General Conditions
This Agreement is entered into between the persons, organisations or entities described in the Schedule, together the Parties and each a Party.
Background
A. The Owner intends to engage the Contractor to carry out the Project at the Site.
B. The Parties have agreed for the Contractor to perform certain preliminary Services prior to the commencement of the construction works for the Project.
C. The Parties intend to separately enter into a Residential Building Contract for the construction works of the Project.
Acceptance and Term
1.1 The Owner accepts this Agreement by the earlier of:
(a) signing and returning this Agreement to the Contractor;
(b) confirming by email that it accepts this Agreement;
(c) instructing the Contractor (whether orally or in writing) to proceed with the provision of the Services; and
(d) making part or full payment of the Price (including any or all of the Deposit).
1.2 This Agreement will commence on the Commencement Date and will continue until the date this Agreement is terminated in accordance with its terms (Term).
2. Residential Building Contract
The Parties acknowledge and agree that:
(a)the Services under this Agreement do not include construction works for the Project;
(b) this Agreement does not in and of itself constitute a residential or domestic building contract for the purposes of any applicable domestic building Laws, and any residential or domestic building work in relation to the Project will be carried out under the Residential Building Contract;
(c) in relation to the construction works for the Project, the Parties intend to enter into a Residential Building Contract;
(d) any Residential Building Contract is a separate agreement from this Agreement;
(e) if the Parties enter into a Residential Building Contract at or around the Commencement Date under this Agreement, the Parties may agree to amendments to the Residential Building Contract (including in relation to commercial matters such as the contract sum and date for practical completion) at a later time, and prior to the construction works commencing under the Residential Building Contract, in the form of a written instrument varying the Residential Building Contract.
3. Services
3.1 In consideration of the Owner’s payment of the Price, the Contractor will provide the Services in accordance with this Agreement, whether itself or through its Personnel.
3.2 If this Agreement expresses a time within which the Services are to be provided, the Owner agrees that such time is an estimate only, and creates no obligation on the Contractor to provide the Services by that time.
4. Commencement
The Contractor will commence the provision of the Services within a reasonable time after the later of:
(a) the Commencement Date;
(b) receipt of payment of the Deposit in full (if applicable; and
(c) the satisfaction of any other conditions precedent contemplated by this Agreement.
5. Design Development
Where the Services involve the preparation and/or development of any designs for the Project, the Owner agrees to promptly review and approve any designs that the Contractor provides to the Owner for approval.
6. Variations
6.1 Subject to clause 6.2, the Owner may request a variation or change to the Services, including the timing for the provision of the Services, by providing written notice (including by email) to the Contractor, with details of the variation or change, (Variation Request).
6.2 The Contractor will not be obliged to comply with a Variation Request unless it:
(a) accepts the Variation Request, including any variation to the Price to effect the Variation Request (Price Variation), in writing; and
(b) the Price has been adjusted to reflect the Price Variation.
6.3 If the Contractor considers that any instruction or direction from the Owner constitutes a variation, then the Contractor will not be obliged to comply with such instruction or direction unless a Variation Request has been issued in accordance with clause 6.1.
6.4 Where the Services are varied or changed, or the costs of providing the Services increases, (Variation Event) and the cause of that Variation Event relates to, or is connected with, an event or circumstance beyond the Contractor’s reasonable control, the Owner agrees to pay the Contractor its reasonable additional costs and expenses that the Contractor may suffer or incur as result of the Variation Event, as a debt due and immediately payable.
7. Owner’s Obligations
The Owner agrees to:
(a) comply with this Agreement, the Contractor’s reasonable requests or requirements, and all applicable Laws; and
(b) provide all assistance, information, documentation, access, approvals, facilities, authorities, consents, licences and permissions reasonably necessary to enable the Contractor to comply with its obligations under this Agreement or at Law.
8. Personnel
The Owner acknowledges and agrees:
(a) that the selection of the Contractor’s Personnel is a matter for the Contractor alone;
(b) not to issue directions or instructions to the Contractor’s Personnel; and
(c) that if it has any concerns with respect to the Contractor’s Personnel, to approach the Contractor and to not raise such concerns with the Contractor’s Personnel directly.
