terms and conditions | NKstudiodesign

TERMS AND CONDITIONS

Consultant to Provide Services

1. The Consultant (i.e. NKstudiodesign) shall provide to the Client the Consulting services described in the Fee Proposal together with such other services as may be agreed from time to time (the "Services").

2. The Consultant shall provide the Services with such skill, care and diligence as is generally exercised by competent members of the building design professions performing services of a similar nature, at the time the Services are provided.

3. The Consultant shall perform the Services in a timely manner to the extent that it is within his control to do so.

4. If the Consultant becomes aware of any matter which will change or has changed the scope or timing of the Services then he will give notice to the Client which shall contain, as far as practicable in the circumstances, particulars of the change.

5. If the Client becomes aware of any matter which may change the scope or timing of the Services, or the Project then the Client will give written notice to the Consultant.

6. The Services will be performed at either the site of the project (the "Site"), the Consultant’s office or at other places reasonably required by the Client. Where the locations of the Consultant's work are not under the Consultant's control (including the Site), the Client must provide reasonable access to allow the Consultant to fulfil its obligations (including to provide the Services).

Information to be Provided by Client

7. The Client shall, at its own cost, as soon as practicable make available to the Consultant all information, documents and other particulars relating to the Client's requirement for the project as expressly set out in this Agreement (the "Requirements"). The Consultant is entitled to rely on such information, documents and other particulars as are provided by the Client pursuant to or in connection with this Agreement.

Payment of Fees

8. The Client shall pay to the Consultant:

a) The Fee and the Reimbursable Expenses as set out in the Fee Proposal together with such other amounts in respect of other services agreed to be provided;

b) Reasonable adjustments to the Fee and the Reimbursable Expenses to reflect the additional costs, expenses, incurred by the Consultant in the performance of the Services.

9. The Client must pay to the Consultant, without set-off or deduction the amount payable under this Agreement for the Services provided during the relevant period, within 14 days of the Consultant's valid tax invoice.

10. If the performance of the Services is delayed beyond a reasonable period for any reason other than a breach of the Agreement by the Consultant, the Client shall pay to the Consultant a reasonable sum of money to cover the consequential costs, and expenses suffered by the Consultant as a result of the delay.

11. If the parties are unable to agree upon an appropriate additional sum the matter shall be referred for determination in accordance with clause 19 of this Agreement.

Extent of Warranties Provided by Consultant

12. The Consultant does not give any warranty nor accept any liability in relation to the performance of non-performance of the Services except to the extent, if any, required by 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.

13. 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 Competition and Consumer Act 2010 (Cth) (as amended) or any relevant State Act or Territorial Ordinance which by law cannot be excluded, restricted or modified.

14. To the maximum extent permitted by law:

a. subject to paragraphs (b), (c) and (d) below, the Consultant's liability to the Client arising out of or in connection with this Agreement (including the performance or non-performance of the Services), whether under the law of contract, in tort, in equity, under statute or otherwise, shall be limited in aggregate to the amount specified in the Fee Proposal;

b. the Consultant is not liable to the Client in respect of any indirect, consequential or special losses (including loss of profit, loss of business opportunity and payment of liquidated sums or damages under any other agreement);

c. the Consultant shall be deemed to have been discharged from all liability in respect of the Services whether under contract, in tort, in equity, under statute or otherwise, at the expiration of the period specified in the table above, or if no date is specified, on the expiration of three (3) months from the completion of the Services;

d. if, and to the extent that, any of this clause is void as a result of section 68 of the Competition and Consumer Act 2010 (Cth), then the Consultant's liability for a breach of a condition or warranty is limited to the cost of rectifying the works which are the subject of this Agreement;

15. If the Consultant is required to exercise his professional judgement between the Client and a third party with whom the Client has a contract then he shall do so independently and as required by the terms of that contract.

Warranties & Indemnities Provided by Client

16. The Client indemnifies and holds harmless the Consultant in respect of any claim against the Consultant caused by or arising out of any act or thing done by the Consultant in good faith and purportedly pursuant to a right granted to the Consultant under the provisions of the Agreement.

Intellectual Property & Confidentiality

17. Subject to the Client complying with its obligations under the Agreement, the Consultant grants to the Client a non-exclusive, royalty-free and irrevocable licence to use (and allow others to use) any intellectual property (including all drawings, reports, specifications, bills of quantity, calculations and other documents, including "works" as defined in the Copyright Act 1968 (Cth) created or produced by the Consultant) arising out of provision of the Services for the purposes of completing the project. As between the Client and the Consultant, the ownership of the intellectual property rights vests in the Consultant.

