K20.AU pty ltd. GST means the tax imposed under a New Tax System (Goods & Services Tax) Act 1999 and includes any goods and services or value added tax or any tax or charge of a like nature levied or Page 6 of 7

7 GST Amount "Project" "The Services" imposed in relation to a supply (which includes any deemed supply) of any goods, property, services or any other thing and GST Law means that Act. is the amount calculated by multiplying the consideration provided (or deemed to be provided) for the relevant supply by the rate or rates at which that GST is levied or imposed (if it is imposed at all). means the work described in the agreement in respect of which the Client has engaged k20 architecture to provide the Services. means those professional services included in the agreement between the Client and k20 architecture and defined in correspondence or the Engagement Form or in the Schedule hereto. Insolvency event is defined as: I. in relation to a person, means anything that indicates that the person is or will become unable to pay their debts as and when they become due or payable including: a) the person is declared, made or becomes insolvent b) an execution or distress process is levied against the person s assets which include the person s income c) the person enters into a deed of company arrangement with the person s creditors d) the person fails to comply with a bankruptcy notice or a statutory demand served under the corporations law a provisional liquidator, liquidator, receiver, receiver and manager, administrator, scheme administrator, controller or other such administrator is appointed (whether by a court, creditor or otherwise) to the person or over the person s assets a trustee in bankruptcy, interim receiver, controlling trustee or other such administrator is appointed (whether by a court, creditor or otherwise) to the person or over the person s assets. Page 7 of 7