9. Payment
9.1 The Owner must pay the Contractor the Price (including the Deposit, if applicable), any Expenses and all other amounts payable under this Agreement, in accordance with this Agreement.
9.2 The Contractor may submit a claim for payment to the Owner in accordance with the Payment Terms in the Schedule (Payment Claim).
9.3 Within 10 Business Days after receiving the Payment Claim, the Owner must pay the Contractor the amount set out in the relevant Payment Claim.
9.4 If any payment has not been made in accordance with the Payment Terms, the Contractor may (at its absolute discretion):
(a) immediately cease providing the Services, and recover, as a debt due and immediately payable from the Owner, its additional costs of doing so; and/or
(b) charge interest at a rate equal to 18% per annum, calculated daily and compounding monthly, on any such amounts unpaid after the due date for payment in accordance with the Payment Terms.
10. Site
The Owner agrees to provide the Contractor (and its Personnel) with access to the Site (and the facilities at the Site), and any other premises reasonably necessary for the Contractor to provide the Services, free from harm or risk to health or safety:
(a) at the times and on the dates requested by the Contractor; and/or
(b) to enable the Contractor to comply with its obligations under this Agreement or at Law,
(c) and the Owner agrees to pay the Contractor any additional costs that the Contractor may suffer or incur if the Owner fails to do so, as a debt due and immediately payable to the Contractor.
11. Warranties
The Owner represents, warrants and agrees that:
(a) there are no legal restrictions preventing it from entering into this Agreement;
(b) all information and documentation that it provides to the Contractor in connection with this Agreement is true, correct and complete;
(c) it has not relied on any representations or warranties made by the Contractor in relation to the Services (including as to whether the Services are or will be fit or suitable for the Owner’s particular purposes), unless expressly stipulated in this Agreement;
(d) the Services are provided to the Owner solely for the Owner’s benefit and the Owner will not (or will not attempt to) disclose, or provide access to, the Services to third parties without the Contractor’s prior written consent;
(e) any information, advice, material, work and services (including the Services) provided by the Contractor under this Agreement does not constitute legal, financial, merger, due diligence or risk management advice;
(f) it is not and has not been the subject of an Insolvency Event;
(g) if applicable, it holds a valid ABN which has been advised to the Contractor; and
(h) if applicable, it is registered for GST purposes.
12. Intellectual Property
12.1 As between the Parties:
(a) the Contractor owns all Intellectual Property Rights in the Contractor’s Materials; and
(b) the Owner owns all Intellectual Property Rights in the Owner’s Materials,
and nothing in this Agreement constitutes a transfer or assignment of any Intellectual Property Rights in the Contractor’s Materials or the Owner’s Materials.
12.2 As between the Parties, ownership of all Intellectual Property Rights in any New Materials or Improvements will at all times vest, or remain vested, in the Contractor upon creation. To the extent that ownership of such Intellectual Property Rights in any New Materials and/or Improvements do not automatically vest in the Contractor, the Owner agrees to do all acts necessary or desirable to assure the Contractor’s title to such rights.
12.3 The Contractor grants the Owner a non-exclusive, revocable, worldwide, non-sublicensable and non-transferable right and licence, for the duration of the Term, to use the Contractor’s Materials that it provides to the Owner, and the New Materials and Improvements, solely for the purposes for which they were developed and for the Owner’s use and enjoyment of the Services, as contemplated by this Agreement.
12.4 The Owner grants the Contractor a non-exclusive, irrevocable, perpetual, worldwide, sublicensable and non-transferable right and licence, to use the Owner’s Materials that it provides to the Contractor, for the purposes for which they were developed and for the Contractor and its Personnel to perform the Services and its obligations under this Agreement.
12.5 If the Owner or any of its Personnel have any Moral Rights in any material provided, used or prepared in connection with this Agreement, the Owner agrees to (and agrees to ensure that its Personnel) consent to the Contractor’s use or infringement of those Moral Rights.
