Liquid Design Terms and Conditions
1. Definitions
1.1 “Designer” means Liquid Design Pty Ltd, its successors and assigns or any person acting on behalf of and with the authority of Liquid Design Pty Ltd.
1.2 “Client” means the person/s or any person acting on behalf of and with the authority of the Client requesting the Designer to provide the Services as specified in any Proposal, quotation, order, invoice or other documentation, and:
(a) if there is more than one Client, is a reference to each Client jointly and severally; and
(b) if the Client is a part of a Trust, shall be bound in their capacity as a trustee; and
(c) includes the Client’s executors, administrators, successors and permitted assigns.
1.3 “Services” means all Services provided by the Designer to the Client at the Client’s request from time to time.
1.4 “Documentation” means any documents, designs, drawings or other materials provided, utilised or created incidentally by the Designer in the course of it conducting, or providing to the Client, any Services.
1.5 “Proposal” means the letters or other documents prepared by the Designer and submitted to the Client to describe the scope of Services to be provided, the personnel and equipment proposed to be utilized, and the amount or method of calculation of the Fee and reimbursable expenses.
1.6 “Fee” means the price payable (plus any GST where applicable) for the Services as agreed between the Designer and the Client in accordance with clause 5 of this contract.
1.7 “GST” means Goods and Services Tax as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).
2. Acceptance
2.1 The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for, or accepts Services provided by the Designer.
2.2 These terms and conditions may only be amended with the consent of both parties in writing, and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and the Designer.
2.3 These terms and conditions are to be read in conjunction with the Proposal. If there are any inconsistencies between the two documents, then the terms and conditions contained in that document shall prevail.
2.4 The Client:
(a) acknowledges that the Designer’s opinion of probable cost of any expense as per clauses 5.2 and 6 is not a quotation or tender, and is not binding in any way;
(b) authorises the Designer to act as the Client’s agent in regard to the Services, as specified in the Proposal, and in accordance with these terms and conditions;
(c) shall provide to the Designer a brief and all information for the provision of the Services.
2.5 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions Act 2000 or any other applicable provisions of that Act or any Regulations referred to in that Act.
3. Errors and Omissions
3.1 The Client acknowledges and accepts that the Designer shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
(a) resulting from an inadvertent mistake made by the Designer in the formation and/or administration of this contract; and/or
(b) contained in/omitted from any Documentation (hard copy and/or electronic) supplied by the Designer in respect of the Services.
3.2 In the event such an error and/or omission occurs in accordance with clause 3.1, and is not attributable to the negligence and/or wilful misconduct of the Designer; the Client shall not be entitled to treat this contract as repudiated nor render it invalid.
4. Change in Control
4.1 The Client shall give the Designer not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone or fax number/s, changes of trustees or business practice). The Client shall be liable for any loss incurred by the Designer as a result of the Client’s failure to comply with this clause.
5. Fee and Payment
5.1 At the Designer’s sole discretion the Fee shall be either:
(a) as indicated on any invoice provided by the Designer to the Client; or
(b) the Fee as at the date of provision of the Services according to the Designer’s current hourly rate; or
(c) the Designer’s quoted price (subject to clause 5.2) which will be valid for the period stated in the Proposal or otherwise for a period of fourteen (14) days.
5.2 The Designer reserves the right to change the Fee:
(a) if a variation to the Services (including any variation to the Client’s brief or specifications) is requested or required due to changes in regulations, etc.; or
(b) where additional Services are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, hard rock barriers below the surface, iron reinforcing rods in concrete, or environmental factors outside the control of the Designer) which are only discovered during the provision of the Services; or
(c) in the event of increases to the Designer in the cost of labour or materials, which are beyond the Designer’s control; or
(d) where additional costs are incurred by the Designer due to unexpected delays such as the receipt of approvals or permits, or access to the site not being available as was agreed or when pre-arranged;
(e) all additional Services shall be charged as per clause 5.1(b).
