1. Definitions and Interpretation
In these Terms, unless the context indicates a contrary intention:
Approval Requirements has the meaning given in clause 9(a);
Building Tender Service means any dealing with any builder or construction business that Superdraft undertakes on behalf of the Client and/or in relation to any Services and includes the preparation or revision of any documentation and/or any provision of an independent bill of quantities for any project;
Consequential Loss includes special, indirect, consequential, incidental or punitive damages or damages for loss of expected savings, loss of use, loss of opportunity, loss of profit, loss of revenue, increased financing costs, loss arising from delay and whether or not the possibility or potential extent of the loss or damage was known or foreseeable, and whether arising from a claim under indemnity, contract, tort (including negligence) in equity, statute or otherwise;
Client means the person who engages and/or receives the Services of Superdraft;
Design means such design or designs that the Superdraft has agreed to provide to the Client as part of the Services;
Design Amendments has the meaning given in clause 4(a);
Designer means any designer sub-contracted by Superdraft by any subcontract agreement or arrangement;
Design to Budget Service means the service in which the Client engages Superdraft to receive Preliminary Building Cost Estimates from a third party builder arranged by Superdraft and provide a total of 3 rounds of design changes to meet the Clients budget;
Due Date has the meaning given in clause 2(b);
Force Majeure includes strike, lockout, riot, industrial action, fire, storm, tempest, act of God, material shortage, government law or regulation or requirement or any other cause beyond the control of the Supplier;
GST means Goods and Services Tax as defined in A New Tax System (Goods and Services Tax) Act 1999 (Cth);
Insolvency Event means:
(a) to any person being a corporation:
(i) the entry into liquidation or provisional liquidation or an application being made for it to be wound up;
(ii) having a receiver, manager, receiver and manager, administrator, controller (as defined in section 9 of the Corporations Act 2001 (Cth) or similar officer appointed to it or any of its assets;
(iii) making an assignment for the benefit of or entering into an arrangement or composition with its creditors; or
(iv) being insolvent or presumed insolvent under the Corporations Act 2001 (Cth) or stopping payment of any of its debts;
(b) to any person:
(i) anything occurring under the law of any applicable jurisdiction to the person (other than under the Bankruptcy Act 1966 (Cth)) having a substantially similar effect to the events specified in subparagraph (a), above;
(ii) a judgment for an amount equal to not less than $50,000 which is not satisfied, compromised to the satisfaction of the judgment creditor or stayed within 7 days of its entry; or
(iii) a bankruptcy notice being served on the person and not satisfied, compromised with the creditor or stayed within 13 days after the notice is served;
Intellectual Property means all present and future rights conferred under statute, common law or equity in relation to intentions (including patents), registered and unregistered trademarks, registered and unregistered designs, look and feel, circuit layouts and all other rights resulting from intellectual activity in, but not limited to, the industrial, scientific, literary or artistic fields;
Loss means any expense, cost, loss or damage of any kind and includes Consequential Loss and/or any fine or penalty imposed by a statutory or other authority;
Self-Promotion use of designs, documentation, reports and images for websites, social media, awards, brochures, business cards or potential sales to third parties.
Services any services provided or procured by Superdraft in relation to the Client’s project or otherwise performed in connection with any request of the Client.
Superdraft means the architecture Services company that the Client engages with.
Terms means all terms in this document.
In these Terms:
(a) headings are for convenience only and do not affect interpretation;
(b) words denoting the singular include the plural and vice versa, words denoting individuals or persons include bodies corporate and vice versa, references to documents or agreements also mean those documents or agreements as changed, novated or replaced;
(c) references to any party, person or entity as the case requires includes their executors, administrators, permitted assigns and successors;
(d) references to legislation or provisions of legislation include changes or re-enactments of the legislation and statutory instruments and regulations issued under the legislation;
(e) references to an amount of money is a reference to the amount in the lawful currency of the Commonwealth of Australia;
(f) obligations under these Terms affecting more than one party bind them jointly and each of them severally; and
(g) no rule of construction will apply to the disadvantage of one party on the basis that that party put forward or drafted these Terms or any part of these Terms.
2. Payment terms
(a) Superdraft will issue, at times determined by Superdraft in its sole discretion, tax invoices to the Client for fees for Services supplied to the Client and all fees, charges and moneys otherwise due and payable to Superdraft from time to time.