12.6 In the use of any Intellectual Property Rights in connection with this Agreement, the Owner must not (and must ensure that its Personnel do not) infringe the Contractor’s or any third party’s Intellectual Property Rights.
12.7 This clause 12 will survive termination or expiry of this Agreement.
13. Confidential Information
13.1 Each Receiving Party agrees:
(a) not to disclose the Confidential Information of the Disclosing Party to any third party;
(b) to use all reasonable endeavours to protect the Confidential Information of the Disclosing Party from any unauthorised disclosure; and
(c) to only use the Confidential Information of the Disclosing Party for the purposes for which it was disclosed or provided by the Disclosing Party, and not for any other purpose.
13.2 The obligations in clause 13.1 do not apply to Confidential Information that:
(a) is required to be disclosed in order for the Parties to comply with their obligations under this Agreement;
(b) is authorised to be disclosed by the Disclosing Party;
(c) is in the public domain and/or is no longer confidential, except as a result of a breach of this Agreement; or
(d) must be disclosed by Law or by a regulatory authority, including under subpoena.
13.3 Each Party agrees that monetary damages may not be an adequate remedy for a breach of this clause 13. A Party is entitled to seek an injunction, or any other remedy available at law or in equity, at its discretion, to protect itself from a breach (or continuing breach) of this clause 13.
13.4 This clause 13 will survive the termination of this Agreement.
14. Australian Consumer Law
14.1 Certain legislation, including the Australian Consumer Law, and similar consumer protection laws and regulations, may confer the Owner with rights, warranties, guarantees and remedies relating to the provision of the Services by the Contractor to the Owner which cannot be excluded, restricted or modified (Statutory Rights).
14.2 For the purposes of clause 14.3 “our” and “us” refer to the Contractor, and “you” and “your” refer to the Owner.
14.3 Our Services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the Services, you are entitled:
(a) to cancel this Agreement with us; and
(b) to a refund for the unused portion, or to compensation for its reduced value.
You are also entitled to be compensated for any other reasonably foreseeable loss or damage. If the failure does not amount to a major failure you are entitled to have problems with the Services rectified in a reasonable time and, if this is not done, to cancel this Agreement and obtain a refund for the unused portion of this Agreement.
14.4 If the ACL applies to the Owner as a consumer, nothing in this Agreement excludes the Owner’s Statutory Rights as a consumer under the ACL. The Owner agrees that the Contractor’s liability for the Services provided to an entity defined as a consumer under the ACL is governed solely by the ACL, this Agreement and any other applicable Laws.
14.5 Subject to the Owner’s Statutory Rights, the Contractor excludes all express and implied warranties, and all material, work and services (including the Services) are provided to the Owner without warranties of any kind, either express or implied, whether in statute, at Law or on any other basis.
14.6 This clause 14 will survive the termination or expiry of this Agreement.
15. Exclusions to liability
15.1 Despite anything to the contrary, to the maximum extent permitted by law, the Contractor will not be liable for, and the Owner waives and releases the Contractor from and against, any Liability caused or contributed to by, arising from or in connection with:
(a) the Owner or its Personnel’s acts or omissions;
(b) any use or application of the Services by a person or entity other than the Owner, or other than as reasonably contemplated by this Agreement;
(c) any works, services, goods, materials or items which do not form part of the Services (as expressed in this Agreement), or which have not been provided by the Contractor;
(d) any Third Party Inputs;
(e) the Services being unavailable, or any delay in the Contractor providing the Services to the Owner, for whatever reason; and/or
(f) any event outside of the Contractor’s reasonable control.
15.2 This clause 15 will survive the termination or expiry of this Agreement.
16. Limitations on liability
16.1 Despite anything to the contrary, to the maximum extent permitted by law:
(a) neither Party will be liable for Consequential Loss;
(b) a Party’s liability for any Liability under this Agreement will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the acts or omissions of the other Party (or any of its Personnel); and
(c) the Contractor’s aggregate liability for any Liability arising from or in connection with this Agreement will be limited to the Contractor resupplying the Services to the Owner or, in the Contractor’s sole discretion, to the Contractor repaying the Owner the amount of the Price paid by the Owner to the Contractor in respect of the supply of the relevant Services to which the Liability relates.