5.3 Variations will be charged for on the basis of the Designer’s Proposal, and will be detailed in writing, and shown as variations on the Designer’s invoice. The Client shall be required to respond to any variation submitted by the Designer within five (5) working days. Failure to do so will entitle the Designer to add the cost of the variation to the Fee. Payment for all variations must be made in full at the time of their completion.
5.4 At the Designer’s sole discretion, a deposit may be required.
5.5 Time for payment for the Services being of the essence, the Fee will be payable by the Client on the date/s determined by the Designer, which may be:
(a) on provision of the Services;
(b) by way of instalments/progress payments in accordance with the Designer’s payment schedule. The Designer may submit detailed payment claims at monthly intervals for Services provided up to the end of each month. The value of Services so provided shall include the reasonable value of authorised variations;
(c) fourteen (14) days following the date of the invoice which is posted to the Client’s address or address for notices;
(d) the date specified on any invoice or other form as being the date for payment; or
(e) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by the Designer.
5.6 Payment may be made by bank cheque, cheque, electronic/on-line banking, or by any other method as agreed to between the Client and the Designer.
5.7 The Client shall not be entitled to set off against, or deduct from the Fee, any sums owed or claimed to be owed to the Client by the Designer nor to withhold payment of any invoice because part of that invoice is in dispute.
5.8 Unless otherwise stated the Fee does not include GST. In addition to the Fee, the Client must pay to the Designer an amount equal to any GST the Designer must pay for any provision of Services by the Designer under this or any other agreement. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Fee. In addition, the Client must pay any other taxes and duties that may be applicable in addition to the Fee except where they are expressly included in the Fee.
5.9 Receipt by the Designer of any form of payment shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised, and until then the Designer’s ownership or rights in respect of the Services, and this agreement, shall continue.
6. Reimbursable Expenses
6.1 Unless otherwise agreed or specified, the Client shall be responsible for reimbursement to the Designer for the following:
(a) travel, accommodation and meal allowances – including car travel beyond a thirty (30) kilometre office radius or car hire;
(b) the cost of provision of more than four (4) copies of the Documentation pertaining to the Services;
(c) facsimile transmissions (other than local), parcels by air or post and other courier expenses;
(d) special computer services or consultants (including quantity surveyors) as per clause 9.
6.2 Where monies are paid by the Designer, on behalf of the Client (e.g. council fees or engagement of consultants as per clause 9), a handling fee of ten percent (10%) shall be applied.
7. Provision of the Services
7.1 The Services shall be undertaken in phases as specified by the programme, which shall be confirmed once the Client has accepted the Proposal and made payment to the Designer of the deposit.
7.2 Delivery of the Documentation shall be made in PDF format only via email to the Client’s nominated email address or by file transfer.
7.3 Any time specified by the Designer for provision of the Services is an estimate only and the Designer will not be liable for any loss or damage incurred by the Client as a result of any delay. However both parties agree that they shall make every endeavour to enable the Services to be provided at the time and place as was arranged between both parties. In the event that the Designer is unable to provide the Services as agreed solely due to any action or inaction of the Client then the Designer shall be entitled to charge a reasonable fee for re-providing the Services at a later time and date.
8. Extension of Contract Period
8.1 The Designer shall be entitled to claim an extension to the term of the contract in the event of delays resulting from any matter whatsoever which is not entirely under the control of the Designer. These matters shall include, but are not limited to delays caused by:
(a) response(s) to information request(s) made by the Designer to the Client, or any third party, not being available when expected or required;
(b) approval authorities response times for requests for preliminary decisions, information;
(c) changes to the design brief being requested by the Client;
(d) time taken by any approval authority for the granting of relevant approvals or permits;
(e) assessment area not being available as was agreed or when pre-arranged;
(f) any other variation to the contract.
9. Nominated Consultants
9.1 The Designer may, acting solely as agent on behalf of the Client, engage third-party consultants, to which the following shall apply:
(a) the Designer shall be entitled to enter into contracts with such advisors in the name of the Client;
(b) the Client shall be responsible for all payments to such advisors, unless payment is made by the Designer on behalf of the Client as per clause 6.2.