(b) The Client agrees that it must pay, without any deduction or setoff, the full amount of any tax invoice issued by Superdraft within the period stipulated for payment or if there is no stipulation, within 7 days from the date on which the tax invoice is generated by Superdraft (Due Date).
(c) If the provision of Services to the Client end prior to completion of all Services or any part thereof for any reason, including but not limited to termination of the Services by the Client or Superdraft, the Client will be sent an invoice and be liable to pay for all Services already provided but not yet paid for.
(d) If, for any reason, the Client delays any aspect of the Services for more than 14 days, an invoice will be issued on the 15th day for payment for such of the Services as have been provided so far.
(e) If the Client opts to cancel their contract with Superdraft and do not require further services, the Client is responsible to pay for work completed to date as determined fair and reasonable by Superdraft.
(f) If the Client opts to cancel their contract with Superdraft at the start of their project, directly after a deposit has been paid, Superdraft will refund to the client the deposit, less $300 + GST administration fee. If the deposit is less than $300 + GST, then the full deposit will be withheld to cover administration costs. The refund will be paid by Superdraft into the nominated bank account provided by the client in the next pay cycle and may take up to 30 days.
3. Overdue Amounts
(a) Interest at the rate of 5% above the Reserve Bank of Australia cash rate must be paid by the Client on any amount not paid by the Due Date. The interest will be calculated daily and compounded monthly but in no circumstances will the interest charged exceed 25% per annum.
(b) The Client agrees to pay on a full indemnity basis all costs and expenses (including, but not limited to, legal costs, administrative costs, commissions paid to any commercial or mercantile agent and any dishonour fees), incurred by Superdraft in connection with the recovery of overdue amounts and/or the enforcement of any of these Terms or any attempt by or on behalf of Superdraft to do either or both of those things. All such amounts are deemed a debt incurred by the Client to Superdraft and must be paid within 7 days after the receipt of an invoice for those amounts from Superdraft.
4. Rounds of Design
(a) Unless otherwise stated in writing, if Superdraft has agreed to provide preliminary design services as part of the Services, the Services shall include, subject to clause 4(b), two (2) rounds of amendments to the design the subject of the preliminary design services by Superdraft (Design Amendments).
(b) The Design Amendments contemplated by clause 4(a) are limited to design adjustments and implementation of feedback of minor nature and magnitude and must not exceed a total of 20% of the total preliminary design fee. The Design Amendments do not include:
(i) anything that Superdraft, in its absolute discretion, considers substantial changes or re-designing of any design or any change or departure from the relevant scope of Services; and/or
(ii) any attendance at any site or place by Superdraft or any of its employees or agents unless otherwise agreed in writing.
(c) Any changes to any Design (including changes by or initiated by the Client) after the Design Amendments have been finalised will incur additional charges at the rate(s) ordinarily charged by Superdraft.
(d) If the Client provides Superdraft with Preliminary Design or DA drawings in the context of a Preliminary Design Review Service, no site visit will be included or required.
5. Intellectual Property
(a) The parties acknowledge and agree that all existing and future Intellectual Property related to, or arising from, the whole or part of any Services will vest in Superdraft.
(b) Superdraft grants to the Client a non-exclusive licence to use such Intellectual Property arising from Services provided to the Client to such extent and for such time as is necessary for use of the Services by the Client for their obvious and manifest purpose (IP Licence).
(c) No transfer or sub-licence of the IP Licence is permitted without the written consent of Superdraft which consent shall not be unreasonably withheld.
6. Design to Budget & Tender Services
(a) The Client acknowledges and agrees that Superdraft may in connection with the Building Tender Services receive payment from third parties for Superdraft’s actual or estimated administrative (including wages and all operational costs whatsoever) costs incurred in connection with the Building Tender Services.
(b) Without limiting clause 12, the Client acknowledges and agrees that although Superdraft may conduct inquires to satisfy itself of the suitability of any builder or any other third party engaged, recommended, or introduced to any person, by Superdraft in relation to any Services, Superdraft will in no circumstances be liable for any acts or omissions (including negligence) of such builder or third party including for any Loss suffered by any person arising from or in connection with such acts or omissions.
(c) The Client acknowledges that in connection to the Design to Budget service, Superdraft is basing the preliminary building cost estimate off preliminary designs designs and in no circumstance be liable or responsible for the accuracy of the Preliminary Building Costs.