16.2 This clause 16 will survive the termination or expiry of this Agreement.
17. Termination
17.1 Either Party OR the Contractor may terminate this Agreement or any relevant Order at any time by giving 30 days’ notice in writing to the other Party OR the Owner.
17.2 This Agreement will terminate immediately upon written notice by:
(a) the Contractor, if:
(1) the Owner (or any of its Personnel) breach any material provision of this Agreement and that breach has not been remedied within 10 Business Days of being notified by the Contractor;
(2) the Owner fails to provide the Contractor with clear or timely instructions or information to enable the Contractor to provide the Services;
(3) for any other reason outside the Contractor’s control which has the effect of compromising the Contractor’s ability to provide the Services; or
(4) the Owner is unable to pay its debts as they fall due; and
(b) the Owner, if the Contractor:
(1) is in breach of a material term of this Agreement, and that breach has not been remedied within 10 Business Days of being notified by the Owner; or
(2) is unable to pay its debts as they fall due.
17.3 Upon expiry or termination of this Agreement:
(a) the Contractor will immediately cease providing the Services;
(b) the Owner agrees that any payments made by the Owner to the Contractor are not refundable to the Owner, and the Owner is to pay for all Services provided prior to termination, including Services in relation to which a Payment Claim has not yet been issued to the Owner, and all other amounts due and payable under this Agreement;
(c) by the Contractor pursuant to clauses 17.2(a)(1), (2) or (4) or the Owner, pursuant to clause 17.1, the Owner also agrees to pay the Contractor its additional costs arising from, or in connection with, such termination; and
(d) the Owner agrees to immediately return to the Contractor (where possible), or delete or destroy (where not possible to return), any of the Contractor’s property (including any of its Confidential Information, the Contractor’s Materials, New Materials and Improvements and any of the Contractor’s Intellectual Property).
17.4 The Contractor will retain the Owner’s documents (including copies) as required by law or regulatory requirements. The Owner’s express or implied agreement to this Agreement constitutes its authority for the Contractor to retain or destroy documents in accordance with the statutory periods, or on expiry or termination of this Agreement.
17.5 Termination of this Agreement will not affect any rights or liabilities that a Party has accrued under it.
17.6 This clause 17 will survive the termination or expiry of this Agreement.
18. GST
18.1 If GST is payable on any supply made under this Agreement, the recipient of the supply must pay an amount equal to the GST payable on the supply. That amount must be paid at the same time that the consideration is to be provided under this Agreement and must be paid in addition to the consideration expressed elsewhere in this Agreement, unless it is expressed to be inclusive of GST. The recipient is not required to pay any GST until the supplier issues a tax invoice for the supply.
18.2 If an adjustment event arises in respect of any supply made under this Agreement, a corresponding adjustment must be made between the supplier and the recipient in respect of any amount paid by the recipient under this clause, an adjustment note issued if required, and any payments to give effect to the adjustment must be made.
18.3 If the recipient is required under this Agreement to pay for or reimburse an expense or outgoing of the supplier, or is required to make a payment under an indemnity in respect of an expense or outgoing of the supplier, the amount to be paid by the recipient is to be reduced by the amount of any input tax credit in respect of that expense or outgoing that the supplier is entitled to.
18.4 The terms “adjustment event”, “consideration”, “GST”, “input tax credit”, “recipient”, “supplier”, “supply”, “taxable supply” and “tax invoice” each has the meaning which it is given in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
19. Disputes
19.1 If a dispute or difference arises out of or in connection with the Contract (Dispute), either Party may give notice to the other Party setting out the details of the Dispute (Notice of Dispute).