9.2 The Designer does not warrant the accuracy or quality of the consultant’s work, or warrant that the recommendations of the consultants are appropriate or adequate, or are fit for their purpose, or that they are not given negligently. The Client agrees that they shall not make any demand on the Designer or commence any legal proceedings against the Designer, and the Designer shall have no liability, whether in negligence or otherwise, to the Client in relation to any services performed by the consultants.
10. Partial Service
10.1 If the Client requests a partial service (i.e. design and documentation only) the Designer will not undertake any site involvement and is not available to sign off on any practical completion certificates or validate construction works. The Client, by requesting a partial service understands and accepts full duty and responsibility to ensure that all and any of the critical structural and weather tightness detailing outlined in the supplied building consent documentation is constructed in accordance with the Designer’s plans. Consequently, the Designer will not be liable (in contract, tort or otherwise) for any claim, damage, liability, loss or expense incurred by the Client arising in any way in relation to the consultant not carrying out the works as described in the construction contract which the documentation prepared by the Designer forms the whole or part of.
11. Compliance with laws
11.1 The Client and the Designer agree that both parties shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the provision of Services by the Designer.
11.2 The Client shall obtain (at the expense of the Client) all licences and approvals that may be required to enable the Designer to provide the Services.
12. Designer’s Obligations
12.1 The Designer warrants that it has the necessary skills, competence, and experience to undertake and complete the Services and shall at all times apply such skills, competence and experience in performance of the Services.
12.2 The Designer accepts that it shall be appointed and shall be entitled to act as the Client’s agent for the purposes of the Project for the term of this agreement.
12.3 The Designer represents that the Designer and its directors maintain current registration with the Architects Registration Board and maintains current professional indemnity insurance.
12.4 If the Client shall instruct the Designer to change the scope of the Services, the Designer shall promptly notify the Client in writing of any variation in Fees pursuant to clause 5.2 of this agreement. The Client agrees that additional fees may be payable.
12.5 The Designer shall keep full records of the Services provided in the manner determined by the Designer, and shall provide to the Client with updates with respect of the Services at the time and in the manner determined by the Designer in the Designer’s absolute discretion.
13. Client’s Obligations
13.1 The Client appoints the Designer as its agent for the purposes of the project for the term of this agreement.
13.2 The Client shall provide to the Designer all documentation and other information as and when requested. The Client acknowledges that the ability of the Designer to provide the Services is dependent upon the Client complying with this sub-clause.
13.3 The Client acknowledges that if their requirements change during the term of the agreement, the Fee may be subject to change.
13.4 The Client warrants that the site of the project complies with all relevant laws and regulations and undertakes to appoint consultants to identify, handle and/or remove any hazardous or toxic materials or substances which may be located on the site of the project, prior to the commencement of this agreement.
14. Title
14.1 The Client acknowledges and agrees that the Client’s obligations to the Designer for the provision of the Services shall not cease (and where it is intended that the ownership of Documentation is to pass to the Client that such ownership shall not pass until): until:
(a) the Client has paid the Designer all amounts owing for the Services; and
(b) the Client has met all other obligations due by the Client to the Designer in respect of all contracts between the Designer and the Client.
14.2 It is further agreed that:
(a) the Client is only a bailee of the Documentation and must return the Documentation to the Designer immediately upon request by the Designer;
(b) the Client holds the benefit of the Client’s insurance of the Documentation on trust for the Designer and must pay to the Designer the proceeds of any insurance in the event of the Documentation being lost, damaged or destroyed;
(c) the Client irrevocably authorises the Designer to enter any premises where the Designer believes the Documentation are kept and recover possession of the Documentation.
15. Personal Property Securities Act 2009 (“PPSA”)
15.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
15.2 Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Documentation and collateral (account) – being a monetary obligation of the Client to the Designer for Services – that have previously been provided and that will be provided in the future by the Designer to the Client.
