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Terms & Conditions

1 . k e y  s e r v i c e  p r o v i s i o n s .

1.1    Architect’s Responsibilities
  • Perform the services agreed with the client (“you”):
    • With integrity and with reasonable professional skill, care, diligence and promptness expected of an architect engaged on projects sim- ilar to the project which the services relate and in compliance with the code of conduct; and
    • In accordance with relevant laws, standards, codes and guides
  • Only offer services within the architect’s skill and competency
  • Communicate with you reasonably promptly, respectfully and regularly
  • Provide relevant information to you in writing in relation to the services agreed to be provided and the matters set out in clause 6 and 8 of the code of con- duct
  • Confirm in writing with you the key information discussed and your instructions
  • Agree on reasonable time frames with you having regard to the nature and extent of instructions provided
  • Provide the services in accordance with the agreed time frames
  • Advise you as soon as the architect becomes reasonably aware of any delay in meeting an agreed timeframe, explain the basis for the delay and endeav our to reach an agreement on a new reasonable timeframe with you
  • Advise you to obtain specialist advice or services from a suitably qualified peson other than an architect if the architect believes it is in your interests to do so
  • Advise you as to the progress of the services, in a manner and frequency agreed with you
  • Manage cost expectations by:
    • Requesting a preliminary budget during design brief communications
    • Providing a return design brief to you before proceeding with concept design(s)
    • Notifying you of:
      • Each material matter likely to see a change including an increase in the cost, duration, or complication (buildability) of the works (“the change”); and
      • The need for you to provide clear instructions, confirmed in writing, about how the architect is to proceed based on the change
  • Comply with the architect’s obligations in relation to record keeping and your entitlement to inspect certain records as set out in the code of conduct
  • Comply with the architect’s disclosure of conflicts of interest’ obligations under the code of conduct

 

1.2 Client’s Responsibilities
  • Be prepared before initially meeting with the architect (the design brief meeting) and at every subsequent agreed meeting with the architect
  • Communicate with the architect:
    • Promptly, respectfully and regularly to avoid delay costs and main- tain momentum;
    • To agree on timeframes;
    • To provide all information, documents and directions required by the architect to perform and complete the services;
    • To fully co-operate and ensure the efficient performance of the ser- vices
    • To provide timely feedback and approval for each stage before the architect continues to the next;
      • If you become aware of being unable to comply with the preceding points t all or in accordance with agreed timeframes; and
      • If you are not happy with something
  • Manage cost expectations by:
    • Providing a reasonable preliminary budget during design brief communications;
    • Providing a carefully considered design brief; and
    • Providing clear instructions, confirmed in writing, about how you want the architect to proceed against any changes likely to see an increase in the cost, duration, or complication (buildability) of the works.
  • Enter into direct contracts with specialist consultants that are in the opinion of the architect reasonably required. These consultant contracts will include a direct responsibility for you to pay to the specialist consultants all fees and other costs agreed under those contracts
  • Allow the architect reasonable access to the project site before, during and af ter the provision of their services
  • Allow the architect to erect signage at the project site
  • Grant permission to the architect or their agent to photograph the project and use the project, and any material generated by it, for awards programs, publi cations, marketing and promotion

 

1.3 Earlier Services
  • Unless agreed in writing to the contrary, any earlier services the architect has provided or agreed to provide to you which are in any way related to the works the subject of this contract, shall also be subject to the terms and conditions of this contract


1.4    Additional Fee for Additional Services
  • The architect’s fee covers the services agreed to be performed. If you wish the architect to provide additional services, you need to agree a scope of services and a fee in accordance with this contract.


1.5    Stages
  • Unless agreed to the contrary and confirmed in writing, the services shall be provided stage by stage, as follows:
    • Concept Design
    • Developed Design
    • Development Application/Planning Permit
    • Construction Certificate Documentation
    • Construction Documentation
    • Construction Phase Services
  • If the architect considers it will be efficient or expedient to commence more than one stage of the services concurrently, or to commence specific items from subsequent stages prior to commencement of that stage, the architect must obtain your consent, which must be confirmed in writing
  • The architect must obtain your consent, which must be confirmed in writing, be fore selecting any contractor or consultant to perform work or services in relation to the project

 

2 . opinion of probable cost .

