STANDARD TERMS OF ENGAGEMENT

BETWEEN CLIENT AND GARNET BUILDING DESIGN SERVICES PTY LTD

1. TERMINOLOGY

1.1 Unless the context requires otherwise, all terms in these Standard Terms of Engagement take their meaning from the Quote & Contract Engagement letter, except that ‘Services’ mean the proposed extent of works outlined in the Fee Proposal, plus any additional services GBD Services Pty Ltd. (Trading as Garnet Building Design) undertakes on the Clients behalf.

 

2. ROLE OF GBD

2.1 In performing the Services, GBD shall exercise the degree of skill, care and diligence normally exercised by members of the building design & drafting profession performing services of a similar nature.

 

2.2 In all matters, GBD will exercise its professional judgement independently and without interference from the Client. In those circumstances where GBD is required to exercise its judgment to decide between the interests of the Client and a third party (for example, when GBD is appointed as superintendent under a construction contract), it will do so independently and as required by the terms of any contract.

 

2.3 GBD will use its reasonable endeavours to deliver the Services in the timeframes set out in the Quote & Contract Engagement letter (if any are noted) and otherwise in a reasonably timely manner to the extent within its control. The Client must keep GBD informed of any pressing deadlines. GBD will not commit a breach of this agreement nor will be liable for any claims due to any delay caused by events or circumstances outside of its control.

 

3. ROLE OF THE CLIENT

3.1 The Client appoints the Client Representative nominated in the Quote & Contract Engagement Letter Acceptance form as its agent with authority to act on behalf of the Client for all purposes in respect of the subject matter of this agreement.

 

3.2 Where the Client is not also the registered owner of a Project Site, the Client warrants that:

(a) the Client has obtained the consent of the registered owner to GBD’s officers, employees and consultants accessing the Project Site, and

(b) the registered owner has, to the extent required, provided its consent to GBD undertaking the Services (e.g. the registered owner’s consent may be required for the lodgement of certified drawings with a local council).

 

3.3 The Client must provide to GBD, the Client Representative and/or other consultants appointed in relation to the Project (as the case may be) when reasonably required by GBD:

(a) timely, accurate and proper instructions, including all Client requirements, documents, briefings, information, reports and records concerning the Project and the Services, and

(b) responses to all queries put by GBD.

 

3.4 The Client must act reasonably and lawfully and take reasonable care to protect its own interests in respect to all matters associated with the Services (including to notify GBD if it disagrees with any of assumptions GBD informs the Client it has made).

 

3.5 The Client must provide GBD and its employees, agents and consultants with such reasonable unfettered access to the site/s as is necessary to enable it to properly perform the Services.

 

3.7 The Client acknowledges that GBD is under no obligation to undertake such services which must be carried out by any statutory authorities and/or by other consultants. If such services are required, the Client shall obtain these services at its cost and if GBD obtains such services on behalf of the Client it will do so on the basis set out in the Time & Cost Schedule.

 

4. PAYMENT TO GBD FOR SERVICES

4.1 Fees: The Client must pay to GBD the fees and reimbursable expenses for providing the Services, calculated on the basis set out in the Fee Proposal. Where a fixed price is specified in the Fee Proposal for the Services (including for any part or stage of the Services), subject to any variation, the fee for the Services is the fixed amount so specified. Where a fixed price is not specified for the Services (including for any part or stage of the Services) or where the Services are specified as being charged on a ‘time and cost’ basis, the fee for the Services will be calculated in accordance with the Time & Cost Schedule.

 

4.2 Interim Billing: Unless otherwise provided in the Fee Proposal, irrespective of whether GBD’s fee is calculated on a fixed price or ‘time and cost’ basis, GBD may issue interim bills to the Client for Services undertaken by GBD to the date of the interim bill. To avoid doubt, GBD may issue interim bills prior to having completed all the Services (including all the Services for any part or stage of the Services). GBD may issue interim bills at any time.

 

4.3 Due date for payment: All bills must be paid by the Client to GBD without set off or deduction within 7 days of the date of the invoice unless a prior agreement has been established and approved by Garnet Building Design.

 

4.4 Late Payment Fee: GBD may issue a Late Payment Fee for invoices overdue by more than 14 days. This fee will be calculated based on the outstanding amount.

 

4.5 Recovery costs: The Client must pay all costs and expenses (including legal fees on a full indemnity basis) incurred by GBD associated with the recovery or attempted recovery from the Client of any outstanding amounts.

 

4.6 Suspension: In the event of failure of the Client to make payment strictly in accordance with this agreement, GBD may, without prejudice to its right to terminate this agreement, suspend delivery of the Services. During any period of suspension, GBD is not:

(a) obliged to undertake any further Services and may withhold from the client any draft or completed documents, plans or certificates, or

(b) liable for any costs or delays incurred by the Client caused directly or indirectly by the exercise of this right.