19.2 Within 5 Business Days of receiving the notice of Dispute, the Parties must meet to resolve the Dispute.
19.3 If the Parties do not resolve the Dispute within 15 Business Days of receipt of the Notice of Dispute, the Dispute may be referred to litigation.
19.4 Nothing in this clause 19 will prejudice the right of either Party to institute proceedings to seek injunctive or urgent declaratory relief.
20. General
20.1 Amendment: This Agreement may only be amended by written instrument executed by the Parties.
20.2 Assignment: A Party must not assign or deal with the whole or any part of its rights or obligations under this Agreement without the prior written consent of the other Party (such consent is not to be unreasonably withheld).
20.3 Counterparts: This Agreement may be executed in any number of counterparts that together will form one instrument.
20.4 Email: The Owner agrees that the Contractor is able to send electronic mail to the Owner and receive electronic mail from the Owner. The Owner releases the Contractor from any Liability the Owner may have as a result of any unauthorised copying, recording, reading or interference with that document or information after transmission, for any delay or non-delivery of any document or information and for any damage caused to the Owner’s system or any files by a transfer.
20.5 Entire agreement: This Agreement contains the entire understanding between the Parties, and supersedes all previous discussions, communications, negotiations, understandings, representations, warranties, commitments and agreements, in respect of its subject matter.
20.6 Further assurance: Each Party must promptly do all things and execute all further instruments necessary to give full force and effect to this Agreement and their obligations under it.
20.7 Force Majeure: The Contractor will not be liable for any delay or failure to perform its obligations under this Agreement if such delay is due to any circumstance beyond its reasonable control.
20.8 Governing law: This Agreement is governed by the laws of New South Wales. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in [New South Wales] and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.
20.9 Notices: Any notice given under this Agreement must be in writing addressed to the relevant address last notified by the recipient to the Parties. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission by email.
20.10 Online execution: This Agreement may be executed by means of such third party online document execution service as the Contractor nominates subject to such execution being in accordance with the applicable terms and conditions of that document execution service.
20.11 Publicity: The Owner agrees that the Contractor may advertise or publicise the broad nature of the Contractor’s provision of the Services to the Owner, including on the Contractor’s website or in its promotional material.
20.12 Relationship of Parties: This Agreement is not intended to create a partnership, joint venture, employment or agency relationship between the Parties.
20.13 Severance: If a provision of this Agreement is held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from this Agreement without affecting the validity or enforceability of the remainder of that provision or the other provisions in this Agreement.
21. Definitions
In this Agreement, unless the context otherwise requires, capitalised terms have the meanings given to them in the Schedule and these general conditions, and:
ACL or Australian Consumer Law means the Australian consumer laws set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth), as amended, from time to time.
Agreement means these general conditions and any documents attached to, or referred to in, each of them, but does not include any version of the Residential Building Contract executed between the Parties.
Business Day means a day on which banks are open for general banking business in New South Wales, excluding Saturdays, Sundays and public holidays.
Commencement Date means the date this Agreement is accepted in accordance with its terms.
Confidential Information includes information which:
(a) is disclosed to the Receiving Party in connection with this Agreement at any time;
(b) is prepared or produced under or in connection with this Agreement at any time;
(c) relates to the Disclosing Party’s business, assets or affairs; or
(d) relates to the subject matter of, the terms of and/or any transactions contemplated by this Agreement,
whether or not such information or documentation is reduced to a tangible form or marked in writing as “confidential”, and howsoever the Receiving Party receives that information.
Consequential Loss includes any consequential loss, special loss, indirect loss, real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise.
Contractor’s Materials means all work, models, processes, technologies, strategies, materials, information, documentation, and services that the Contractor may provide to the Owner under this Agreement, and which may contain material which is owned by or licensed to the Contractor, and is protected by Australian and international laws.
Deliverables means any materials, goods, items or other deliverables forming part of the Services, as particularised in the Schedule.
Disclosing Party means the party disclosing Confidential Information to the Receiving Party.
Expenses means any disbursements, including travel and accommodation costs and third party costs, reasonably and directly incurred by the Contractor for the purpose of the provision of the Services.