15.3 The Client undertakes to:
(a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which the Designer may reasonably require to;
(i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
(ii) register any other document required to be registered by the PPSA; or
(iii) correct a defect in a statement referred to in clause 15.3(a)(i) or 15.3(a)(ii);
(b) indemnify, and upon demand reimburse, the Designer for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any registration made thereby;
(c) not register a financing change statement in respect of a security interest without the prior written consent of the Designer;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Documentation and/or collateral (account) in favour of a third party without the prior written consent of the Designer.
15.4 The Designer and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
15.5 The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
15.6 The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
15.7 Unless otherwise agreed to in writing by the Designer, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.
15.8 The Client must unconditionally ratify any actions taken by the Designer under clauses 15.3 to 15.5.
15.9 Subject to any express provisions to the contrary (including those contained in this clause 15), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
16. Security and Charge
16.1 In consideration of the Designer agreeing to provide the Services, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
16.2 The Client indemnifies the Designer from and against all the Designer’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising the Designer’s rights under this clause.
16.3 The Client irrevocably appoints the Designer and each director of the Designer as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 16 including, but not limited to, signing any document on the Client’s behalf.
17. Defects, Warranties and the Competition and Consumer Act 2010 (CCA)
17.1 The Client must inspect the Designer’s Services on completion and must within seven (7) days notify the Designer in writing of any evident defect, in the Services provided (including the Designer’s workmanship) or of any other failure by the Designer to comply with the description of, or quote for, the Services which the Designer was to provide. The Client must notify any other alleged defect in the Designer’s Services as soon as is reasonably possible after any such defect becomes evident. Upon such notification the Client must allow the Designer to review the Services that were provided.
17.2 Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (“Non-Excluded Guarantees”).
17.3 The Designer acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
17.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, the Designer makes no warranties or other representations under these terms and conditions including, but not limited to, the quality or suitability of the Services. The Designer’s liability in respect of these warranties is limited to the fullest extent permitted by law.
17.5 If the Client is a consumer within the meaning of the CCA, the Designer’s liability is limited to the extent permitted by section 64A of Schedule 2.
17.6 If the Designer is required to rectify, re-provide, or pay the cost of re-providing the Services under this clause or the CCA, but is unable to do so, then the Designer may refund any money the Client has paid for the Services but only to the extent that such refund shall take into account the value of Services which have been provided to the Client which were not defective.
18. Intellectual Property
18.1 The Designer shall retain ownership of the copyright to all Documentation produced by the Designer during the course of the Services. The Client shall have a licence to use such Documentation, conditional to the following:
(a) the Client has paid to the Designer all due and payable Fees and expenses.
(b) the licence shall only extend to the particular site which is the subject of the Services.
18.2 Where the Client is default of their obligations under clause 18.1, the Designer reserves the right to revoke any licence extended to the Client, provided the Designer has given the Client at least fourteen (14) days notice of their intention to do so, and the Client has not remedied the default in the meantime.
18.3 The Client warrants that all designs, specifications or instructions given to the Designer will not cause the Designer to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify the Designer against any action taken by a third party against the Designer in respect of any such infringement.
18.4 The Client agrees that the Designer may (at no cost) use for the purposes of marketing or entry into any competition, any Documentation which the Designer has created for the Client.
18.5 If during the course of providing the Services, the Designer develops, discovers, or first reduces to practice a concept, product or process which is capable of being patented, then:
(a) such concept, product or process shall be and remain the property of the Designer, and the Client shall not use, infringe or otherwise appropriate the same without first obtaining the written consent of the Designer;
(b) the Client shall be entitled to a royalty free licence to use the same during the course of the Services.
19. Default and Consequences of Default
19.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at the Designer’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
19.2 If the Client owes the Designer any money the Client shall indemnify the Designer from and against all costs and disbursements incurred by the Designer in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, the Designer’s contract default fee, and bank dishonour fees).
19.3 Further to any other rights or remedies the Designer may have under this contract, if a Client has made payment to the Designer, and the transaction is subsequently reversed, the Client shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by the Designer under this clause 19 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this agreement.