The opinion of probable cost of works:

  • is an architect’s opinion of the probable cost to you of contracting with a con tractor at arms length to construct the works the subject of the project
  • excludes such things including, but not limited to:
    • the professional fees and disbursements of all experts including the architect’s fees and disbursements
    • authority fees, taxes, levies and other charges payable to authorities;
    • finance charges; and
    • removal, relocation, living and holding costs
  • is a figure or range quoted exclusive of GST
  • is indicative only, should be considered indicative only, and will be subject to limitations
  • must include the rationale for the opinion arrived at (including methodology, assumptions, limitations and corresponding contingency consequences)
  • will vary from time to time and, depending on the status of the project, will be updated sequentially to comprise the latest of the following:
    • an initial indicative opinion of probable cost of works by the architect based on the concept design
    • any updated indicative opinion of probable cost of works by the architect as the design is developed and approved by the certifying authority
  • will be superseded, and ought not to be relied upon even on an indicative basis as and when the following occurs:
    • an estimate is provided by a professional cost consultant, such as a quantity surveyor retained by you or another party, which will be more accurate and reliable due to their expertise in estimating the cost of projects; and/or
    • a contractor’s quote for the cost of works (subject to its assumptions and limitations) has been obtained; and/or
    • the contract sum in the building contract (subject to its assumptions and limitations) is agreed between you and the contractor; and/or
    • the final adjusted contract price (including GST) in accordance with any building contract, including the value of any works or items which are outside the scope of the building contract but have a connection with the subject matter of the architect’s services or with the project generally, is known.
  •  the following limitations shall apply:
    • an architect’s opinion of probably cost of works represents the architect’s best judgement as a design professional as opposed to a professional cost consultant, such as a quantity surveyor;
    • the opinion of probable cost of works is supplied only for your guidance and any reliance is at your own risk;
    • an architect has no control over such things as: the particular impact on the cost of your project in the event of difficult site and building conditions; the cost of labour and materials; the availability of suitably reputable contractors; competitive bidding; and market conditions generally;
    • the opinion of probable cost of works is based on the archtiect’s recent experience and adjusted to accommodate factors known to the archi tect at the time it is prepared
    • the architect does not guarantee the accuracy of the opinion of prob able cost of works as compared to actual building quotes or cost to you; and
    • if you desire a higher level of confidence in predicting the cost of works than that provided in the architect’s opinion of probable cost of works, you should retain as early as possible the services of a professional cost consultant, such as a quantity surveyor, for this purpose.

 

3. variations

3.1    Agreement to Vary/Change
  • You and the architect may vary/change the scope of the services only by agreement confirmed in writing by the parties
  • The following procedure is to apply to any variations or changes of the kind de scribed under this clause:
    • You must direct the variation (including a direction to provide services which in the architect’s opinion amounts to a variation) orally or in writ ing
    • The architect is to confirm the terms of the variation in writing including:
      • The scope of the variation
      • The fee, hourly rates to apply, or other proposed mechanism for valuing the variation; and
      • Whether part of the previously agreed upon services have been replaced and is no longer relevant
  • If you do not confirm the terms of the variation by agreement in writing (or any amended terms satisfactory to both parties) within five business days of receipt of those terms, the project may be delayed


3.2 Re-Design Variations
  • The architect is entitled to a re-design variation if the architect is directed by you to depart at any time from:
    • The concept design options; and/or
    • The scope of the design or works agreed at a previous stage
  • If there is a re-design variation, the architect must promptly provide a written notice to you:
    • Identifying the nature of the re-design variation; and
    • Either:
      • Advising you of the fees for the re-design variation; or
      • If the fees are not reasonably capable of being determined in advance, the architect must propose a method for immediately valuing the re-design variation once it is completed
  • If you do not within five business days of receipt of that notice confirm agreement in writing of both the scope of and the fee for the re-design variation (including where relevant the method for determining the re-design variation), the project may be delayed

 

4 . p a y m e n t .

4.1 The Architect - Tax Invoices Generally

The architect is not entitled to payment for their fees or disbursements incurred unless they provide a tax invoice to you setting out:

  1. the total value of the services performed; and
  2. the disbursements incurred by by the architect in respect of the project, less the payment received to date (including any administration fee)


4.2 Tax Invoice for Deposit
  • The architect may provide a tax invoice to you for any deposit
    • On or after the date of this contract
    • Regardless of whether the architect has performed any services
  • The deposit will be accounted for in the tax invoice the architect provides at the completion of the services or the earlier termination of this contract


4.3 Payment Due to the Architect
  • You, as the client must pay the architect:
    • The amount of each tax invoice within the time provided for; and
    • Interest at the rate set out in any overdue payments
  • Acknowledge that the architect may deduct any overdue payments from and deposit held by the architect

 

5 . i n s u r a n c e .