Improvements means any development, modification, adaptation or improvement of the Contractor’s Materials or any New Materials made by or on behalf of either Party (or any of their respective Personnel), or in respect of which Intellectual Property Rights are acquired by, either Party during the Term.
Insolvency Event means any of the following events or any analogous event:
(a) a Party disposes of the whole or any part of the Party’s assets, operations or business other than in the ordinary course of business;
(b) a Party ceases, or threatens to cease, carrying on business;
(c) a Party is unable to pay the Party’s debts as the debts fall due;
(d) any step is taken by a mortgagee to take possession or dispose of the whole or any part of the Party’s assets, operations or business;
(e) any step is taken for a party to enter into any arrangement or compromise with, or assignment for the benefit of, a Party’s creditors or any class of a Party’s creditors; or
(f) any step is taken to appoint an administrator, receiver, receiver and manager, trustee, provisional liquidator or liquidator of the whole or any part of a Party’s assets, operations or business.
Intellectual Property means any domain names, know-how, inventions, processes, trade secrets or Confidential Information; or circuit layouts, software, computer programs, databases or source codes, including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing.
Intellectual Property Rights means for the duration of the rights in any part of the world, any industrial or intellectual property rights, whether registrable or not, including in respect of Intellectual Property.
Laws means all applicable laws, regulations, codes, guidelines, policies, protocols, consents, approvals, permits and licences, and any requirements or directions given by any person with the authority to bind the relevant Party in connection with this Agreement or the provision of the Services.
Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or a Party to this Agreement or otherwise.
Moral Rights has the meaning given in the Copyright Act 1968 (Cth).
New Materials means all Intellectual Property developed, adapted, modified or created by or on behalf of the Contractor or the Owner or any of their respective Personnel in connection with this Agreement or the provision of the Services, whether before or after the date of this Agreement.
Owner’s Materials means all work, models, processes, technologies, strategies, materials, information, documentation and services (including Intellectual Property), owned, licensed or developed by or on behalf of the Owner or its Personnel before the Commencement Date and/or developed by or on behalf of the Owner or its Personnel independently of this Agreement.
Payment Claim has the meaning given in clause 9.2.
Personnel means, in respect of a Party, any of its employees, consultants, suppliers, subcontractors or agents.
Price means the price set out in the Schedule and includes the Deposit, if applicable.
Project means the project in relation to which the Services are provided.
Receiving Party means the party receiving Confidential Information from the Disclosing Party.
Residential Building Contract means the building contract that the Parties may enter into in relation to the Project, a form of which is attached at Attachment 1.
Schedule means the schedule to this Agreement.
Services means the services that the Contractor agrees to perform under this Agreement (including the provision of any Deliverables), as further particularised in the Schedule.
Statutory Rights has the meaning given in clause 14.1.
Term has the meaning given in clause 1.2.
Third Party Inputs means third parties or any goods and services provided by third parties, including customers, end users, suppliers, transportation or logistics providers or other subcontractors which the provision of the Services may be contingent on, or impacted by.
22. Interpretation
In this Agreement, unless the context otherwise requires:
(a) a reference to this Agreement or any other document includes the document, all schedules and all annexures as novated, amended, supplemented, varied or replaced from time to time;
(b) a reference to any legislation or law includes subordinate legislation or law and all amendments, consolidations, replacements or re-enactments from time to time;
(c) a reference to a natural person includes a body corporate, partnership, joint venture, association, government or statutory body or authority or other legal entity and vice versa;
(d) no clause will be interpreted to the disadvantage of a Party merely because that Party drafted the clause or would otherwise benefit from it;
(e) a reference to a party (including a Party) to a document includes that party’s executors, administrators, successors, permitted assigns and persons substituted by novation from time to time;
(f) a reference to a covenant, obligation or agreement of two or more persons binds or benefits them jointly and severally;
(g) a reference to time is to local time in New South Wales; and
(h) a reference to $ or dollars refers to the currency of Australia from time to time.