19.4 Without prejudice to the Designer’s other remedies at law the Designer shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to the Designer shall, whether or not due for payment, become immediately payable if:
(a) any money payable to the Designer becomes overdue, or in the Designer’s opinion the Client will be unable to make a payment when it falls due;
(b) the Client has exceeded any applicable credit limit provided by the Designer;
(c) the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
20. Cancellation
20.1 Without prejudice to any other remedies the Designer may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions the Designer may suspend or terminate the provision of Services to the Client. The Designer will not be liable to the Client for any loss or damage the Client suffers because the Designer has exercised its rights under this clause.
20.2 The Designer may cancel any contract to which these terms and conditions apply or cancel provision of Services at any time before the Services have commenced by giving written notice to the Client. On giving such notice the Designer shall repay to the Client any money paid by the Client for the Services. The Designer shall not be liable for any loss or damage whatsoever arising from such cancellation.
20.3 In the event that the Client wishes to cancel the Services then the Client must notify the Designer of the same in writing, and the Client shall pay the Designer for all Services provided up until the notice of cancellation was received by the Designer, plus all loss incurred (whether direct or indirect) by the Designer as a direct result of the cancellation (including, but not limited to, any loss of profits).
21. Privacy Act 1988
21.1 The Client agrees for the Designer to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, previous credit applications, credit history) about the Client in relation to credit provided by the Designer.
21.2 The Client agrees that the Designer may exchange information about the Client with those credit providers and with related body corporates for the following purposes:
(a) to assess an application by the Client; and/or
(b) to notify other credit providers of a default by the Client; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or
(d) to assess the creditworthiness of the Client including the Client’s repayment history in the preceding two years.
21.3 The Client consents to the Designer being given a consumer credit report to collect overdue payment on commercial credit.
21.4 The Client agrees that personal credit information provided may be used and retained by the Designer for the following purposes (and for other agreed purposes or required by):
(a) the provision of Services; and/or
(b) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Services; and/or
(c) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
(d) enabling the collection of amounts outstanding in relation to the Services.
21.5 The Designer may give information about the Client to a CRB for the following purposes:
(a) to obtain a consumer credit report;
(b) allow the CRB to create or maintain a credit information file about the Client including credit history.
21.6 The information given to the CRB may include:
(a) personal information as outlined in 21.1 above;
(b) name of the credit provider and that the Designer is a current credit provider to the Client;
(c) whether the credit provider is a licensee;
(d) type of consumer credit;
(e) details concerning the Client’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);
(f) advice of consumer credit defaults, overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Client no longer has any overdue accounts and the Designer has been paid or otherwise discharged and all details surrounding that discharge(e.g. dates of payments);
(g) information that, in the opinion of the Designer, the Client has committed a serious credit infringement;
(h) advice that the amount of the Client’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
21.7 The Client shall have the right to request (by e-mail) from the Designer:
(a) a copy of the information about the Client retained by the Designer and the right to request that the Designer correct any incorrect information; and
(b) that the Designer does not disclose any personal information about the Client for the purpose of direct marketing.
21.8 The Designer will destroy personal information upon the Client’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this agreement or is required to be maintained and/or stored in accordance with the law.
21.9 The Client can make a privacy complaint by contacting the Designer via e-mail. The Designer will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Client is not satisfied with the resolution provided, the Client can make a complaint to the Information Commissioner at www.oaic.gov.au.
22. Limitation of Liability
22.1 The Designer undertakes to act in all professional matters as a faithful consultant to the Client in accordance with the Architects Regulation 2012 (New South Wales), Architects Code of Professional Conduct, whose interests will be watched over with skill and care. Notwithstanding, the Designer shall only be liable to the Client for the consequences of any negligent act, omission or statement of the Designer, and then only to the extent and limitations referred to in clause 22.2.
22.2 The loss and damage for which the Designer is so liable, and the recompense to be made by the Designer to a Client for such liability as specified in clause 22.1, shall be limited to the maximum value of the Designer’s Professional Indemnity cover in respect of any single act, omission or statement, unless otherwise specified in the Proposal.