 

5. VARIATIONS

5.1 GBD may, but is not obliged to, undertake services requested by the Client in addition to the extent of works outlined in the Quote & Contract Engagement Letter.

 

5.2 The Client will be charged for any additional services undertaken by GBD beyond the extent of works outlined in the Fee Proposal, including any additional services or work occasioned:

(a) because any assumptions outlined in the Fee Proposal were not satisfied or accurate,

(b) by reason of any delay (including, for example, if the Project does not proceed expeditiously),

(c) due to inaccuracy or insufficiency of instructions, or

(d) by any breach of these Terms of Engagement.

The additional charge will be the amount agreed in writing between the parties and failing agreement, the additional services will be charged on a ‘time and cost’ basis.

 

5.3 Without prejudice to any other rights of GBD (including to terminate or charge for additional services in accordance with clause 5.2 above), in the event the Client breaches any of the conditions and/or warranties set out in clause 3, GBD may issue a written notice stating that it is given under this clause 5.3 substituting any fixed price offered in the Fee Proposal. If the Client receives a price substitution notice under this clause 5.3, the Client will be at liberty to terminate GBD’s engagement on notice in writing if it does not agree to any increased fixed price. In that event, GBD will be entitled to render an invoice for work undertaken to that date, which, with all prior invoices, will be immediately due and payable.

 

6. SCOPE OF LIABILITY

6.1 GBD is not:

(a) required to verify the accuracy or sufficiency of documents or reports created by third parties (e.g. survey data or geotechnical reports), or

(b) responsible, except to the extent required by law, for workplace health and safety in relation to any Project site.

 

6.2 GBD shall be discharged from all liability 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 and the Client shall not be entitled to commence any action or claim whatsoever against GBD or any employee of GBD in respect of the Services after that date.

 

7. COPYRIGHT AND USE OF DOCUMENTS

7.1 Copyright in all drawings, plans, reports, specifications, bills of quantities, calculations and other documents (“the documents”) provided by GBD in connection with the Project shall remain vested in GBD.

 

7.2 The Client is granted a limited licence to use the documents only for the purpose of completing the Project described in the Fee Proposal. The Client shall not use or make copies of such documents in connection with any other work or provide the documentation or copies of the documentation to a third party unless prior approval is given by GBD. The Client’s licence to use the documents is immediately revoked if any monies on any account are outstanding to GBD.

 

7.3 The Client authorises GBD, for its marketing and adverting purposes:

(a) to disclose its involvement in the Project and/or relationship with the Client,

(b) to commission the taking of images of the Project, or

(c) to use images, plans and drawings of the Project supplied by the Client or the Client’s other consultants.

 

8. ASSIGNMENT

8.1 The Client must not assign (or purport to assign) this agreement, any benefits or obligations created by this agreement, or any documents, certificates or drawings created by GBD as a consequence of entering into this agreement without the prior written consent of GBD (which consent may be withheld in GBD’s absolute discretion or granted only subject to conditions determined by GBD).

 

9. TERMINATION

9.1 GBD may terminate the agreement and their obligations under the agreement immediately in the event:

(a) the Client fails to pay monies payable to GBD as and when due,

(b) other than any obligation to pay any amount to GBD, the Client breaches any obligation or warranty in these Standard Terms of Engagement, provided that, if the breach is capable of remedy, GBD must first deliver a notice to the Client giving the Client not less than 7 days to remedy such breach,

(c) a site or location under the Client’s ownership or control is considered to be hazardous or has the potential to contain an asbestos or a material containing asbestos in an unsafe form,

(d) the Client is insolvent, bankrupt or subject to any form of external administration,

(e) GBD reasonably believes a conflict of interest may arise or has arisen, or

(f) GBD reasonably believes that there has been a breakdown in the relationship of mutual trust and confidence.

 

9.2 GBD may terminate this agreement on 30 days written notice to the Client.

 

9.3 In the event of termination under this clause, all monies on any account become immediately due and payable to GBD.

 

10. GENERAL PROVISIONS

10.1 Severance: If any provision of this agreement between the parties is unenforceable, the parties agree that such provision will be severed from this Agreement.

 

10.2 Jurisdiction: This Agreement is governed by the laws of Queensland and the parties submit to the exclusive jurisdiction of the Queensland Court.

11. PRIVACY

10.1 GBD will collect and store personal information including client/s name, address, phone number, email address, etc. for the ability to complete the project, some of this information (Client contact details & Site Plans) will be shared with third parties for the ability to provide quotes on engineering, soil tests and building certification.

 

10.2 All personally identifiable information is kept and stored securely on GBD IT Systems, GBD will release this information to a client on request.

 

11. RELEASE OF PLANS

11.1 GBD will release plans of previous work to new owners of premises on requesting in writing to GBD, however a fee may apply for the release of these plans, all personally identifiable information will be removed (previous Client’s name & Contact details).

 

11.2 GBD will require proof of ownership before any plans will be released to new owners.

 

 

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