7. Client Meetings
(a) The Services include only one face-to-face site visit or client meeting unless specified otherwise in any quote.
(b) Superdraft is entitled to attend any face-to-face meeting via electronic medium such video link or from remote access.
8. Council Lodgement & Meetings
(a) Attending local government council or other responsible authority meetings is not included in the Services unless stated otherwise in any quote.
(b) Attendance at such meetings incurs a standard hourly rate of $128 per hour (excluding GST) or part thereof.
(c) Any submissions (including the preparation or presentation of any drawings or attendance of any meeting) to any local government council or other responsible authority on behalf of the Client can be requested in writing and will incur an additional fee unless stated otherwise in a relevant quote by Superdraft.
9. Governmental Approvals
(a) Subject to clause 9(c), Superdraft will use its best endeavours to assist and advise the Client with respect to satisfying all applicable laws, standards, codes and any approvals, authorities, licenses and permits which are required from governmental, municipal or other responsible authorities that are relevant to the lawful implementation of the Design (Approval Requirements) provided the Client and Designer at all times cooperate as required by Superdraft and the Designer endorses the Design.
(b) The Client acknowledges and agrees that Superdraft cannot, and does not, make any guarantee, warranty or representation:
(i) that any Design or any part of any Services will be approved by any responsible authority; or
(ii) to the outcome of the application of any Approval Requirements to the Design or any part of the Services.
(c) The Client shall pay fees for Services provided by Superdraft with respect to Approval Requirements at the rates agreed to by Superdraft in any quote or, failing agreement, at the rate of $128 (excluding GST) per hour of work or part thereof. Superdraft may refuse to provide such Services if the Client does not agree to pay or otherwise fails to pay those fees.
(d) Subject to clause 9(e), if drawings or documents provided or produced by Superdraft for the purpose of satisfying Approval Requirements do not satisfy those Approval Requirements, Superdraft will, if reasonable and possible to do so, use its best endeavours to rectify such documents or drawings so they satisfy those Approval Requirements without charge.
(e) Clause 9(d) does not apply to any drawings or documents that do not satisfy Approval Requirements because of anything that, in Superdraft’s reasonable opinion, has been included, done, or omitted, by or on behalf of the Client against Superdraft’s advice.
(f) The Client shall pay fees for the preparation of all documents and drawings relating to any Approval Requirements are prepared by Superdraft in connection with any Services even if such drawings or documents are not ultimately required or used in the provision of Services.
10. Issuing Drawings
(a) Unless otherwise agreed upon in writing, all drawings and all other documents arising from or connected with the Services will be provided to the Client in digital format.
11. Additional Scope
(a) Additional work undertaken by Superdraft that is not included in a relevant quotation for Services (including changes or additions to Services beyond the scope of such quotation) will be paid for by the Client at a rate of $128 (excluding GST) per hour of work or part thereof.
(b) Superdraft will only produce drawings suitable for building license / construction certificates. If a relevant builder requests additional drawings or documents during any construction phase this may incur additional charges.
(c) The final quote provided to and accepted by the Client includes only items specifically mentioned within the Inclusions of the quotation. Should the Client wish to request further Services or increase their scope during the course of the relationship, this can be done by amending the quote accordingly, in writing, and being accepted by the Client in writing which will incur further costs. It is up to the Client to carry out due-diligence to confirm all potential costs associated with the project. Superdraft will not be held liable for such additional costs.
(d) The Client may have the benefit of consumer guarantees under the Australian Consumer Law. Otherwise, all express or implied guarantees, warranties, representations, or other terms and conditions relating to any Services, Design and/or these Terms not contained in these Terms are excluded to the maximum extent permitted by law.
12. Project Delays
(a) Superdraft will keep the Client informed of any delays and the timeline to remedy these delays.
(b) Superdraft will not be responsible for any delay in delivering the Project if such delay is the result of an act, omission or neglect by the Client.
(c) The Client acknowledges and agrees that in the event of a delay, regardless if caused by Superdraft or the Client:
(i) any time frames, milestones and/or deadlines will be extended by the number of days in which the cause of the delay was current;
(ii) the delay will not be considered a breach of this Agreement and the Client will not be entitled to a refund of any money paid or waiver of any obligation concerning payments.
(a) The Client acknowledges and agrees that Superdraft is permitted to use any designs, documentation, reports and images produced by Superdraft for self-promotion through marketing and advertising unless agreed upon by Superdraft in writing prior to engaging the services.
