Terms and Conditions

1. Design Services

(a) The Building Designer shall supply the Design Services using the reasonable skill and care of an ordinary building designer in the circumstances of the Building Designer at the time the Design Services are supplied.

(b) The Client shall ensure that all requests, decisions and instructions required by the Building Designer from the Client are supplied accurately and within 7 days so as not to cause delay to the Design Services provided under this Agreement.

2. The Works

(a) The Client shall ensure that, prior to commencement of any on-site building work to which the Design Services relate, a building permit in relation to the Works has been issued and is in force under the Building Act 1993 (Vic).

(b) The Building Designer does not warrant or represent to the Client that the design produced pursuant to this Agreement can be constructed for the Estimated Total Construction Cost. The Client will obtain its own independent advice as to the estimated and actual costs of constructing the design produced pursuant to this Agreement.

3. Disbursements

Common fees for purchasing necessary information from authorities, travel mileage, printing, and other common miscellaneous expenses are included in the quote, or the hourly rate, if applicable.

The Client shall reimburse the Building Designer for costs incurred by authorities beyond the Building Designer’s control. A written explanation seeking approval will be sent to the client prior to such payment.

4. Moral Rights, Copyright and Client’s License to Use the Documents

(a) The Client must not infringe any Intellectual Property Rights when suppling Client Information.

(b) The Building Designer must not infringe any Intellectual Property rights when supplying the Design 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) Copyright in the Documents prepared by the Building Designer in accordance with this Agreement, is owned by the Building Designer.

(e) The Client is granted an irrevocable license to only use the Documents prepared by the Building Designer to produce the Works for which they are intended for, at the site to which the design relates.

5. Unauthorised Use of Building Designer’s Building Practitioner Number

The Client shall not be permitted to use the Building Designer’s Registered Building Practitioner’s Number for any reason whatsoever without the express written consent of the Building Designer describing the exact purpose for which the Building Practitioner’s Number is to be used.

6. Variations in Design Services

Where any variation in Design Services is required by the Client or the Design Services are varied due to causes beyond the control of the Building Designer, the Building Designer must give the Client written notice outlining the variation. The scope of the Design Services cannot be varied except by written notice.

Cost will calculate as the following:

Either: Fix lump sum – A portion of reworking of the contract; or,

Hourly Rate – Architect $250 + GST per hour; Drafting $140 + GST per hour; Admin $90 per hour + GST,

whichever lower.

7. Termination of Agreement

(a) By the Building Designer

(i) Should the Client:

(1) fail to pay the Building Designer any amounts payable in accordance with this Agreement; and/or

(2) be in breach of any provisions of this Agreement; and/or

(3) experience an Insolvency Event,

(a “Client Default”), the Building Designer may give the Client a written notice requiring that the Client remedy the Client Default within 7 days.

(ii) If the Client fails to remedy the Client Default within 7 days of receiving the notice referred to in clause 18(a)(i) to the reasonable satisfaction of the Building Designer, the Building Designer, shall be at liberty to terminate this Agreement by giving 7 days’ notice in writing to the Client.

(iii) Upon termination of this Agreement by the Building Designer, the Client shall pay all amounts payable in accordance with this Agreement for the Design Services executed up to the date of termination of this Agreement, together with an amount for loss of an expectation of a profit in contemplation of completing the Design Services

(b) By the Client

(i) Should the Building Designer

(1) fail to supply the Design Services with reasonable care and skill, and/or

(2) be in breach of any provision of this Agreement; and/or

(3) experience an Insolvency Event,

(a “Building Designer Default”), the Client may give the Building Designer a written notice requiring that the Building Designer remedy the Building Designer Default within 7 days.

(ii) If the Building Designer fails to remedy the Building Designer Default within 7 days of receiving the notice referred to in clause 18(b)(i) to the reasonable satisfaction of the Client, the Client shall be at liberty to terminate this Agreement by giving 7 days’ notice in writing to the Building Designer.

(iii) Upon termination of this Agreement by the Client, the Client shall pay all unpaid amounts due and payable to the Building Designer in accordance with this Agreement for the Design Services executed up to the date of termination of this Agreement.

8. Dispute Resolution Process

(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 14 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 21 days of service of the written notice of dispute, and the amount in dispute is greater than $10,000, then the dispute must be referred to mediation. If the parties cannot agree on the mediator then a mediator shall be selected by the President of the Victorian Chapter of Resolution Institute.

(d) The parties must pay the mediator’s remuneration in equal shares. The Resolution Institute Mediation Rules, as amended and updated from time to time, shall apply to the mediation.

9. Governing Law

The laws in force in Victoria govern this Agreement