  • The architect must for the architectural services being provided or to be provided to you:
    • Maintain an appropriate policy of professional indemnity insurance;
    • Provide you with information relating to that insurance maintained;
    • Maintain public liability insurance (as is available upon reasonable commercial terms); and
    • Maintain workers’ compensation insurance (employers liability insurance) (as required by law).


6 . c o p y r i g h t .

  • All copyrights coming into existence in connection with the performance of the services vest in and are owned by the architect
  • The architect grants you a revocable, non-exclusive, non-transferable licence to use the documents created by the architect once only for the construction of the project at the nominated project address
  • Attribution for the design must be made to the architect in any use
  • The architect (or any nominee) may, in respect of the project as the architect considers desirable:
    • After giving reasonable notice, take such project records, including photographic records; and
    • Publish such materials
  • The services exclude the provision of any documents in digital formats other than portable document format (PDF)
  • If there is any dispute in relation to copyright, the provisions of this contract must be followed.

 

7 . c o n s u m e r  l a w ,  r e l e a s e  & l i m i t  o f  l i a b i l i t y .

  • Subject to this section and to the extent permitted by law, you release, hold harmless and indemnify the architect for, from and against any actual or alleged, direct or indirect, costs, losses, damages, fines, penalties and any other monetary consequence or liability in contract, under statute or at law incurred by the architect arising out of or in connection with this contract, the works or the project at large:
    • Arising out of or in connection with personal injury (including death) to or affecting you or anyone, defects and property damage to or affect ing you or anyone, financial loss to or affecting you or anyone, any statutory, regulatory, or supervisory investigation or proceeding involving anyone (except for the architect where it involves the NSW ARB); and
    • Whether arising out of or in connection with allegations made by you, a party you have contracted with, party the architect has contracted with, or anyone else, or an authority or regulator or other supervisory body (except the NSW ARB),
  • Except to the extent the architect is covered under their public liability or professional indemnity insurance policy as applicable.
  • If you are a Consumer (Consumer as defined in section 3 of the Australian Consumer Law) (“ACL”) and the architect supplies goods or services to you, there may be certain guarantees applicable under Division 1 of Part
  • 3-2 of the ACL. To the extent those Consumer Guarantees apply to:
    • PDH goods or services supplied by the architect, the architect recognises you may have certain rights under the ACL in connection with those Conusmer Guarantees as they apply to those PDH good or services and nothing in this contract should be interpreted as attempting to ex clude, restrict or modify the application of those rights;
    • non PDH goods or services supplied by the architect, the architect’s liability to you in connection with any breach of the Consumer Guaran tees in respect of those non PDH good or services is limited (at the architect’s discretion) to:
      • in the case of goods: the replacement of the goods or the supply of equivalent goods;
      • the repair of the goods;
      • the payment of the cost of replacing the goods or of acquiring equivalent goods; or
      • the payment of the cost of having the goods repaired; and
      • in the case of services: supplying the services again; or
      • the payment of the cost of having the services supplied again.
  • If you make a claim against the architect which includes a cause of action (whether in contract under statute or at law) other than for a breach of a Consumer Guarantee then, to the extent the claim, or part of the claim,
  • does not relate to a Consumer Guarantee and to the extent permitted by law, the architect’s maximum aggregate liability to you is limited to the greater of:
    • the cost of the goods or services charged by the architect under this contract; and
    • insurance proceeds actually recovered (if any) under their public liability or professional indemnity insurance policy as applicable.
  • A reference to PDH goods or services means goods or services which, for the purposes of the ACL, are of a kind ordinarily acquired for personal, domestic or household use or consumption.

 

8 . s u s p e n s i o n .

8.1 Suspension by the Architect
  • If you fail to pay in full any one or more of the tax invoices provided by the architect within the time provided for, the architect may (on giving five business days’ written notice) suspend the performance of all or part of the services and exercise their rights under the provisions of this contract
  • In the event that:
    • Agreement is not reached as to the amount payable under the dispute resolution process; or
    • You breach the terms of payment under the dispute resolution process;
      • The architect may, if the architect still assesses you are in default, exercise their rights under this contract without prejudice to either party’s rights to dispute the validity of the termination


8.2 Resuming Performance after Suspension
  • The architect on giving five business days’ written notice, resume the performance of the services or the relevant part
  • The architect must, on being paid in accordance with the process in this con tract or otherwise, resume the The architect may, on giving five business days’ written notice, resume the performance of the services or the relevant part


8.3 Consequences of Suspension

If the architect exercises their rights under the ‘suspension by the architect’ clause:

  • You may not terminate this contract under the general law (or otherwise) with out complying with the dispute resolution and termination provisions in this contract;
  • The project The project may be delayed beyond the actual period of suspension; and
  • The copyright licence granted under the above, is revoked during the period of the suspension

 

9 . d i s p u t e  r e s o l u t i o n .