(b) If a design was created by a third party and provided to Superdraft by the Client for services then the Parties acknowledge and agree that Superdraft can use the documentation and images produced by Superdraft for self-promotion as long as Superdraft acknowledges the original source of the design, unless agreed upon by Superdraft in writing prior to engaging the services.
The Client acknowledges and agrees that Superdraft may subcontract any of its obligations of this Agreement to a third party (or multiple third parties) without notification to or consent from the Client.
15. Limitation of liability
(a) The Client may have the benefit of consumer guarantees under the Australian Consumer Law. Otherwise, all express or implied guarantees, warranties, representations, or other terms and conditions relating to any Services, Design and/or these Terms not contained in these Terms are excluded to the maximum extent permitted by law.
(b) Nothing in these Terms excludes, restricts or modifies any right or remedy or any guarantee or other term or condition implied or imposed by any legislation which cannot lawfully be excluded or limited (Statutory Rights).
(c) Subject to Superdraft’s obligations under the Statutory Rights, and to the maximum extent permitted by law, the maximum aggregate liability of Superdraft for all claims under or relating to these Terms or supply of Services whether in contract, tort (including without limitation negligence), in equity, under statute, or on any other basis is limited as follows:
(i) Superdraft shall have no liability to the Client for any Consequential Loss;
(ii) Superdraft’s total aggregate liability for Loss, however arising, is limited to payment of the price paid by the Client to Superdraft for the Services that gave rise to the Loss.
(d) Superdraft will not be liable for failure or for any Loss resulting from or connected to the failure to supply or deliver the Services caused by Force Majeure.
(a) No waiver of any of the provisions of these Terms by Superdraft will be effective unless made in writing and signed by Superdraft.
(b) No forbearance, delay or indulgence by Superdraft in enforcing the provisions of these Terms shall prejudice or restrict the rights of Superdraft, nor shall any waiver of those rights operate as a waiver of any subsequent breach.
(c) Superdraft may vary these Terms at any time in its absolute discretion. No variation of any of these Terms will be effective unless the variation is in writing signed by Superdraft and 30 days’ notice in writing of the variation is given by Superdraft to the Client.
17. Dispute Resolution
(a) This clause does not apply where there is a dispute concerning a payment or any amount owing by the Client to Superdraft.
(b) Subject to clause 17(f) any dispute which arises between the parties in connection with this agreement (dispute) must be dealt with in accordance with the requirements of this clause 17, before either party will be entitled to commence proceedings against the other party in respect of the dispute.
(c) The party claiming that a dispute has arisen (complainant) must give the other party a written notice setting out a detailed explanation of the nature of the dispute; and what action the complainant thinks will resolve the dispute (dispute notice).
(d) Within 10 business days of the dispute notice being received by the other party, a nominated senior executive of each party must meet, act in good faith and use best endeavours to resolve the dispute at that meeting, or such subsequent meetings as may be reasonably required.
(e) If the dispute is not resolved pursuant to clause 17(d) within 30 days of the dispute notice being received by the other party, the parties agree to attend a privately held mediation with a mediator appointed by the nominated senior executive or both parties and in the absence of agreement within 7 days of disagreement by such mediator as appointed by the President, or person in like office of the Resolution Institute.
(f) If the dispute is not resolved within a further 30 days pursuant to clause 16(e) then either party may commence proceedings against the other party in respect of the dispute.
(g) Nothing in this clause 17 prevents a party from seeking urgent injective or similar relief from a court.
(a) Superdraft may terminate these Terms and the supply of any Services:
(i) immediately and without prior notice, if the Client is in default of any obligation owed to any amount of money to Superdraft whosoever arising;
(ii) if the Client is in material breach of these Terms which is not remedied 7 days after written notice by Superdraft of the substance of the breach.
(b) Either party may terminate these Terms if they are not in material breach of these Terms and an Insolvency Event occurs to either party.
19. Entire agreement
(a) These Terms supersede all prior agreements, arrangements and undertakings between the parties and relating to the Services provided by Superdraft to the Client.
(a) These Terms shall be governed by and construed in accordance with the laws for the time being in force in Western Australia and the parties agree to submit to the exclusive jurisdiction of the courts and tribunals of Western Australia.
(a) Should any part of these Terms be or become invalid, that part shall be severed from these Terms. Such invalidity shall not affect the validity of the remaining provisions of these Terms.