22.3 The liability of the Designer shall cover only direct loss or damage in respect of the Services, or other matters arising directly from the scope of the Services agreed in the Proposal, and then only to the maximum limit specified as per clause 22.2. All references herein to loss or damage shall be deemed to exclude loss or damage sustained by any third party in respect of which the Client is liable and responsible (as between the Client and the third party) whether by statute, contract tort or otherwise.
22.4 The liability of the Designer to the Client shall expire twelve (12) months from the date of either practical completion or the termination of the Services, unless in the meantime the Client has made a claim in writing to the Designer, specifying a negligent act, omission or statement said to have caused alleged loss or damage sustained or sustainable.
22.5 Notwithstanding this clause 22, the Designer shall not be liable for any loss or damage sustained or sustainable by a Client in relation to:
(a) errors occurring in plans, designs or specifications not created or prepared by the Designer;
(b) errors occurring during the course of any services which are not provided by, nor the responsibility of, the Designer;
(c) the use of any Documentation or other information of advice without the approval of the Designer.
23. Settlement of Disputes
23.1 In the event of any dispute, both the Designer and the Client shall confer at least once to attempt to resolve such dispute. Should the two parties then not be able to resolve the dispute within thirty (30) days of one party first sending to the other written notice by certified mail of such dispute, it shall be and is hereby submitted to arbitration in accordance with and subject to the Rule for the Conduct of Commercial Arbitrations of the Institute of Arbitrators.
24. Building and Construction Industry Security of Payments Act 1999
24.1 At the Designer’s sole discretion, if there are any disputes or claims for unpaid Services then the provisions of the Building and Construction Industry Security of Payments Act 1999 may apply.
24.2 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the Building and Construction Industry Security of Payments Act 1999 of New South Wales, except to the extent permitted by the Act where applicable.
25. Service of Notices
25.1 Any written notice given under this contract shall be deemed to have been given and received:
(a) by handing the notice to the other party, in person;
(b) by leaving it at the address of the other party as stated in this contract;
(c) by sending it by registered post to the address of the other party as stated in this contract;
(d) if sent by facsimile transmission to the fax number of the other party as stated in this contract (if any), on receipt of confirmation of the transmission;
(e) if sent by email to the other party’s last known email address.
25.2 Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.
26. Trusts
26.1 If the Client at any time upon or subsequent to entering in to the contract is acting in the capacity of trustee of any trust (“Trust”) then whether or not the Designer may have notice of the Trust, the Client covenants with the Designer as follows:
(a) the contract extends to all rights of indemnity which the Client now or subsequently may have against the Trust and the trust fund;
(b) the Client has full and complete power and authority under the Trust to enter into the contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Client against the Trust or the trust fund. The Client will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity;
(c) the Client will not without consent in writing of the Designer (the Designer will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events:
(i) the removal, replacement or retirement of the Client as trustee of the Trust;
(ii) any alteration to or variation of the terms of the Trust;
(iii) any advancement or distribution of capital of the Trust; or
(iv) any resettlement of the trust property.
27. General
27.1 The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
27.2 These terms and conditions and any contract to which they apply shall be governed by the laws of New South Wales, the State in which the Designer has its principal place of business, and are subject to the jurisdiction of the Sydney Courts in New South Wales.
27.3 The Designer may licence and/or assign all or any part of its rights and/or obligations under this contract without the Client’s consent.
27.4 The Client cannot licence or assign without the written approval of the Designer.
27.5 The Designer may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this contract by so doing. Furthermore, the Client agrees and understands that they have no authority to give any instruction to any of the Designer’s sub-contractors without the authority of the Designer.
27.6 The Client agrees that the Designer may amend these terms and conditions by notifying the Client in writing. These changes shall be deemed to take effect from the date on which the Client accepts such changes, or otherwise at such time as the Client makes a further request for the Designer to provide Goods to the Client.
27.7 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
27.8 Both parties warrant that they have the power to enter into this agreement and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this agreement creates binding and valid legal obligations on them.