  • In the event that the parties are in dispute or disagreement or allege a breach of an obligation under this contract, or at law or under statute otherwise, it is a requirement that alternative dispute resolution takes place. The following alter native dispute resolution process must be followed:
    • Before commencing a formal dispute in writing, the party who initiates the dispute or disagreement including any assertion that the other par ty is in breach of their obligations under this contract or at law or under statute otherwise (“the issues”) must:
      • Contact the other party to discuss the issues (and any issues the other party has, which they must also raise in response) (“the discussion”); or
      • Arrange a meeting to hold the discussion; and
      • The other party must agree to have the discussion; and
      • The discussion is to occur in a clear, respectful, non-emotive manner;
    • If after the discussion any of the issues are unresolved, a party must give a written notice (“dispute notice”) to the other party:
      • Setting out the issues in a concise, clear, respectful, non-emotive manner;
      • Setting out how they would like to see the issues resolved; and
      • Proposing a place and not less than three dates and times within a period of the next five business days for a meeting to take place to resolve the issues
    • The other party must:
      • Set out in concise, clear, respectful, non-emotive manner their relevant response to the issues including any of their own issues;
      • Set out how the party would like to see the issues resolved; and
      • Agree to one of the three dates and times proposed by the party for the meting (or propose three new dates which are no later than a further period of five business days thereafter);
    • The parties must then meet in good faith and in a respectful and non-emotive manner for a resolution discussion to achieve a complete resolution of, or at least seek to minimise, the issues and to the extent there is resolution of the issues, document that resolution in writing; and
    • To the extent there is a failure to achieve a complete resolution of all the issues documented in writing within 15 business days of the giving of the dispute notice, this shall be a deemed failure to reach a complete resolution.
  •  The parties are permitted to have one non-legally qualified support person attend any meetings referred to
  • In the event the parties are unable to reach a complete resolution, a party may within a further 10 business days of the date applicable, contact the Registrar of the NSW ARB requesting that the parties be referred to mediation under the NSW ARBs alternative dispute resolution process and the parties must then participate in and shall be guided by this process
  • In the event this clause does not result in a complete resolution of all the issues, the parties may utilise their other rights under this contract under statue and at law
  • The existence of a disagreement does not excuse any party from performing their respective obligations under this contract (except those in respect of which the disagreement exists)
  • To the extent you are a consumer under the ACL and have any claim under this contract arising out of any Consumer Guarantee, then you are encouraged to follow, but are not bound by, the dispute resolution procedures set out in this clause.


1 0 . g s t .

  • The parties acknowledge that, unless otherwise expressly stated, all amounts of monetary consideration in this contract are exclusive of GST
  • Unless otherwise expressly stated, you, as the client, are responsible for GST

 

1 1 . t e r m i n a t i o n .

  • This contract may be terminated:
    • By agreement of the parties which must be confirmed in writing; or
    • With either party giving no less than 10 business days’ notice of termination in writing to the other party if there are no disputes, disagreements or alleged breaches of obligations; or
    • If there are disputes, disagreements or alleged breaches of obligations between the parties, with either party giving no less than 10 business days’ notice of termination in writing to the other party after completion of the dispute resolution process; or
    • By the architect, in order to comply with the code of conduct, which provides that the architect must withdraw from the provision of any architectural services if the architect reasonably believes that, in the ar chitect’s professional judgment, the provision of the services would require the architect to act in a manner that the architect considers unethical, or in contravention of the relevant Act, the Regulation or the code of conduct. Under this contract, such withdrawal may occur by the architect fiving no less than 2 business days’ notice of termination in writing.
  • Upon a party giving notice of termination under the above clause, the archi tect must promptly issue a tax invoice setting out details of the following:
    • The unbilled value of the services performed to the date of the notice;
    • The additional unbilled value of the services to be performed from the date of the notice up to the effective date of termination (if any);
    • The unbilled value of the disbursement incurred to the date of the no tice (including any administration fee);
    • Allowance for monies received on account for unbilled services or dis bursements
  • Unless otherwise established at law, you, as the client, are liable to pay the architect the amount of the tax invoice referred to in the previous clause and any interest applicable under this contract in the event of late payment
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