18. Neither the client nor the Consultant is to disclose to third parties or use for any purpose (other than providing or benefiting from the Services) any information provided by the other unless:

a. required by law;

b. the information is already generally known to the public; or

c. the other consents to the disclosure.

All documentation and materials containing confidential information provided by one party to the other will be returned upon request unless required by law or otherwise.

Dispute Resolution

19. Any dispute or difference ("Dispute) between the Client and the Consultant may be notified by a party to the other party and the parties shall:

a. firstly meet to negotiate, in good faith, resolution of the Dispute; and

b. secondly, if negotiation fails to achieve a resolution of the Dispute within 7 days of the notification of the Dispute, attend mediation, administered in accordance with the Resolution Institute Rules for the Conduct of Commercial Arbitrations, provided that this provision shall not prevent the Consultant from instituting legal action at any time to recover moneys owing by the Client to the Consultant.

Termination of Contract

20. The Client may, without prejudice to any other rights or remedies it may have, by written notice served on the Consultant terminate its obligations under this Agreement:

a. if the Consultant is in breach of the terms of the Agreement and the breach has not been remedied within 28 days of a written notice served by the Client on the Consultant specifying the breach and requiring the breach to be remedied; or

b. upon the Client giving the Consultant 60 days written notice of its intention to do so; or

c. if the Consultant informs the Client that it is insolvent, becomes bankrupt, or becomes subject to any official management, receivership, liquidation, provisional liquidation, voluntary administration, winding up or external administration ("Insolvency Event").

21. The Consultant may, without prejudice to any other rights or remedies it may have, by notice in writing served on the Client suspend its obligations under this Agreement:

a. immediately by written notice if the Client has failed to pay in accordance with this Agreement; or

b. if the Client is in breach of any of the other terms of the Agreement and the breach has not been remedied within 14 days (or longer as the Consultant may allow) of a written notice served by the Client on the Consultant specifying the breach and requiring the breach to be remedied.

22. The Consultant may, without prejudice to any other rights or remedies it may have, terminate its obligations under this Agreement:

a. if the client having breached the contract by not paying monies when due and payable has not remedied the breach within 5 days of a written notice served by the Consultant on the Client specifying the breach and requiring the breach to be remedied; or

b. if the Client is in breach of any of the other terms of the Agreement and the breach has not been remedied within 28 days of a written notice served by the Client on the Consultant specifying the breach and requiring the breach to be remedied; or

c. upon the Consultant giving the Client 60 days' written notice of its intention to do so; or

d. if an Insolvency Event occurs in relation to the Client or if the Client informs the Consultant that it is insolvent, becomes bankrupt, or becomes subject to any official management, receivership, liquidation, provisional liquidation, voluntary administration, winding up or external administration ("Insolvency Event").

Engagement of Other Specialist Consultants

23. If the Consultant considers it appropriate to do so it may recommend the engagement of other consultants to assist the Consultant in specialist areas. Any other consultant/s shall be engaged by the Client at their own risk, cost and expense.

Privacy

24. The Consultant will not disclose any personal information which it has collected on the Client and the guarantors unless:

a. it is required to do so by law; or

b. it has obtained the prior written consent of the person who is the subject of that personal information.

25. The Consultant will provide the Client and the guarantors with access to the personal information held by the Consultant upon request on the basis that access is provided at a mutually convenient time at the Consultant’s business premises.

26. The Consultant may refuse access to the personal information if:

a. they are prohibited from granting access by law;

b. the access would unreasonably interfere with the privacy of another person;

c. the request for access is frivolous;

d. the information sought relates to actual or anticipated legal proceedings against the Consultant which the person would not be entitled to access in those proceedings.

27. If the Client or his agent requires copies of any documents in the Consultant’s possession, the Consultant reserves the right to charge administrative time and photocopying fees for the copies requested.

Miscellaneous

28. Neither party may assign, transfer or sublet any obligations under this Agreement without the written consent of the other. Unless stated in writing to the contrary, no assignment, transfer or subletting shall release the assignor from any obligation under this agreement.

29. In the interpretation of this Agreement no rule of construction applies to the disadvantage of one party on the basis that it put forward this Agreement or any part of it.

30. The laws of Western Australia are applicable to this agreement.

31. This agreement and the table above constitutes the entire agreement between the parties and supersedes all communications, negotiations, arrangements and agreements, either oral or written, between the parties with respect to the subject matter of this Contract.